Synopsis: The problems associated with Anti defection law got highlighted again in the Puducherry assembly issue. The law was unable to provide stability to the ruling government which led to the imposition of president rule in the state.

Background:

• Some MLAs from the ruling government resigned from the Puducherry assembly. This eventually resulted in the imposition of the president’s rule.
• This is not only the case with Puducherry, similar instances have been seen in the past in Madhya Pradesh and Karnataka as well. Due to that, experts are now pointing towards the flaws of Anti defection law.

About Anti Defection Law:

• The 10th schedule was added to the constitution by the 52nd amendment in 1985. This deals with the Anti defection process.
• The objective behind such a law was to prevent political defections and provide stability to the ruling government.
• As per the 10th schedule, a member can be disqualified if he/she votes contrary to his party directions. The speaker/chairman is the final deciding authority in this regard.
• The law is applicable to Parliament as well as state legislatures. Further, any person disqualified for defecting cannot get a ministerial position unless he/she gets re-elected.

Problems with Anti Defection Law:

• First, the MPs or MLAs are supposed to act as per the party’s command and not by their own judgment. This undermines representative democracy as they are unable to put forward the demands of the people.
• Second, the scope of defection is very wide as it is applicable to every bill. It is not restricted to important bills only like no-confidence motion, money bill, etc. moreover, it is also applicable to members of Rajya Sabha and legislative councils which don’t have a say in the stability of the government.
• Third, it ensures that legislators are accountable to the party and not to voters. Thereby it reduces their status to mere party agents. 
• Fourth, the elected legislators are unable to ensure independent accountability of the executive. They scrutinise the working as per the collective opinion of the party. This is against the spirit of the Parliamentary system which was adopted to ensure robust accountability.
• Fifth, the Anti Defection Law also erodes the constructive role of legislatures. Fruitful discussion and debates can’t happen when the legislators are not allowed to freely express their opinions.
• Sixth, the stability of the government is hampered when multiple resignations are used to topple it as seen in the case of Puducherry. The anti defection law fails to prevent such a thing.
• Lastly, there is no time limit in which the speaker/chairman takes a call on disqualification. This has led to the creation of unusual situations like opposition members taking ministerial positions as seen in the last Andhra Pradesh legislative assembly term.

Way Forward:

• The scope of anti defection law needs to be re-examined. It will enable the MPs to perform the dual role as a delegate of the constituency and a national legislator effectively.
  • For example, in the recent vote on the impeachment of former U.S. President Donald Trump, seven members from his party voted to remove him.
• The voters should be more cautious while casting their votes. Many defectors in States such as Karnataka and Madhya Pradesh got re-elected in the by-polls, thereby encouraging them to do future defections.
• The speaker/chairman should give decisions within 3 months as advised by the Supreme court.
• The ultimate solution to defection lies in the creation of robust exit barriers by political parties. It includes an opportunity to rise on merits within a party rather than on inheritance.

To sum up, we can say that the anti defection law has been unable to control the defections. It has reduced the accountability of executives by the legislatures and been unable to provide the desired stability to the elected government.  

Synopsis: Recently Facebook India head appealed in the Supreme Court against the summon by Delhi Assembly.  SC should avoid any interference in the assembly’s right to discussion on important public matters.  

Background  

A few months ago, the Delhi Legislative assembly issued a notice to the head of Facebook India, Ajit Mohan. The notice was for him to appear in front of the Assembly’s Peace and Harmony Committee. This committee is investigating the Delhi Riots.  

Ajit Mohan filed a petition against this notice in Supreme Court. Hearing on this case is ongoing.  

This petition will have implications on the separation of powers, federalism and fundamental rights in India.  

Why Court should not interfere in Assembly’s right to discussion 

Set of rights and immunities granted to Parliament are called Parliamentary privileges. The House of Commons has been granted the right to free speech and the right to call for evidence and witnesses in the House since 1689. Both Parliament and State Assemblies are granted with same privileges.  

There are some misleading doubts that State Assemblies are on par with parliament on these matters.  

1. Firstly, discussion in legislatures are not only a part of law-making, it is also used in its non-judicial power of inquiry. This inquiry power is inherent to the legislature as it is the voice of the people of the state. For example, states inquire into the possible ecological implications of a nuclear waste site within the State. States often hear testimony from soldiers and pass resolutions to honour the armed forces.  
2. Secondly, it is not necessary that all discussions lead to lawmaking. Some discussions end with the arguments only. Thus, the interference of courts before the conclusion of the debate will be pointless.  
3. Third, Co-operative federalism cannot be promoted if assemblies are barred from even discussing matters, which are beyond their legislative competence.  
4. Fourth, Judiciary ought not to enter the domain where it will examine the proceedings of the house. It is against the separation of power.   
5. Fifth, the experiences of Canada and Australia in this matter also, go against any Court mandated restrictions on legislative competence.  

Free speech in the house is a landmark of liberty. It allows elected representatives on behalf of people to challenge the most powerful people of the land. It would be incorrect if the Court appoints itself as an arbiter of legislative discussions.  

[Answered] “For development of the nation, it is critical for institutions of national importance to work independently and without any political interference”. Comment.

Synopsis: The ruling party who dominates the lower house is sometimes seen undermining the role of the Upper House. Such an approach dilutes the principle of bicameralism and undermines the spirit of the constitution.

Background:

• The recent passage of the Prevention of Slaughter and Preservation of Cattle Bill in Karnataka’s legislative council has attracted criticism.
• The reason for criticism is the bill was passed through a voice vote in place of a division vote as demanded by the opposition.
• The opposition parties had a majority and didn’t support the bill. This has created an impression that the bill was passed without majority support. 

Instruments to undermine the Upper House:

• First, the use of voice vote undermines the majority of opposition members in the upper house. In this process, the presiding officer gives a decision as per his judgment, because the names or numbers of legislators voting on each side are not recorded.
  • A similar thing was seen in the passing of controversial farm laws by Rajya Sabha in 2020.
• Second, the presiding officer sometimes declares a bill as a ‘money bill’ even if it is not covered under the definition of a money bill. 
  • As the second house can only give recommendations on it and can’t stop its passage.
  • For Example, Aadhar, electoral bonds, retrospective validation of foreign political contribution, etc. passed as money bills.
• Third, the government promulgates the ordinance and frequently re-promulgates it. 
  • This is an abuse of temporary legislative power given to the executive who tries to give it permanency by re-promulgation. 
  • The objective is to forbid the second house from performing its constitutional role as the majority is already enjoyed in the lower house.

Role of Upper House:

• First, it gives credible second opinions on bills introduced by the ruling party in the lower house.
• Second, to prevent the country from the brute will of the majority of one party in the lower house. This becomes crucial as even the courts are barred from intervening in the legislative process.
• Third, it duly represents the interests of states at the national level. Rajya Sabha is representative of all the Indian states.
• Fourth, it upholds the principle of separation of powers in a robust way. The majority of the executive is often chosen from lok sabha by the ruling party. This allows the executive domination over the legislature and easily passes bills in Lok Sabha.

Way Forward:

• The speaker/chairman of the house must act in the spirit of positive morality. It would allow him to function objectively.
• The demands of opposition should be respected. For example, division vote instead of voice vote should be used.
• The money bill issue can be rightly tackled if SC hearing the case over its misuse, gives its verdict in due time.
• The executive and ruling party must respect the dissent of the Second chamber as done in case of repeal of the 42nd amendment. 
  • Janta Government was not able to completely repeal it as Congress enjoyed a significant majority in Rajya Sabha.
• Greater focus on debates and discussions should be done rather than solely focusing on quick passing of bills. 
  • The Parliament was not convened for a long time during the pandemic and later got convened after suspending the question hour so that swift passage can happen. This approach needs to change.

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Centre seeks to replace EIA rules, activists rise in protest

Source: The Hindu

Gs2: Parliament and State Legislatures—Structure, Functioning, Conduct of Business, Powers & Privileges and Issues Arising out of these.

Synopsis: Following the Democratic Parliamentary Process is more important than enforcing the will of the majority.

Background

• Nearly 20 Opposition parties boycotted the recent (2021) President’s address to a joint sitting of Parliament.
• Further, the Opposition is planning to move a joint motion demanding a repeal of the three Farm laws in the coming Budget session of Parliament.
• The boycott is indicative of the worsening relationship between the government and the Opposition.
• The last time the Opposition boycotted the President’s Address was in November 2019 during the celebration of the Constitution Day.
• Regarding the Farm Bill, the President said that the government will keep the farm Bills on hold as per a Supreme Court directive. But the speech had no indication of reconsideration of the laws.

What is the way forward?

• Government should follow the democratic route of getting Parliamentary approval for Ordinances. Because democratic processes are more important than enforcing the will of the majority.
• The ordinances promulgated during the pandemic time should be put in front of Parliament for detailed discussion.
• Though, the government has advantages over the Opposition, in terms of the numerical strength in both Houses of Parliament. But a democracy cannot be run alone by the executive, without any accountability. Parliament and opposition function as a check on the powers of the executive.

The government needs to hold the high standards that India has set for itself as a democracy. Hence, Discussion, Debate, Deliberation should be the way forward.

Source: Indian Express

Gs2: Parliament and State Legislatures—Structure, Functioning, Conduct of Business, Powers & Privileges and Issues Arising out of these.

Synopsis: The History, Procedure & tradition and format of President’s address in Parliament.

Background:

• The first Parliament session for 2021 is set to begin. It is the constitutional mandate for the President (Ram Nath Kovind) to address the 1st session of the members of both Houses of Parliament, every year.
• It is the only occasion in the year when the entire Parliament, i.e., the President, Lok Sabha, and Rajya Sabha come together, in a normal situation.
• This process of President’s address every year during its 1^st session has its own history, tradition, and procedures.

History: Before Independence

• In India, the practice of the President addressing Parliament can be traced back to the Government of India Act of 1919. This law gave the Governor-General the right to address the Legislative Assembly and the Council of State.
• But the Government of India Act of 1919 did not have any provision for a joint address.

History: After independence

• After the Constitution came into force, it empowered the President to address either House or a joint sitting of the two Houses of Parliament.
• For the first time on January 31, 1950, President Rajendra Prasad addressed members of Lok Sabha and Rajya Sabha.
• According to article 87 of the constitution, the President needs to address a joint sitting on two special occasions
  • • The first is to address the opening session of a new legislature after each general election.
    • The second is to address the first sitting of Parliament each year.
• It has to be noted that, Article 87(1) originally required the President to address both Houses of Parliament at the commencement of every session.
• However, The First Amendment to the Constitution in 1951 changed this position and made the President’s address once a year.

Format for the President’s speech

• Currently, The address of the President follows a general structure. It highlights the government’s accomplishments from the previous year and sets the broad governance agenda for the coming year.
• The government also uses the President’s address to make policy and legislative announcements. For example,
  • • In 1996, PM Atal Bihari Vajpayee’s (13-day) government used the president’s address to announce its intention of giving statehood to Uttaranchal and Vananchal (Jharkhand) and 33 percent reservation to women in legislatures.
    • In 2004, After the devastating tsunami of, Prime Minister Manmohan Singh’s government used the President’s Address to announce the creation of a national law for disaster management.
    • And in 2015, the Narendra Modi governments used the president’s address to announce its plan to fast pace financial sector reforms.

Motion of Thanks: Procedure & tradition

• Following the President’s address, a motion of thanks is moved in the two Houses by the ruling MP’s. The deliberations on this motion last for three to four days.
• During this period, MPs of both the Houses will have a broad debate on governance in the country.
• Following the debate, The Prime Minister will reply to the motion of thanks in both Houses and responds to the issues raised by MPs.
• Then the motion is put to vote and MPs can express their disagreement by moving amendments to the motion.
• Such amendments may be used for including some issues or highlighting some issues which did not find mention in the speech.
  • Opposition MPs have been successful in getting amendments passed to the motion of thanks in Rajya Sabha on five occasions (1980, 1989, 2001, 2015, 2016). But it has been less successful in Lok Sabha.
• Also, it has to be noted that the motion of Thanks must be passed in both of the houses.
• A failure to get a motion of thanks passed (which may rarely happen) amounts to the defeat of the government.
• Hence, Motion of thanks is sometimes deemed as no-confidence motion.

Why in News?

Over the years, Parliament has repealed several laws. But there have also been examples when the government has not brought an already passed law into force.

Few such Examples

• Two such examples are the National Environment Tribunal Act and the Delhi Rent Control Act which Parliament passed in 1995 but had never brought these laws into force.
• Further, there are also multiple instances where a law specifies when it will come into effect. The 2013 land acquisition law put an outer limit of three months for the Centre to bring it into force after the President approved it.

Facts:

Bringing/removing a law: Parliament has the power to make a law and to remove it from the statute books (Judiciary can also strike down a law if it is unconstitutional). But the passing of a Bill does not mean that it be implemented from the next day. There are more steps, for it to become a functioning law:

First Step, President’s Assent:

• Article 111 of the Constitution specifies that the President can either sign off on the Bill or withhold his assent. However, the Constitution does not specify a time limit for the President to approve a Bill.
• The President rarely withholds assent to a Bill. The last time it happened was in 2006 when President A P J Abdul Kalam refused to sign a Bill protecting MPs from disqualification for holding an office of profit.
• A Bill is sent to Parliament for reconsideration if the President withholds his or her assent on it. And if Parliament sends it back to the President, he has no choice but to approve it.

Second Step, giving effect to a Law:

• It is deciding the date on which the law comes into effect. In the majority of cases, Parliament delegates the power to determine this date, to the government.

Third Step, Farming Rules & regulations

• A passed Bill is just an outline of a law. For the law to start working on the ground, a ministry or department needs to be empowered to administer it.
• The implementing ministry also needs to finalize forms to gather information and provide benefits or services. These day-to-day operational details are called rules and regulations.
• Government is responsible for framing rules and regulations. If the government does not frame them, the law or any parts of it, will not get implemented. The Benami Transactions Act of 1988 is an example of a complete law remaining unimplemented in the absence of regulations.

Source: Indian Express

Synopsis: Conflicts like the one in Kerala over the power to summon the state legislature, will only add up to the already dismal performance of sessions of state legislatures.   

Issue of summoning the sessions in state legislature: 

The events in Kerala and Rajasthan are an abnormality.  

• Kerala Event: Lately, Kerala government recommended governor for summoning the state’s legislature for a one-day session to discuss the issue of farmers’ protest, but recommendation was turned down by governor on the ground that there is no emergent situation to meet the assembly on such short notice. 
• Event in Rajasthan: The Rajasthan governor had rejected the recommendation of Chief Minister Ashok Gehlot’s government to call a session for proving the majority of his government.  
• Constitutional Provision: The state government is constitutionally empowered to call a session of the legislature. 
  • The dates and the duration of the session is decided by the council of ministers.  
  • Governor is communicated of their decision, who is constitutionally bound to act on most matters on the aid and advice of the government. 
  • The state legislature is then summoned by governor to meet for a session.  

Such conflicts between the governor and the government are hurdles in the functioning of state legislators, which are already suffering from dismal performances. 

Performance of state legislatures 

The data as follows depicts the dismal performance of the state legislature in their functioning; 

• Number of assembly meetings: In the last 20 years, state assemblies across the country, on average, met for less than 30 days in a year. But states like Kerala, Odisha, Karnataka are an exception.  

• • The Kerala Vidhan Sabha, for example, has on average met for 50 days every year for the last 10 years. 

• Performance of state legislatures: Legislatures meet for longer budget sessions at the beginning of the year. Then for the rest of the year fewer meetings are held just to meet the constitutional requirement that there should not be a gap of six months between two sessions of a legislature. 

What are the reasons for decline in the sitting days of the state legislature? 

The blame for the decline in the sitting days of the state legislatures rests with the government. 

• Interest of government: Legislatures are grounds for debate and giving voice to public opinion. As accountability institutions, they are responsible for asking tough questions to the government and highlighting uncomfortable truths.  

• • So, it is in the interest of a state government to organize lesser sittings of the legislature and bypass their inquiry. 

• Not enough time: Lesser number of sitting days also means that state governments are free to make laws through ordinances and when they assemble legislatures, there is little time for MLAs to inspect laws brought before them. 

What can be done? 

Continuous and close scrutiny by legislatures is essential for improving governance in the country. 

• Increasing the number of working days for state legislatures is a first step in increasing their effectiveness. One way to do that is by assembling legislatures to meet all around the year.  
• In many mature democracies, a fixed calendar of sittings of legislatures, with breaks in between, is announced at the beginning of the year. It allows the government to plan its calendar for bringing in new laws.  
• It also has the advantage of increasing the time for debate and discussion in the legislative assembly. And with the legislature sitting throughout the year, it gets rid of the politics surrounding the convening of sessions of a legislature. 

Source: Click here

News: Government has decided to cancel the Winter session of Parliament, citing fears over a surge in cases due to covid-19 pandemic.

Facts:

• Constitution on Summoning of Parliament: The summoning of Parliament is specified in Article 85 of the Constitution.Like many other articles, it is based on the provision of Government of India Act,1935.
• Power to convene Session: The power to convene a session of Parliament rests with the Government.The decision is taken by the Cabinet Committee on Parliamentary Affairs which is formalised by the President, in whose name MPs are summoned to meet for a session.
• Parliamentary Calendar: India does not have a fixed parliamentary calendar.By convention (i.e. not provided by the Constitution), Parliament meets for three sessions in a year.
  • The longest, Budget Session(1st session) starts towards the end of January and concludes by the end of April or first week of May. The session has a recess so that Parliamentary Committees can discuss the budgetary proposals.
  • The second session is the three-week Monsoon Session, which usually begins in July and finishes in August.
  • Winter Session(3rd session) is held from November to December.

Additional Facts:

Terms associated with Sessions of Parliament:

• Adjournment: Termination of the sitting of the House which meets again at the time appointed for the next sitting.
• Adjournment sine die – Termination of a sitting of the House without any definite date being fixed for the next sitting.
• Prorogation: It means the termination of a Session of the House by an order made by the President under article 85(2)(a) of the Constitution.  The Prorogation of the House may take place any time even while the House is sitting.However, prorogation usually follows the adjournment of the sitting of the House sine die.
• Dissolution: It means the end of the life of the Lok Sabha either by an order made by the President under article 85 (2) (b) of the Constitution or on the expiration of the period of five years from the date appointed for its first meeting.Dissolution puts an end to the representative character of the individuals who at the time compose the Lok Sabha.

Departmentally Related Standing Committees (DRSCs)

News: In the current Lok Sabha, 17 Bills were referred to committees.

Parliamentary Committees are established to study and deal with various matters that cannot be directly handled by the legislature due to their volume.

• Constitutional Provision: Indian Constitution mentions two kinds of parliamentary committees under Article 118 (1) of the constitution-
  • Standing Committees
  • Ad Hoc Committees

• Departmentally Related Standing Committees:
  • These are committees that examine bills, budgets and policies of ministries. DRSCs were first formed in 1993.
  • There are 24 such committees and between them, they focus on the working of different ministries.
  • Each committee has 31 MPs, 21 from Lok Sabha and 10 from Rajya Sabha.
  • They have a tenure of one year, then they are reconstituted and their work continues throughout the term of a Lok Sabha.
  • These members are to be nominated by the Speaker of Lok Sabha or the Chairman of Rajya Sabha respectively.
  • Ministers are not members; key committees like those related to Finance, Defence, Home etc are usually chaired by Opposition MPs.
  • Functions: DRSCs perform three important functions: examine Bills referred to them; select specific topics related to the ministries and examine implementation by the Government; and examine the budgetary outlays of the departments.
• Joint Parliamentary Committees (JPC): They are constituted for a specific purpose, with MPs from both Houses.
• Select Committee: They are formed for examining a particular Bill and its membership is limited to MPs from one House. Example: In 2019, Rajya Sabha referred the Surrogacy (Regulation) Bill, 2019 to a Select Committee of 23 of its MPs from different parties.

Functions of Departmentally Related Standing Committees (DRSCs)

1. DRSCs help Parliament in managing its business better. A committee of 30 is in a better position to examine a topic in-depth than by an assembly of 700.
2. They enable input from experts and those who may be directly affected by a policy or legislation. For example, the DRSCs often invite comments from the public and call people to testify.
3. Members can discuss issues and reach consensus in the committees without worrying about constituency pressures as it is outside direct public glare.
4. Anti-defection law does not apply to committees — therefore, decisions can be made out of the party lines.
5. Finally, due to specified areas members are able to build their expertise in that, which helps them scrutinise issues more thoroughly.

• When does a committee examine a Bill? A bill can reach a committee for examination in three ways:
  • When the minister piloting the Bill recommends to the House that his Bill be examined by a Select Committee of the House or a joint committee of both Houses.
  • If the minister makes no such motion, it is up to the presiding officer of the House to decide whether to send a Bill to a departmentally related Standing Committee.
  • A Bill passed by one House can be sent by the other House to its Select Committee.
• Result of sending a bill to a Committee:
  • The committee undertakes a detailed examination of the Bill. It invites comments and suggestions from experts, stakeholders and citizens. It then provides a report recommending measures to strengthen the bill.
  • The report of the committee is of a recommendatory nature.

Performance of the Parliament

In news: The decision to drop “Question Hour” during the Monsoon Session of Parliament, evoked serious concerns about the democratic functioning of the institution.

Brief Overview of the Indian Parliament:

The Parliament is the legislative organ of the Union government. The Indian Parliament comprises of the President and the two Houses – Rajya Sabha (Council of States) and Lok Sabha (House of the People). The President of India is the constitutional head of the executive. The Constitution describes the structure of parliament in Article 79.

Important Constitutional Provisions:

• Article 79: Constitution of Parliament.
• Article 80: Composition of The Council of States
• Article 81: Composition of The House of The People

Performance of the Parliament:

Lok Sabha:

• Parliament Sittings: Over the years, there has been a decline in the number of sittings of the Parliament. The Lok Sabha met for an average of 130 days in a year during the 1950s. However, these sittings reduced to 70 days in the 2000s.
• Question Hour: It allows Members of Parliament (MPs)to pose questions to ministers relating to government policies, and hold the government accountable for its actions. Between 2009 and 2014, Question Hour functioned for an average of 42% of its scheduled time. Between 2015 and 2019, the Lok Sabha could use just 61% of its total allotted time for Question Hour.
• Less time spent on discussing budgets and bills: the time spent on discussing the Budget has reduced from an average of 123 hours in the 1950s to 39 hours in last 10 years.
  • Debates and Motions: MPs raise issues of public importance in Parliament, and examine the government’s response to problems being faced by citizens through two methods:
  • Debate: The number of debates has decreased over the years. (Check infographic)
• Motion: There is a declining trend of these motion being effectively used by the opposition. (See infographic)
• Disruptions: Between 2012-2016, disruptions resulted in loss of 30% of the time in the Lok Sabha and 35% of the time in the Rajya Sabha. In last budget session, the number of productive hours was 53 hourse.

Rajya Sabha:

• Sittings: From 2014 to 2019, it held 18 sessions and 329 sittings and passed 154 Bills — which comes to less than one Bill in two sitting
• Legislative Output: In 2009-2014, it cleared 188 Bills and in 2004-09 it cleared 251 Bills.
• Question hour: The Rajya Sabha in 2015-19, used only about 40% of the total time available for question hour.

Performance of Parliamentary Committees

• Decrease in Sittings: Over the year, sittings of most of the Departmentally Related Standing Committees (DRSC) have decreased.
• Attendance of Members: Success of the Committee system depends on the participation of Members. Between 2009 and 2014, in the 16 DRSCs serviced by the Lok Sabha, on average, only 49% members were present for meetings.
• Referring of Bills: During the period of 16th Lok Sabha only 27% Bills were referred to Committees. This number is significantly lower than previous two Lok Sabhas.
• Other issues impacting the performance:
  • Politicisation: Over the last few years, committee members have been following strict party lines in committee meetings.
  • Lack of inclusion of experts: Committees examine issues that are technical in nature. However, at present committees lack expertise and research support.
  • Tenure for members: At present, the members are nominated to a Standing Committee for one year. This hinders development of technical expertise on a particular subject and better deliberation.

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

What is the News?

The Economist Intelligence Unit(EIU) has released the Democracy Index, 2020. In that, India dropped two places and currently at 53rd position.

Facts:

Democracy Index 2020:

• It was started in 2006 by the Economist Intelligence Unit. The index provides a clear image of the status of democracy worldwide in 167 countries.
• Categories: The index is based on five categories :
  • Civil liberties,
  • Electoral process and pluralism;
  • Functioning of government;
  • Political participation;
  • Political culture.
• Classification: Each country will be provided with a score of 0 to 10. These scores are decided based on the 60 indicators within the five categories. Based on their scores, each country is then classified into any one of the four types of regime. Such as,
  • full democracy,
  • flawed democracy,
  • hybrid regime,
  • authoritarian regime.

Findings Related to India:

• India has dropped two places and India’s score was 6.61. Currently, India was in 53rd position in 2020. This is due to,
  • A lapse in democratic processes among authorities.
  • Suppressive actions by the government on civil liberties.
• India has been classified as a ‘flawed democracy’ along with countries such as the US, France, Belgium and Brazil.
• However, India’s rank was higher than most of its neighbouring countries, such as Sri Lanka (68), Bangladesh (76), Bhutan (84) and Pakistan (105).

What is “Flawed Democracy” country?

These are the countries which hold free and fair elections and respect the basic civil liberties. But they have notable weaknesses with regards to democracy. Such as an underdeveloped political culture, problems in governance and low levels of political participation.

Other Findings:

• Topped by: Norway has topped the index followed by Iceland, Sweden, New Zealand and Canada.

Source: The Hindu

Synopsis: The violence that has happened in the US and India has some similarities. It highlights the erosion of democratic values in the world’s oldest (US) and largest democracies.

Background

• Recently, In the US, a violent mob attacked the U.S. Capitol building. This mob vandalized public property and threatened lawmakers in Congress.
• Similarly, India witnessed violence on Republic Day. A rally planned to protest against three farm laws, broke off from the planned parade. Protesters entered the premises of the Red Fort by breaking the gates. It later led to a Police crackdown.
• These two episodes witnessed in the world’s oldest (US) and largest democracies (India) have a few similarities and differences.

What are the similarities between the two mass rallies?

First, in both countries, the aggrieved parties challenged the political developments.

In America,

• Following the victory of Joe Biden in the 2020 presidential election, Mr. Trump raised questions on the electoral process. It was despite having no proof for that.
• He even spread misinformation on social media. This led to the incitement of violence in the US.

In India,

• The anger was against the three laws passed by the Parliament to reform the mandi system. It was felt that the farm laws can endanger the minimum support price system that has been the economic backbone of small-scale farmers.
• The farmers protested peacefully for months baring the cold winter. Yet, the lack of political will to negotiate with the protesting farmers triggered the violence on Republic day.

Second, social media played an important role to show the darker side of mass rallies, in both examples.

In America,

• Social media telecasted an invading mob holding zip ties (zip ties imply a threat to the lives of lawmakers in the building).
• A truck filled with guns and bombs near the site of the attack that was discovered by law enforcement agencies was also telecasted.

In India,

• Social media was flooded with images of the religious flag of the Sikhs (Nishan Sahib) being hoisted at the Red Fort. This gave an impression that the protest was politically motivated.

What are the differences?

US mass rally was in support of Trump’s call for nativist populism and racist ethos i.e. in support of white supremacy. It created a sharp division among the US population and will have long-term impacts.

Whereas the farmer’s protest in India is against the law enacted by a powerful government. They are resisting the neoliberal economic policy of the government.

Issues with democratic models of Polity

• The above incidents clearly give a picture that Democracy is a contested topic in the world. It favours a religious or social majority through democratic processes like elections.
• Moreover, democracies are inherently capable of turning into a power structure that overtakes democratic processes. It is evident in the rise of fascism in the pre-World War Europe.
• The ongoing events in the US and India clearly explain that Democracy has been wrongly understood as the rule of the majority leading to the undermining of Democracy.

Ethics and related updates

Synopsis:  The Supreme court (SC) has stayed the implementation of farm laws. The decision is a case of violation of the separation of powers.  

Background  

• Recently, the SC has stayed the implementation of three farm laws until further orders. 
• The SC has also given direction to set up a four-member committee to break the deadlock between farmers and the Centre. 
• Many experts opine that by this judgment the supreme court has encroached into political and administrative management without any legal basis and seen as a violation of the separation of powers. 

Are the reforms necessary? If yes, why it has been opposed? 

According to many agricultural experts, agriculture needs serious reform for achieving the following objectives. 

• To improve farmers’ incomes and well-being. 
• To increase crop diversification. 
• To make agriculture more environmentally sustainable. 

• To make subsidies less counterproductive.  
• To keep food inflation down, and ensure that nutrition reaches all. 

The government was right to think reforms were necessary. However, the government failed to gain trust among Farmer communities by prioritising the wrong reforms.  For example, “choice of traders,” which did not tackle the underlying issues, but created more uncertainty. 

What are the negative implications of the recent Supreme Court decision? 

The Supreme court (SC) decision has been criticised on the following grounds; 

• First, SC’s involvement in the Farm bill issue will give a misleading impression that a distributive conflict can be resolved by technical or judicial means.  
• Second, by setting up a four-member committee to hear farmers’ grievances the SC has invaded into political territory. The role of the judiciary is to determine unconstitutionality or illegality of law rather than mediating a political dispute.  
• Third, the court has lost its neutrality by seeking to break the momentum of a social movement.  

• • • Rather than facilitating the orderly and law-bound expression of protest the court has acted to defuse the genuine democratic protest by shifting the onus on the farmers to stop their protests. 

• Fourth, the court’s action will disrupt the normal political give and take in a democracy between the government and people. 

• Fifth, the court has redefined the function of mediation the court by violating the first rule of mediation. i.e., The mediators must be acceptable to all parties and appointed in consultation with them. Whereas the SC has Suo Moto appointed a four-member committee without any consultation with farmer groups. 
• Finally, the court has also positioned itself as an arbiter of national security. It admitted the Attorney General’s contention that farmers’ protests may be the vehicle for the Khalistan movement. 

What is the way forward? 

• In principle, any mediation to break the stalemate is welcome. But the mediation has to be a political process between the government and the people and it is the responsibility of the Parliament to fix the issue. 
• What the farmers need is clarity of law and the right to make their demands heard through the political process and civil society not the paternalism of the court 

The court, in the process of saving the government from being on the political back foot the court, has forfeited the very thing it needs most, the repository of trust among its citizens.

This article has been developed based on the Indian Express Article ‘Once upon a failed coup’.

Synopsis: Recent coup attempt in the US Capitol Building has been caused by several factors.

Why Capitol building coup failed in the US?

January 6 coup attempt by rioters in US Capitol hill refutes the traditional wisdom that coups take place in developing countries.

It was not a usual Military led coup, but a coup led by executive i.e. an executive coup led by President Donald Trump himself. It was aimed at forcing two Houses of Congress to overturn the presidential election results, lost by Trump.

Election system of US

• Election administration process of the US is very complicated. Unlike India, the US doesn’t have an independent election commission.
• States form an electoral college to certify the final outcome of the election process after people have cast their votes.
• At the final stage, the outcome certified by the states is finally accepted by US legislators. This was the stage ongoing on January 6.
• The vice-president presides over the process in US legislators. Mike pence (vice-president) refused to overturn the election on demand of Trump.
• At the completion of the process, the victory of Biden was ratified and he is set to take oath on Jan. 20^th.

What were the possible reasons behind coup attempt in the US?

2 main hypothesis are formulized to understand possible reasons for Trump behind this coup attempt:

1. First is the ideological reason, his commitment to restoring white supremacy was visible in his policies. Many rioters in the mob were carrying Confederate flags, which represent pre-civil war southern states, which stood to preserve slavery.
2. Second is a personal reason, Trump fears persecution for tax frauds, corruption, abuse of power and the latest one is for Abetting an insurrection.

Why scholars believe, coup happens in poor countries?

Scholar believes that coups happen only in poor countries due to the following reasons.

Poor democracies

1. In poor countries, oversight institutions like election commission or other bodies taking care of democratic processes are weaker and not able to go against the mighty politicians.
2. Government here are mighty and has much to lose. Their control on economy and society makes them subject to imprisonment and coercion, once out of power.

Developed democracies

3. In richer democracies, firstly government doesn’t control all sectors of society, thus not subject to imprisonment later.
4. Moreover, politicians have many opportunities after politics, thus they are not concerned about their well-being after government.

Coup in presidential vs parliamentary democracies

Coup in parliamentary democracies is less likely compared to Presidential.

• In Presidential democracies, the executive and the legislature are independently elected. If they are from different parties, clashes are possible between them.
• Whereas in parliamentary democracies both executive and the legislature are interlinked. Prime Minister is selected based on the majority in Parliament. Thus clashes between the executive and parliament are less likely.

What are the reasons behind the failure of coup attempt in US?

1. Firstly, military support was absent, thus mob failed to occupy the Capitol building. In richer democracies, armies rarely help leaders in electoral disputes.
2. Secondly, Even the Republican governments officials did not bow to the coup attempt of Trump.
   1. • In a leaked tape of Trump’s phone call to Georgia’s Secretary, he asked Secretary to “find 11,780 votes”. But he did not agreed to follow and declined to act on this.
3. Third, American Courts played a constructive role in ensuring the fair play in the election process.  Trump’s campaign filed more than 60 legal challenges from state courts to the Supreme Court but failed to secure any big gain.
   1. • During his term, Trump appointed many judges and expected them to secure decisions in his favor but they followed the law and made their decisions on this basis only.

A coup attempt in the history of US proves that no country in the world is safe from these types of challenges. It is only through the integrity of the established institutions in the country that this attempt could not succeed to turn around the democratic process of the country.

Thus, the transparency and integrity of institutions should not be undermined and kept at the highest level.

Context – With various issues arising, there is an opinion that democracy takes a hit and policymakers must take note of the drift. 

What are the areas of concern for India? 

1. Recession – The Indian economy is in recession and is among the worst-performing among major nations
2. Cybersecurity attack– India ranked second only to the US among the countries most impacted by the ransomware

• Ransomware is a form of malware that encrypts a victim’s files. The attacker then demands a ransom from the victim to restore access to the data upon payment.

3. Concerns with India’ foreign relation–

• India-China dispute– China unwillingness to reach a reasonable settlement along the Line of Actual Control.
• India-Pakistan relations– China and Pakistan have signed a new military memorandum of understanding to boost their already close defence relationship.

4. West Asia– India has to balance its ties with all regional power in west Asia

• India’s close relationship with Israel is another sore point with west Asia.

What are the Internal actions seem like threatening democracy in India? 

1. Revoking of Article 370- The government abolished the article that gives special status to Jammu and Kashmir and bifurcates the state into two separate union territories of Jammu and Kashmir and Ladakh.
2. The anti-Citizenship (Amendment) Act- The CAA is disturbing because it makes problematic distinctions between different groups of people based on religion and is pursuing a divide and rule policy
3. Electoral wins at any cost- Winning at any cost has become the sole motif of certain parties.

• The election is turning into conflict zones, they have become tinderboxes for communal, caste, political and other forms of violence.
• Majority versus the minority has become the stock-in-trade of some parties.

4. Constitutional protections and principles of natural justice as also freedom of the individual are at risk

• Love jihad– UP Cabinet cleared a draft ordinance against forceful inter-faith conversions — or the so-called “love jihad”.

5. Restrictions on Social media freedom- India is beginning to clamp down on social media platforms and enacts draconian laws.
6. Farmer’s protest- Latest example of imposing a measure without due discussion and acceptance of farmer and opposition.

Way forward-

• Policymaker needs to acknowledge public fears and reassure people, especially in periods of uncertainty.

Democracy works on the principle of checks and balances. It is these checks and balances that prevent democracy from turning into majoritarianism.

What does the word Preamble mean?

preamble of India is an introductory statement to any formal document in general, Statute and Constitution in particular. It contains the Philosophy and objectives of a document.

Which is the first country to have Preamble in Constitution?

When the USA got independence in 1775, The USA becomes the first country to have the written Constitution in the world. Apart from that the USA is also the first country to have Preamble in Constitution, Fundamental Rights in Constitution etc.

When the United Nations was formed in 1945, it took reference to the USA’s Preamble and released an UN Charter with reference to UN’s objectives.

Precursor to Indian Preamble:

Ever since the objective of freedom fighters to frame a Constitution for our free India, the idea of Introduction of Preamble into our Constitution gets stronger and stronger.

With this in the background an “Objective Resolution” was drafted by Jawaharlal Nehru in 1946 and unanimously adopted by the Constituent Assembly on 22 January 1947.

Preamble of Indian Constitution:

Indian Preamble is based on this Objective Resolution. By reading our Preamble we can understand the intention of our forefathers, the history behind its creation, and the core values and Principles of the nation.

Fun Fact: Even though Preamble is placed before all the Articles, It was drafted last, to ensure that it was in conformity with the Constitution.

What are the ingredients of Indian Preamble?

• The preamble basically gives the idea of the following things:
  • Source of the Constitution (From the people of India)
  • Nature of Indian State: Sovereign, Socialist, Secular, Democratic, Republic
  • Objectives of Constitution: Justice, Liberty, Equality and Fraternity
  • Date of its adoption: 26 Nov 1949

Fun Fact: From 2015, the date of adoption (26 Nov) of our Constitution is celebrated as Constitution Day of India.

Is our Preamble be a part of Constitution?

This is an interesting question for a debate itself.

• In Berubari Union Case of 1960 Supreme Court held “Though Preamble is the key to open the mind of the makers, Preamble is not a part of Constitution” and stated reasons such as,
  • Removing Preamble from Constitution does not affect the Values of Constitution
  • Preamble does not offer any Rights or Obligation on any organs of State
  • Preamble’s nature of non-justiciable (cannot enforceable in court of law) character
• The same question came up in the famous Kesavananda Bharati Case of 1973. But this time Supreme Court reversed its stance and held “Preamble is an integral part of Constitution” and stated reasons such as
  • Preamble plays an important role in the interpretation of statutes and provisions of the Constitution
• In Union of India vs LIC of India case 1995, Supreme court once again held “Preamble is an integral part of Constitution”

The amendments to Preamble:

• Since Preamble became part of Constitution, the Government of the day got the power to amend the Preamble.
• Preamble is amended only once so far. It was amended in 1976 by 42^nd Constitutional Amendment Act.
  • The amendment added the terms ‘Socialist’, ‘Secular’, and ‘Integrity’ in to the Preamble (though these were implicit in the Constitution the amendment made them explicit).

Ideals in the Preamble:

• Sovereign: The term means that India as an own independent State. Neither dependent on any external State nor a dominion of external State.
• Socialist: It means that the State aims to achieve socialist ends by democratic means. (i.e., both private and public sectors co-exist).
  • Supreme Court in Nakara Case 1982, stated “Indian socialism is a blend of Marxism and Gandhism, leaning heavily towards Gandhism”. This clearly defines the term Socialist in Preamble is by democratic mean.
• Secular: This term means that State gives Equal treatment to all the religions (Sarva Darma Sama Bhava) and India as a State have No religion.
  (For Ex, Pakistan declared themselves as Islamic State and Bhutan declared themselves as Tibetan Buddhist State)

• Democratic: The term simply means People ruling themselves through representatives.
• Republic: The term indicates that the political sovereignty is vested in people which means, head of the state (President) is elected by the people.
  • The term also indicates that the absence of any privileged class (All public offices opens to all).

Aspirations of Preamble:

Constitution always aim towards minimum interference by State, to ensure and maintain harmony throughout the nation. Preamble contains certain aspiration to achieve the same. They are:

• Justice: The word Just means The term Justice in Preamble is ensured to people through the provisions of Fundamental Rights and Directive Principles of State Policy.
  • The ideals of Justice comprise of social, economic, and political justice. The concept has been taken from the Russian Revolution (1917).
  • Social Justice – It aims to create a society without discrimination on any grounds like caste, colour, race, sex, religion, etc.
  • Economic Justice – It simply means non-discrimination between people on the basis of economic factors like their income, wealth, economic status etc.

Fun Fact: A combination of Social and Economic justice denotes Distributive Justice.

• Political Justice – It implies that all the people have an equal political right in various domains such as access to political offices, voice in government, etc.

• Equality: It implies absence of any special privileges to any section of society and all the people will have equal opportunities without any discriminations.
  • Like Justice, Equality also comprises of Civic, Political and Economic equality.
• Liberty: ‘Liberty’ in simple term means Freedom for people to choose their way of life, political views, profession, behaviour in society, etc. Liberty does not mean absolute freedom to do anything, there are few checks and balances set by the law, which every citizen has to follow.
• Fraternity: The term implies a sense of brotherhood and an emotional attachment with the country and the people.

• Liberty, Equality and Fraternity are called as Unity of trinity. It is so called because all three will act harmoniously to bring out the best and one cannot act without another.

Preamble as a whole:

By reading Preamble one will get the comprehensive understanding about the Nature of Indian society, our ideals and aspirations as a nation and also as an individual.

That is why N.A.Palkhiwala, a notable Jurist and Constitutionalist have described “Preamble as the identity card of the Constitution”. Not only him various other political thinkers, Constitutionalists and Jurists have also praised Preamble similarly.

Context- The elected must protect all the unelected instruments of democracy- – judiciary, media and civic organizations.

What is check and balance in the democracy?

Checks and balances, principle of government under which separate branches are empowered to prevent actions by other branches and are induced to share power.

• Democracies have developed systems of efficient checks and balances — elected and unelected institutions. Such a balance is critical to their success.
• Democracies can be harmed if the rulers succeed in jeopardizing the other pillars like the judiciary and free press.

What were Aristotle [ancient Greek philosopher] views on different models of government?

According to Aristotle-

• Monarchies were for the benefit of the monarchs.
• Oligarchies for the benefit of men with means.
• And democracies were for the benefit of men without means.

What were Mahatma Gandhi and Ambedkar views on democracy?

1. Gandhi’s View

• He was a firm believer of Ahimsa based stateless ruled based on self-regulation by individual. He considered democracy as a means to achieve his “Ram Rajya”. While this would make the country an ideal state, the notion was utopian.
• He believed in decentralization of power and self sufficiency of villages which shall be brought in by democracy.
• And laid stress on the individualism provided by democracy. Individualism was important encouraging the individual to surrender to society to achieve his selfless society.

2. Amdedkar’s views–

• He belonged to a backward caste and from his early childhood faced various forms of discrimination in the society.
• For him democracy was not limited to only political spheres but extended to social, religious, economic spheres of life as well, that no person should be arbitrarily discriminated against and for this he fought for his entire life.

For Gandhi, democracy meant the weak getting the same chance as the strong and for Ambedkarji, it was about giving voice to voiceless.

3. For successful democracy – Both believed that the parliamentary majorities need to be restrained through constitutional ethics and public morality.

• Constitutional ethics is about leaders respecting constitutional order, conventions and institutions.
• Gandhi’s final message to the congress to convert itself into a lok Sevak Sangh and work at the grassroots for social, economic and moral independence.

Conclusion-

• India’s democracy, as envisaged by the makers of the constitution, thrived essentially because of the respect of the leaders for the ethical constitutionalism and moral activism of the grassroots activists.
• Indian democracy has been immensely benefitted from such diverging viewpoints. The core values which our freedom fighters stood for are still the basic structure on which our constitution proudly stands.

Context: Problems faced by the leading democracies in the world.

What are the issues that are threatening the Democracies?

• Identity crisis: The issues of identity, or threats to identity, are becoming an important issue in elections, across democracies.
• Menace of Fake news: Manipulation of grievances by using psychometric techniques and use of ‘deep fakes’ made possible through Artificial Intelligence, further enhances the threat to current notions of democracy.
• Terrorism is resurfacing with renewed vigour: The IS, that was thought to be defeated following the victories achieved in Syria and Iraq towards the end of 2018, has recently carried out attacks in France (Paris, Nice) and in Austria (Vienna).It reminds of the transnational character of the threat it poses to democratic countries.
• Informational autocracy: There is a growing concern across the globe about increasing efforts to manipulate information in order to perpetuate power. For example, the efforts made by the U.S. President, Donald Trump, to negate the verdict of the recently held presidential elections

What are the Problems specific to European democracy?

• Economic uncertainty: With a resurgent COVID-19 pandemic, an uncertain Brexit will further damage the prospects of both the United Kingdom and Europe.
• Threat to secularism:
• The recent wave of terrorist attacks, beginning with the beheading, recently, of a Paris schoolteacher by an Islamic State (IS) supporter, followed by IS violence in Nice, have raised questions on long-held secular beliefs.
• French President Emmanuel Macron and French leaders have been openly harsh against radical Islam

What are the Problems specific to   Indian democracy?

• Polarisation: The enactment of Citizenship (Amendment) Act and the National Register of Citizens have created a deep religious divide among its citizens.
• Challenges to Internal security: With growing tensions in Jammu and Kashmir (J&K), Pakistan’s efforts to push terrorists in larger numbers is leading to large scale casualties especially among the Indian Army and security forces personnel.
• Failure of India’s bargaining strategy: India has been left out of the Regional Comprehensive Economic Partnership (RCEP), world’s biggest trade bloc which covers almost a third of the world’s economy.
• International isolation: Provocation by Pakistan by holding of Assembly elections in Gilgit-Baltistan and India’s steady marginalization in Afghanistan where the control of the Taliban is increasing confirms India’s isolation in international arena.

In news: The passing away of Kesavananda Bharati, led to a debate on the famous doctrine of basic structure propounded by the Supreme Court.

What is the Basic Structure Doctrine?

• The “Basic Structure” doctrine is a doctrine made from judicial innovation specific to Indian context. The doctrine prescribes that certain features of the constitution are essential for the functioning of the state. Such features are beyond the limits of the amending powers of the Parliament.
• The word “Basic Structure” is not mentioned in the Constitution of India. The concept developed gradually with the tussle between the Parliamentary power to amend the constitution and judiciary’s power to review such amendments.

The concept was recognised for the first time in the Kesavananda Bharati case in 1973.

Evolution of the Basic Structure Doctrine

• 1951: The First Constitution Amendment Act, 1951: It was challenged in the Shankari Prasad vs. Union of India case. The Supreme Court held that the Parliament, under Article 368, has the power to amend any part of the constitution including fundamental rights.
• 1964: Sajjan Singh v. State of Rajasthan: The Constitution has “basic features” was first theorized in 1964, by Justice J.R. Mudholkar in the case of Sajjan Singh v. State of Rajasthan. He questioned whether the ambit of Article 368 included the power to alter a basic feature or rewrite a part of the Constitution.
• 1967: Golak Nath vs State of Punjab case: The Supreme Court overruled its earlier decision. The Supreme Court held that the Parliament has no power to amend Part III of the constitution as the fundamental rights are transcendental and immutable.
• 1971: The Parliament passed the 24th Constitution Amendment Act. The act gave the absolute power to the parliament to make any changes in the constitution including the fundamental rights.
• 1971: The 25th Amendment to the Indian Constitution curtailed the right to property, and permitted the acquisition of private property by the government for public use, on the payment of compensation which would be determined by the Parliament and not the courts
• 1973: in Kesavananda Bharti vs. State of Kerala case, the Supreme Court upheld the validity of the 24th Constitution Amendment Act by reviewing its decision in Golaknath case. The Supreme Court held that the Parliament has power to amend any provision of the constitution, but doing so, the basic structure of the constitution is to be maintained.
• 1981: Waaman Rao case: The SC adhered to the doctrine and clarified that the doctrine would apply to constitutional amendments after April 24^th

Important Supreme Court Judgements and List of Basic Structure Elements:

Synopsis: The proposal of four capitals may not be feasible in India. However, a Supreme Court Bench in south India can be created.

Introduction 

West Bengal’s CM Mamata Banerjee suggested that there should be four capitals of India. She is of the opinion that Parliament sessions should be held in each of the four capitals in rotation. However, the proposal is not feasible.

Why is the plan not feasible?

Each one of the Four Capitals will require parliament buildings, accommodation for all the MPs, and adjunct staff. Moreover, there will be other cost involved with it:

1. Firstly, if constructed, these residential accommodations would be vacant for a year or 2. There would be an added cost of traveling for all the MPs and their staff.
2. Secondly, It will overburden the state police. All the MPs and their vacant accommodations will require security round the clock.
3. Thirdly, depending on the risk factor, enhanced security will have to be necessarily provided to a fair number of MPs.
4. Fourthly, the cost to the government exchequer to have capitals in three other States will be huge. 
   • For instance, the Tamil Nadu Chief Minister proposed to shift the State capital to Tiruchirappalli in central Tamil Nadu in the 1980s. It was shelved due to the huge burden it would impose on the State exchequer. 

The case for SC bench in Southern state

The Bar Councils of the five southern States called for a Supreme Court bench in south India in 2021. This demand needs consideration.

1. Firstly, there is a long-distance between the southern states and Delhi. Many people cannot afford to travel all the way to New Delhi to engage lawyers and plead their cases.
2. Secondly, The excessive fee of the Supreme Court lawyers in New Delhi is another constraint.
3. Third, Attorney General K.K. Venugopal suggested that four benches of the Court of Appeal with 15 judges each should be created across the country. It will reduce the burden of the Supreme Court.
4. Fourth, Moreover, Judges would be able to go through each case thoroughly. Thus, it will ensure the delivery of a well-thought-out verdict. However, implementing this would require an amendment to the Constitution.

The way forward 

This arrangement will allow the Supreme Court to deal with constitutional issues. With cases rising in various courts, a practical solution needs to be worked out. Easy accessibility to justice for every citizen is a right that cannot be countered.

What is the News?

A study by the Development Data Lab has found no evidence of any systemic gender or religious bias in the district and subordinate courts across India.

The lab works with governments, firms, and civil society organizations. It generates policy-relevant knowledge using data.

About the study:

• Data used: The study looked at 2010 to 2018 records of all district and subordinate courts available on the government eCourt platform. This is the first such study of judicial data in India.
• Classification: The study classified judges and defendants according to gender and religion (Muslim and non-Muslim).  It was to examine in-group bias or whether existing structural inequalities led to worse judicial outcomes for women and Muslims.

Key Findings:

Women and Muslims Judges in Lower Courts:

• Women represent 48% of our population, but they constitute only 28% of district court judges.
• Similarly, Muslims represent 14% of India’s population but only 7% of lower court judges.

Outcomes of Cases:

• Male defendants did not get better outcomes in conviction or acquittal when their cases were assigned to men judges. Similarly, women defendants did not get better outcomes before women judges.
• Equally, the judicial outcomes of Muslims were virtually identical whether their cases were assigned to Muslim or to non-Muslim judges.
• However, the lack of bias in Indian lower courts in cases involving Muslims and women does not rule out judicial bias in its entirety.

Drawbacks of the study:

• The study examined bias by religion. But leaves outcaste which is a crucial variable in India.
• The study examines systemic bias during conviction and acquittal. But it leaves out significant markers of the judicial processes such as framing of charges, granting bail, and determining the quantum of punishment.

Other key Studies:

 A study by Delhi-based Project 39A:

• In 2016, there were 385 death row convicts in India. Among them, two-thirds belonged to the backward classes or were religious minorities. All the 12 women death row convicts at that time belonged to backward classes or castes or were religious minorities.

Study by National Crime Records Bureau(NCRB)

• In 2019, Muslims and Dalits constitute the biggest set of undertrials in the country, disproportionate to their share in the population.
• The share of Scheduled Castes among undertrials stood at 21% while their share in the population is at 16.6%(2011 Census).
• Scheduled Tribes and Muslims make up for 10.5% and 18.7% of all undertrials respectively. While their respective share in population is 8.6% and 14.2%.

Source: Indian Express

Synopsis: The instances of court’s 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.  

Context: Inadequacies in the justice delivery system extends beyond the Supreme Court.

What are the various issues faced by the judiciary?

• Spending on judiciary: It is equated with a call for increasing the salaries of judges and providing better court infrastructure. Such perceptions are unfortunate.
• Issues under The Legal Services Authority Act of 1987: Under this law, all women, irrespective of their financial status, are entitled to free legal aid.
  • Free legal aid: Scheduled Castes and Scheduled Tribes and children too are entitled to free legal aid. This means that a significant proportion of the population falls under a free legal aid regime.
  • Lack of well-trained individuals: There has been little effort on the part of successive governments to provide a task force of carefully selected, well-trained and reasonably paid advocates to provide these services.
  • The system of legal aid in the U.K. identifies and funds several independent solicitor offices to provide such services.
• The judge-population ratio: It provides one of the most important yardsticks to measure the health of the legal system.
  • The U.S. has about 100 judges per million population. Canada has about 75 and the U.K. has about 50.
  • India has only 19 judges per million population. Of these, at any given point, at least one-fourth is always vacant.
  • Hardly any attention is focused on this gaping inadequacy in lower courts which is where the common man first comes into contact with the justice delivery system.
  • In All India Judges Association v. Union of India (2001), the Supreme Court had directed the Government of India to increase the judge-population ratio to at least 50 per million population within five years from the date of the judgment. This has not been implemented.
• Other issues:
  • Increasing tribunalisation of the justice delivery process;
  • the extortionate court fees payable to access justice in civil suits in some States; and
  • the poor integration of technology into the system are some issues that readily come to mind.

What can be done?

• Access to justice: Though ‘access to justice’ has not been specifically spelt out as a fundamental right in the Constitution, it has always been treated as such by Indian courts.
  • In Anita Kushwaha v. Pushpa Sadan (2016), the Supreme Court held clearly that if “life” implies not only life in the physical sense but a bundle of rights that make life worth living, there is no justice or other basis for holding that denial of “access to justice” will not affect the quality of human life.
  • Further, the court pointed out important components of access to justice:
    • Existence of adjudicatory mechanisms.
    • Conveniently accessible in terms of distance and
    • The process of adjudication must be speedy and affordable to the disputants.
  • National policy: The executive, judiciary and the legislature are yet to draw out a national policy and road map for clearing backlogs and making these concepts real.

Source: Click here

News: As many as 2927 complexes across India have been connected so far by a high-speed Wide Area Network(WAN) under e-Courts Project.

What is e-court project?

It is an Integrated Mission Mode Project under implementation since 2007 as part of National e-Governance Plan.

• The project is based on the National Policy and Action Plan for Implementation of Information and Communication Technology in Judiciary-2005.
• Aim: To provide designated services to litigants, lawyers and the judiciary by universal computerisation of district and subordinate courts in the country by leveraging Information and Communication Technology (ICT) for improved justice delivery.
• Implementation: The project is monitored and funded by the Ministry of Law and Justice.

Context: Attorney-general KK Venugopal has asked the Supreme court to fix the gender deficit in the Indian judicial system.

Facts on number of Women in Indian judicial system.

• Women comprise only 7.2 per cent of all the judges in the SC and the high courts.
• There were only eight women judges till now in supreme court and there has never been a woman Chief Justice of India.

Why the Indian judicial system is alleged gender insensitive?

• The Madhya Pradesh High Court had asked a man accused of “outraging the modesty of a woman” to visit the home of the victim and ask her to tie a rakhi.
• Nine women lawyers had moved the SC against the bail order.
• Courts are also known to nudge alleged sexual offenders and victims towards “compromise weddings”.
• In one instance, SC Chief Justice presided over a case in which he had been accused of sexual harassment at workplace. The SC, which has empowered judgments on gender rights failed to institute an impartial mechanism to deal with the allegations.
• Similar judgments and conduct of court get tangled in patriarchal notions of honour instead of holding up constitutional rights.

What needs to be done?

• Need for gender sensitisation of judges and lawyers to avoid judgments that exuberates patriarchy.
• Greater representation of women across all levels of judiciary is urgently needed for dismantling patriarchal attitudes.

The judiciary should consider the suggestions of the attorney-general and apprise itself of the gender skew in its workings and take urgent steps to bridge the gap.

News: The Supreme Court has pronounced its reasons for granting interim bail to Republic TV editor-in-chief Arnab Goswami in connection with the abetment of suicide case against him.

Facts:

Key Takeaways from the Judgement:

• Protect Personal Liberty: The Supreme Court called on judges to protect personal liberty and the right of ordinary people to bail saying liberty is not a gift for the few and deprivation of liberty even for a single day is one day too many.
• Importance of Bail: The apex court invoked the case of State of Rajasthan, Jaipur v Balchand and referred to Justice Krishna Iyer’s statement that “basic rule of our criminal justice system is bail,not jail”.
• Courts as first line of Defence: The Courts must ensure that they continue to remain the first line of defence when citizens liberty is deprived.But in reality, undertrials remained behind bars while their bail applications were lobbed from one rung of courts to another.
• Pending Bail Pleas: The court highlighted that 91,568 bail pleas were pending in High Courts, while 1.96 lakh bail applications continued to wait for a hearing in the district courts.Hence, it urged the judges in charge of these courts to utilise tools at their disposal to address this pendency.
• Importance of District Courts: The district courts are only subordinate in hierarchy.It is less to none when it comes to saving the lives of citizens or doing justice for them.Hence, the district judiciary must be alive to the situation as it prevails on the ground – in the jails and police stations where human dignity has no protector.

Context: The Chief Justice of India is reported to have stated during the hearing of journalist Siddique Kappan’s bail matter, that the Court was trying to “discourage” recourse to Article 32.

What does article 32 says?

• The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
• CJI M Hidayatullah in Tilokchand (1970) said that what Article 32 does is to keep open “the doors of this court” and requires the state not to put any hindrance to a person seeking to approach the Court.

What are exceptions to the article 32?

• The Court regards Article 32 as a judicial power subject to the fundamental principles of administration of justice.
• It does not mean that the Court must ignore and trample under foot all laws of procedure, evidence, limitation, res judicata and the like.
• Justice MP Thakkar and Kanubhai Brahmbhatt observed that time for imposing self-discipline has already come, even if it involves shedding of some amount of institutional ego and to inspire confidence in the litigants that justice will be meted out to them.
• Even if there is a constitutional right to remedies it remains subject to the discipline of judicial power and process.
• Article 33 clearly says that the right will not extend to the members of armed forces.
• Justice Patnaik maintains that the article 33 and 34 will not eclipse the right of a person detained without the authority of law to move for habeas corpus.

How the new facets of article 32 evolved?

• In 1950, it has ruled that powers under Article 32 are not limited to the exercise of prerogative writs.
• In 1987 the Court ruled that it has powers to rule for compensation of violation of fundamental rights.
• In 1999 it said that this power extended to the rectification of its own mistakes or errors.
• The Court has also upheld (in 1997) the 50th amendment enlarging the scope of this article against a challenge of the basic structure of the Constitution.

What are the issues have been raised?

• CJI or the Court as a whole should not suffer from epistemic collapse so as to receive sharp reminders and rebukes from citizen commentators.
• Article 32 does not merely confer wide powers on the Court but also the judicial duty to provide constitutional remedies.
• Lawyers and justices know what distinguishes Article 32 from Article 226 is the very dimension of it. HCs have the discretion to act or not to.
• Article 32 is not absolute. The Supreme Court decides on what “appropriate proceedings” should be for it to be so moved.
• Discrimination in bail where one case is fast tracked whereas others are consigned to slow moving judicial action.
• Scandalous judicial delays and a bold resolution of “who watches the watchman” syndrome demand urgent response.

Article 32 makes the apex court into a “people’s court” and in future we should be able to conclude that the Court did not deliberately dealt deathblows to the “soul” of the Constitution.

Context- Criticism is the hallmark of a prosperous democracy, but unfounded and unrestrained criticism is harmful rather than contributive.

Why judiciary is the strongest pillar on which the edifice of Indian democracy stands?

1. India ranks in the top one-third of nations in efficiency of the legal framework to challenge regulations and in judicial independence.
2. At the cost of being criticized for over-interference, the courts have strained to protect the life, liberty and the quality of life of citizens.
3. India’s overburdened judiciary has been epitome of a free and independent judiciary worldwide.

• On the other hand, US Supreme Court only accepts 100-150 of the more than 7,000 cases it is asked to review annually. In 2016-2017, only 92 cases were heard by the UK SC.

How Indian judiciary system is different from Poland, Hungary and Turkey?

1. In Poland– The legislative proposal aimed to ban judges from obeying the orders from their own Supreme Court making them liable for prosecution.
2. In Turkey– Thousands of Turkey’s judges and prosecutors have been sacked or jailed as Erdogan’s government wields the judiciary against its opponents.

• They have been replaced by loyal and inexperienced newcomers, some in their 20s, plunging the courts into crisis.
• By a new law, most of the 711 judges of the two highest courts will also be removed.

3. In Hungary – The Hungarian parliament is planning to establish a government-influenced judiciary system, apart from the ordinary courts, to establish direct political control over the judiciary.

Therefore, such a comparison is unjustified and unfounded to the Indian scenario.

Examples of Supreme Court landmark decision-

• SC ordered floor test within 24 hours in Maharashtra that led to the resignation of Devendra Fadnavis as chief minister.
• Defending LGBTQ and transgender rights.
• SC rules in favour of permanent commission to women officers and guaranteeing them the same terms of employment as men.
• Upheld the supremacy of the RTI Act over the Official Secrets Act.
• SC brought India’s most polarising case to a peaceful close through its Ayodhya judgment.

Way forward-

• Judicial barbarism is an extremely unjust and unfair description of the conduct of the Supreme Court.
• Constructive criticism – People should try and strengthen institutions with balanced and constructive critique and not slowly nibble at their foundation by constant badgering and berating.

Context: Recently questions have been raised on functioning of judiciary that it is slipping into “judicial barbarism”.

What are the recent charges made against the judiciary?

• Electoral bonds case: The court has refused to do timely hearings of cases that go to the heart of the institutional integrity of a democracy.
• Elgar Parishad case: The Supreme Court has been blamed for denying bail to Sudha Bharadwaj and Anand Teltumbde, who has been detained in the Bhima Koregaon case that is being probed by the National Investigation Agency.
• Promoting Love Jihad: judiciary was blamed in legitimising this newest assault on liberty.
• Arnab Goswami case: Where the Chief Justice of India was blamed for quick hearing of Arnab’s case when other significant constitutional cases are pending for hearing before the court.

Why the charges laid against judiciary are not true?

• Judiciary has effectively Protected Individuals Liberty: In the Prashant Bhushan case and the case of journalist Vinod Dua. After criticising government, these individuals got an early and effective hearing and also relief from the court.
• Judiciary has effectively Protected the Freedom from arrest: In 2018, Teltumbde was granted interim protection from arrest by the Bombay High Court. These are reflective of the fact that the Supreme Court has always come to the rescue of citizens.
• Judiciary has effectively Protected right to privacy: Historic verdicts by the SC such as nine judges held that the right to privacy is a fundamental right and it held that the CJI is a public authority under the RTI Act.
• Judiciary has always Ensured justice: For example, Umar Khalid though a student he has been probed for his role in the Delhi riots for allegedly trying to incite violence during the Delhi riots, which cost more than 50 lives.
• Judiciary has effectively Protected individuals freedom and choice: The Supreme Court in Shafin Jahan v. Ashokan K M (Hadiya case) observed that Hadiya, being a 24-year-old adult, had the power to make her own decisions, and the court could not compel her to go to her father or husband against her will.
• Judiciary has effectively Protected individuals from malafide prosecution: Arnab goswami case prima facie appears to be a case of malafide prosecution. The Supreme Court rightly remarked that the accused should pursue his remedy before the high court.

The criticism of the judiciary stems not from facts or evidence but from ideological inclination and dislike of particular political leaders.

what is the Issue of application of Article 32

Dr B.R. Ambedkar had once said,

‘If I was asked to name any particular article in this Constitution as the most important – an article without which this Constitution would be a nullity, I could not refer to any other article except this one (Article 32). It is the very soul of the Constitution and the very heart of it.’

News: Recently a Supreme Court Bench headed by Chief Justice of India S. A. Bobde observed that it is “trying to discourage” individuals from filing petitions under Article 32 of the Constitution.

What was the case?

• Kerala-based Siddique Kappan was arrested on 5 October when he was on his way to Hathras to report on the alleged gang rape and murder of a 20-year-old Dalit woman.
• Initially, he along with 3 others was arrested under Section 151 of the Code of Criminal Procedure (CrPC), later he was booked on charges of sedition and sections of the Unlawful Activities Prevention Act (UAPA).
• A habeas corpus petition seeking release of Kerala-based Siddique Kappan was filed in the Supreme Court.
• However, it is not the sole case that has met the same fate, in an another case, Article 32 petition filed on behalf of Nagpur resident Sameet Thakkar (arrested for allegedly making objectionable comments against Maharashtra CM) was also declined.

What is the issue all about?

• As per Faizan Mustafa, vice chancellor of the NALSAR University, ideally, cases must first go to the high court. However, SC should also be consistent in the matters, then only the desired results can be achieved.

Decisions in the similar cases

• In a recent matter, the Bench of CJI Bobde, Justice A S Bopanna and Justice V Ramasubramanian had issued a contempt noticeto the Assistant Secretary of the Maharashtra Assembly who, in a letter to Republic TV editor-in-chief Arnab Goswami, had questioned him for approaching the top court against the breach-of-privilege notice.
• The court had then said that the right to approach the Supreme Court under Article 32 is itself a fundamental right and that

“there is no doubt that if a citizen of India is deterred in any case from approaching this Court in exercise of his right under Article 32 of the Constitution of India, it would amount to a serious and direct interference in the administration of justice in the country”.

• Even as the Supreme Court underlines the powers of the high courts, it has in the past transferred cases to itself from the high courts.

Transfer of Cases

• Even though SC underlines the powers of the high courts, there are past examples of transferring cases Suo Moto, to itself from the high courts.
• Most recently, the Supreme Court transferred the case involving land use for the national capital’s Central Vista project to itself from the Delhi High Court.
• In 2018, the SC had transferred the case seeking probe into the death of judge B H Loya from the Bombay High Court to itself.
• When such transfers take place petitioners lose a stage of appeal that would otherwise have been available had the High Court heard and decided the case.

Fundamental rights under article 32

• Article 32 of the constitution is a Fundamental Right that  falls under Part III of the Constitution that includes the fundamental rights of individuals.
• It provides individuals, seeking enforcement of other fundamental rights recognized by the Constitution, the right to approach the Supreme Court directly.
• Under Article 32 the Supreme Court have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari.
• The right guaranteed by this Article ‘shall not be suspended except as otherwise provided for by this Constitution’.
  • Under Article 226 of the Constitution, similar powers have been conferred on high courts, to enforce the fundamental rights of citizens. However, article 226 is not a fundamental right like Article 32.
  • The two provisions are not mutually exclusive and allow a citizen to either approach the high court that has jurisdiction over the case or the Supreme Court.
  • However, scope of Article 226 is wider than that of Article 32, as it covers issues other than fundamental rights as well.
• Both the High Courts and the Supreme Court can be approached for violation or enactment of fundamental rights through five kinds of writs:

1. Habeas corpus: It is issued against the illegal detentions and wrongful arrests to ensure personal liberty and considered as one of the most important writs for personal liberty.
2. Mandamus:It is issued against public officials, governments, courts to perform a statutory duty
3. Certiorari:Issued for re-examination of an order or decision by judicial, quasi-judicial or administrative authorities.
4. Prohibition: Issued for directing judicial or quasi-judicial authorities to stop from going ahead with certain proceedings to ensure that it does not exceed its jurisdiction.
5. Quo warranto:It is issued to prevent people from assuming positions in public office when she or he is not entitled to it.

Previous judgments related to article 32

• In Romesh Thappar vs State of Madras (1950), the Supreme Court observed that Article 32 provides a “guaranteed” remedy for the enforcement of fundamental rights. “This Court is thus constituted the protector and guarantor of fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights,” the court observed.
• In Additional District Magistrate, Jabalpur vs S S Shukla (1976), During the Emergency, the Supreme Court had ruled that the right to constitutional remedies under Article 32 would remain suspended during a national emergency.
• 44^th Constitutional amendment provided that president could issue orders suspending the right to move any court for the enforcement of fundamental rights, under Article 32, during a national emergency, with the exception of Article 20 and 21.

Conclusion

Constitutional experts say that it is eventually at the discretion of the Supreme Court and each individual judge to decide whether an intervention is warranted in a case, which could also be heard by the High Court first. There is need to bring in more clarity by judiciary on the matter of article 32 so that people do not lose their hope in the justice system as the ultimate remedy for the violation of their rights.

News: Attorney General has given his consent for the initiation of criminal contempt proceedings against stand-up comedian Kunal Kamra for his tweets following the Supreme Court’s decision to grant interim bail to a television anchor.

Facts:

• Contempt of Court: As per the Contempt of Courts Act 1971, contempt refers to the offense of showing disrespect to the dignity or authority of a court.
• Types: The act divides contempt into civil and criminal contempt.
  • Civil contempt: It is willful disobedience to a judgment, decree, direction, order, writ or other processes of a court or wilful breach of an undertaking given to the court.
  • Criminal contempt: It means the publication (whether by words, spoken or written or by signs or by visible representations) of any matter or the doing of any other act whatsoever which
    • scandalizes or tends to scandalize or lowers or tends to lower the authority of, any court; or
    • prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
    • interferes or tends to interfere with or obstructs or tends to obstruct, the administration of justice in any other manner.
  • In 2006, the government brought in an amendment which now provides “truth” as defence provided it is bona fide and in public interest.
• Prior Consent of AG: According to Contempt of Court Act, 1971, prior consent in writing of the Attorney General(AG) is required for the Supreme Court to initiate criminal contempt action in a case.
• Punishment: A contempt of court may be punished with:
  • Simple imprisonment which may extend to six months or
  • Fine which may extend to two thousand rupees or With both.
  • However,the accused may also be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court.

Context: Attorney-General K.K. Venugopal on Monday declined to give consent to the initiation of contempt proceedings against A.P. Chief Minister Jagan Mohan Reddy and his Principal Adviser Ajeya Kallam.

What is Contempt of court?

• Contempt of Court is the offense of being disobedient to or being disrespectful towards a court of law.
• Any action which defies a court’s authority or impedes the ability of the court to perform its functions or wilfully fails to obey a court order.
• A judge may impose sanctions such as a fine or jail on the person, found guilty of contempt of court.

There are two types of contempt of Court:

1. Civil Contempt
2. Criminal Contempt

Civil contempt of Court: Under Section 2(b) of the Contempt of Courts Act of 1971, civil contempt has been defined as willful disobedience to any judgment, decree, direction, order, writ, or other processes of a court or wilful breach of an undertaking given to a court.

Criminal Contempt of Court: It is defined under Section 2(c) of Contempt of Court Act, 1971. According to which criminal contempt is any publication which may result in:

• Scandalizing the Court by lowering its authority.
• Interference in the due course of a judicial proceeding.
• Creates an obstruction in the administration of justice. 

Source of Contempt Law:

The contempt powers of the Supreme Court trace their source to different provisions in the Constitution of India, namely, Article 32, 129, 131, 139A, and 142(2).

• Article 129: “The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself”
• Article 215:
• “Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself”
• High Courts have been given special powers to punish contempt of subordinate courts, as per Section 10 of The Contempt of Courts Act of 1971.
• High Courts do not have the power to initiate contempt proceedings of the Supreme Court, if there is contempt of the Supreme Court then only the Supreme Court can initiate the contempt proceeding.
• Article 142(2): Enables the Supreme Court to investigate and punish any person for its contempt.

Contempt of Courts Act of 1971–

• The Act defines the power of courts to punish for their contempt and regulates their procedure.
• It gives courts powers to restrict an individual’s fundamental right to personal liberty for “scandalizing the court” or for “wilful disobedience” of any judgment, writ, direction, or order.
• Under the Act, judges could also be tried if they act in contempt of court. For Example, Justice Karnan was awarded six months of jail term for contempt of SC.

The amendment to the Contempt of Courts Act, 1971 in 2006

Before the amendment, neither ‘truth’ nor ‘good faith’, were a defense against contempt proceedings in India. However, the 1971 amendment made truth a valid defense in all contempt proceedings if the publication is in the public interest and is bonafide. It also clarified that the Court may impose punishment for contempt only when it is satisfied that the action substantially interferes, or tends to substantially interfere with the course of justice. 

Judicial cases dealing with contempt law and Court’s views:

• Hiralal Dixit vs. state of UP, 1954: Actual hindrance or obstruction in the administration of justice is not an essential condition, acts which may be derogatory and resulting in lowering of court’sin public eyes, may result in contempt of Court.
• K. Daphtary vs. O.P. Gupta 1971: Any act which brings down the confidence of Judiciary in the minds of the general public or is hindering the administration of justice or affecting the reputation of the judges of the SC or the SC itself, can be read under Article 129 read with Article 142 and considered under contempt law.
• Auto Shankar’s case, 1994: Court invoked the famous “Sullivan doctrine” that public persons must be open to stringent comments and accusations as long as made with bonafide diligence, even if untrue.

In the case of SUBRAMANIAN SWAMY V. UNION OF INDIA, 2016 it was held that the comments made regarding a particular Judge of the Court would not amount to contempt and this would amount to defamation under Section 499 of the Indian Penal Code, 1860. Thus, the comment or the publication should be of such nature that it hinders the administration of justice.

• Duda P.N.V. Shivshankar Case 1998: SC observed that contempt jurisdiction should not be used by Judges to uphold their own dignity. In the free marketplace of ideas, criticism of the judicial system or the Judges should be welcomed until they don’t impair or hamper the “administration of justice”.

In the recent case where a press conference was held by four senior-most judges of SC was not a contempt of court as they had exercised their right of speech and expression under Art. 19(1)(a) of the constitution; and also their act was done in good faith and for the public interest.

• Arundhati Roy Case: SC observed that fair criticism of the conduct of a Judge, the institution of the judiciary, and its functioning may not amount to contempt if made in good faith and in the public interest.
• Sahara case, 2012: Five-judge bench of SC permitted contempt law as a pre-emptive mechanism in pending proceedings so that sensitive reports and comments don’t lead to a “real and substantial risk of prejudice to the proper administration of justice” and “the fairness of trial”.
• Indirect Tax Practitioners’ Association vs. R.K. Jain, 2015: C. observed that the Court may permit ‘truth’ as a defense against contempt proceedings if two things are satisfied
• It is in the public interest
• The request for invoking said the defense is bona fide.

Recent instances where contempt of court proceedings was invoked by courts:

• In October 2018, contempt proceedings were initiated by Delhi High Court against journalist S. Gurumurthy, who tweeted about alleged bias in the court’s decision in Bhima-Koregaon violence case.
• The Bombay High Court in October 2018 sentenced a former journalist, KetanTirodkar, to three months’ simple imprisonment and Rs 2000 fine for posting defamatory allegations against sitting and retired judges on social media. The court observed that social media users don’t have the unfettered right to make baseless allegations citing freedom of speech and expression.

Contempt of court law is draconian and should be discouraged because:

• Antithetical to freedom of speech: Article 19(1)(a)of the Constitution gives the right to freedom of speech and expression to all citizens, while Articles 129 and 215 curb people’s freedom to speak against the court’s functioning.
• Subjective definition: The law is not objectively defined and can be used against even bonafide intentions. It is often used by judges arbitrarily to suppress their criticism by the public. As Justice Krishna Iyer said, the law of contempt has a vague and wandering jurisdiction with uncertain boundaries.

In the US, courts no longer use contempt to silence comments on judges or legal matters. The First Amendment to the US Constitution forbids the imposition of contempt sanctions on newspapers.

• Conflict of interest: Contempt law invokes conflict of interest for the judiciary as it itself is the victim and the judge simultaneously.
• Against democratic ethos: True democracy sustains with constructive criticism and contempt law suppresses criticism of judiciary by the public.
• Against people’s sovereignty: Contempt law is not in consonance with the constitutional scheme which makes people sovereign and the source of all power.
• Misplaced law: An enforced silence, in the name of preserving the dignity of the judiciary, would cause more resentment, suspicion and disrespect for the judiciary among people than the opposite.
• Discontinued elsewhere: The offense of “scandalizing the court” continues in India while it was abolished in England and Wales long ago.In March 8, 2018, the Department of Justice wrote to Law Commission, asking it to amend the 1971 Act to drop “scandalizing the court” as a ground for contempt and restrict contempt to only “wilful disobedience” of directions/judgments of the court.
• Lack of safeguards: Contempt law is draconian in nature without commensurate safeguards in favor of the persons charged with the accusation of having committed contempt of court.

Way-forward:

• The right of the citizens to free speech and expression under Article 19(1)(a) should be treated as primary, and the power of contempt should be subordinate.
• Judiciary should balance two conflicting principles, i.e. freedom of expression, and fair and fearless justice.
• This extraordinary power must be sparingly exercised considering the subjectivity involved in its definition and only when there is public interest demand.
• The purpose of the contempt power should not be to uphold the majesty and dignity of the court but only to enable it to function.
• It’s time for the legislature to take steps to amend the Contempt of Court Act and objectively define the confines of contempt law and its applicability.
• Establishing a review mechanism, as a safeguard against judicial tyranny and to remove the conflict of interest, by instituting an independent panel to verify the actions which extract contempt law.

What is the News?
The tenure of the Commission to examine the Sub-categorisation of Other Backward Classes(OBCs) is extended. The commission now has until July 31 to submit its report. The commission is headed by Justice G Rohini.

What is Sub-Categorisation of OBCs?

• Reservation among OBCs: OBCs are granted 27% reservation in jobs and education under the central government. However, only a few affluent communities of OBCs secure a major part of quota.
• Sub-categorisation of the OBCs means the creation of categories within OBCs for reservation. This will ensure equitable distribution of representation among all OBC communities.

Commission to examine Sub-Categorisation:

The Commission to Examine Sub-categorisation of OBCs was appointed in 2017. It is headed by Justice G Rohini. The terms of reference of the commission include:

• To examine the extent of inequitable distribution of benefits of reservation among the castes or communities of OBCs.
• To frame the criteria and parameters in a scientific approach for sub-categorization within such OBCs;
• To audit the various entries in the Central List of OBCs and recommend corrections.

What are the commission’s findings so far?

• In 2018, the Commission analyzed the data of 1.3 lakh central jobs given under OBC quota over the preceding five years.
• Findings: The key findings were:
  • 97% of all jobs and educational seats have gone to just 25% of all sub-castes classified as OBCs;
  • 95% of jobs and seats have gone to just 10 OBC communities;
  • 983 OBC communities — 37% of the total — have zero representation in jobs and educational institutions;
  • 994 OBC sub-castes have a total representation of only 2.68% in recruitment and admissions.

Source: Indian Express

Why in News?  

The Union government has asked WhatsApp to withdraw the proposed changes to its privacy policy. 

 Facts: 

 Questions Posed by Government to WhatsApp: 

 Source: Business Standard 

 Key Concerns over WhatsApp Privacy Policy: 

• • Privacy of Citizens: The policy should be reconsidered to respect the informational privacy, freedom of choice and data security of Indian citizens. 
  • Differential Policies: The privacy policy for European users specifically prohibits the use of any information shared with Facebook. This clause is not present in the privacy policy offered to Indian users. 
  • All or nothing approach: Government has objected to the all-or-nothing approach of WhatsApp. This approach forces users to accept the new service terms and privacy policies, without giving an option to opt-out. 
  • Supreme Court Judgments: Government has reminded WhatsApp about the Puttaswamy vs. Union of India(2017) judgment where the Supreme Court has ruled that Fundamental Right to Privacy is intrinsic to life and liberty and comes under Article 21 of the Indian constitution. 

 Further Reading on WhatsApp Privacy Policy: http://bit.ly/38Ww0jk

Article Source

Synopsis: The Allahabad high court’s recent decision to strike down the provisions of the Special Marriage Act, 1954 that make it mandatory for couples to publish a 30-day public notice of their intent to marry is a significant and much-needed correction.

About the Special Marriage Act

• • The Special Marriage Act was originally enacted in 1872 to provide a framework for inter-caste and inter-religious marriages.
  • The Act allows the solemnization of marriages (performing the public ceremony/rites of marriage) without any religious customs or rituals. The law solemnizes marriages by the way of registration.
  • As per Section 5 of the Special Marriage Act, marriages irrespective of the religion of the couple require parties to give a 30-day public notice of their intention to marry before solemnizing their marriage
  • The provision of mandatory 30 days’ notice period ended up giving vigilante groups, families hostile to inter-faith and inter-caste unions with disproportionate powers to police young couples.
  • The Act is applicable to all Indian citizens and Indian nationals who live in abroad.
  • Allahabad High Court observed the Special Marriage Act as ‘one of the earliest endeavours towards Uniform Civil Code.

About the case 

Recently, in response to a writ petition filed, Allahabad High Court gave a judgment that would have far-reaching impacts.

• • In its conclusion, the HC stated, though the couple wanted to marry under the Special Marriage Act, the mandatory provision for 30-day notice, under section 5 of the act, compelled them to take the easier route of religious conversion.
  • Thus, Section 5 acting as a barrier to inter-faith couples, willing to marry under the secular SMA rather than taking religious conversion routes.
  • On this basis, the Court allowed couples not to publish the mandatory 30-day notice of their intention to marry.
  • Also, the court allowed the individuals, who desire to have more information about their counterparts, to opt for publication of notice under Section 6 of the Act. Such publication of notice under free will not be a violation of fundamental rights due to free choice.
  • The court also noted that when marriages under personal law do not require a notice or invitation for objections, such a requirement for inter-faith couples’ is obsolete in secular law and cannot be forced on a couple.

• • As a result, many preferred to convert and marry under personal laws, rather than under the Special Marriage Act, 1954 to prevent themselves from harassment.

Why the Allahabad high court’s decision is regarded as a significant step?

The high court’s ruling against the mandatory need for couples to publish a 30-day public notice has been praised for the following reasons,

• • First, the decision comes at the right time where the anti-conversion ordinances in Uttar Pradesh and Madhya Pradesh have endorsed the state intrusions on inter-personal relationships.  The decision will protect the primacy of individual autonomy.
  • Second, the HC ruling is in line with The Law Commission of India report in 2012 that recommended keeping a check on the unnecessary interference by caste assemblies in sagotra, inter-caste or inter-religious marriages.
  • Third, The HC judgment reaffirms the constitutional protection to minorities as even today a minuscule of the minority of marriages are, inter-faith unions.
  • Fourth, it is in line with a series of landmark Supreme Court judgments that are against societal and state interference in personal affairs and firmly establishes personal liberty and privacy to be fundamental. For example,

• • • Puttaswamy v Union of India, that recognise the right to privacy as a fundamental right
    • The Hadiya case, right to choose one’s partner.
    • In Navtej Singh Johar case: The ruling that decriminalised homosexuality.

• • It will be a body blow to Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 which have provisions such as

• • • Declaring conversion of religion by marriage to be unlawful
    • Mandating a 60-day notice to the District Magistrate
    • Requiring the Magistrate to conduct a police inquiry to know the real intention behind the conversion.

• • As the Special Marriage Act is a central legislation, couples across the country seeking to marry under the law will benefit from the liberal ruling of the provisions.
  • It paves way for abolishing and cleansing obsolete Victorian-era protectionist provisions in other laws as well.

The Allahabad High Court judgement is a reminder and a warning that the constitution remains the bulwark against an overreaching state policy such as the anti-conversion ordinance in UP and MP.

Context:

The recent WhatsApp privacy policy attracted widespread criticism among various sections of society for its latest privacy policy. Due to severe protests, WhatsApp has issued clarification related to its policy. But there is a wider concern about data protection in India.

Click here to read about the new Whatsapp privacy policy

What is the clarification WhatsApp has issued?

In its latest clarification, WhatsApp is trying to differentiate between “messages with friends or family” and “messages with a business”.

Whatsapp says that the latest changes only affect the “messages with a business”. Policy regarding “messages with friends or family” will remain the same.

In its clarification WhatsApp has issued the following statements:

• • Personal messages are protected by end-to-end encryption and neither accessed nor heard by WhatsApp or Facebook.
  • No log of personal messages or calls has been maintained due to “privacy and security risk”.
  • Location shared by users are also protected by end-to-end encryption and cannot be seen by WhatsApp or Facebook.
  • Any user’s contact is not shared with Facebook or any other App.
  • All the communications within WhatsApp groups are end-to-end encrypted and are not shared with Facebook for Ads.

How business messages are different?

• • Businesses on Facebook will be able to create Facebook shops to create an online store and interact with the users through WhatsApp.
  • WhatsApp will soon offer businesses with Facebook’s hosting services to manage their communication with users.
  • On these hosting services, Businesses will soon be provided with the facilities to manage WhatsApp chats with their customers, answer questions and send information like purchase receipts.
  • Businesses will be allowed to use the above information for their marketing, including ads on Facebook.
  • However, Businesses using Facebook’s hosting services will be labelled, to make the user aware of what follows.
  • If the users are interacting with the businesses on WhatsApp for shopping or other purposes, their shopping activities will be shared with Facebook to personalise their experience on the related ads on Facebook and Instagram.

What is the Privacy Policy in EU?

• • Privacy policies of different countries put different types of restrictions on businesses. EU’s General Data Protection Regulation (GDPR) provides much more control to the users on their personal information shared on the online platforms.
  • While in the EU also, WhatsApp privacy policy talks about sharing information with Facebook, but users have an additional right “Managing and Retaining Your Information”.
  • As per WhatsApp’s own policy for EU, Users there can access, rectify, port, and erase their information.
  • They can not only restrict or object to a certain type of information used by the platform but also can withdraw their consent to WhatsApp for processing of data.

How data is protected in India?   

In Puttaswamy v India (2017) case, privacy was established as a fundamental right. In other cases, MP Sharma v. Satish Chandra (1954) and Kharak Singh v. Uttar Pradesh (1962), as well, Privacy rights were upheld by SC.

As India has not implemented the Personal Data Protection Bill, there is no control over how user data will be processed by tech companies.

Click here to read about the challenges of Personal Data Protection Bill.

Apart from this IT Act 2000, and its amendment in 2008 deal with data protection to some extent.

• • Information Technology (Reasonable Security Practices and Sensitive Personal Data or Information) Rules, 2011 issued under the Information Technology Act, 2000, provides a measure of legal protection of personal information
  • Breach of data privacy is punishable under Section 72-A of the IT Act. The Act Penalises the offender for three year imprisonment or a maximum fine of Rs 5 lakh.
  • But this provision is only applicable to corporate entities not to individuals.
  • Rules are restricted to sensitive personal data — medical history, biometric information, and sexual history, among other things.

Way forward:

Justice BN Srikrishna committee report talks about three approaches to data protection and a draft data protection bill.

1. 1. The US model of laissez-faire approach: The USA does not have an overarching data protection framework.
   2. European Model of GDPR: Provides control of personal data in the hands of the data generators (Users)
   3. China’s model of protecting National interests: China created a national law in 2017 which contains top-level principles for handling personal data.

Though WhatsApp’s privacy policy is relaxed to some extent it is not perfect. This might be the first of many such privacy guidelines by the companies operating in India. The solution lies in the faster enactment of the Personal Data Protection Bill and the successful implementation of the Act. It is high time the government should enact the same.

Synopsis– Faulty understanding of the triple talaq law i.e., Muslim Women (Protection of Rights on Marriage) Act of 2019, as well as the Islamic law on divorce is leading to misuse of the act. 

Introduction-  In the Muslim Women (Protection of Rights on Marriage) Act of 2019, a Supreme Court Bench led by Justice D Y Chandrachud observed that mother-in-law of the second respondent (wife) cannot be accused of the offence of pronouncement of triple talaq under the Act as the offence can only be committed by a Muslim man (husband). It clearly shows that the act is being misunderstood.  

Background of the anti-triple talaq law-  

• Anti-women divorce customs prevalent in pre-Islamic Arabia had been given a severe blow by the teachings of  great social reformer Prophet Muhammad.  
• On the basis that “old habits die hard”, unscrupulous men innovated ways and means to circumvent the Prophet’s noble teachings.  
• One of these was the practice of triple talaq — repeating the word “talaq” thrice — which was believed to effect instant dissolution of marriage leaving no room for any reconsideration or reconciliation.  
• Instead of defeating this innovation, law men of the time called it talaq-ul-bidat and declared it to be “sinful but effective”.  
• This concept remained in Muslim societies for centuries across the globe.  
• But due to its devastating effects on families and societies, country after country in Asia and Africa gradually abolished by legislation the detestable practice of triple talaq. 

Situation in India- 

India took a much longer time to follow suit. During British rule, courts kept this law alive as a  “sinful but effective” form of divorce after calling it a concept “bad in theology but good in law.”  

Post– Independence, some High Court judges like VR Krishna Iyer of Kerala and Baharul Islam of Assam tried to awaken the custodians of state authority to the need for its abolition.  

Finally, the practice of triple talaq was outlawed in the Shayara Bano case of 2017. The anti-triple talaq Act of 2019 was the outcome of this judicial reform. 

How provisions of Triple Talaq law are often misunderstood

• Misuse of Section 498A of the Indian Penal Code (cruelty to a woman by her husband or his relatives) was once acknowledged by the apex court and formalized some measures. But under feminist pressure, the measures were withdrawn.  
• Anti-triple talaq law together with Section 498A is proving destructive for the families.  
  • • For Instance, in one triple talaq case in Kerala, a lawyer of a woman included her husband’s mother in the FIR filed against her husband in reference to the said IPC provision.  
• Kerala High Court had refused bail to the accused husband’s mother. The case went to SC where SC highlighted the faulty applications os the act, that

• • • There is no specific provision in Section 7(c), or elsewhere in the Act, making Section 438 inapplicable to an offence punishable under the Ac 

• Section 7 of the 2019 act is particularly misunderstood. Many lawyer misbelief that it overrides the general provision for anticipatory bail under Section 438 of the Criminal Procedure Code.  

• • • For example, after enactment of the act, a man accused in the Triple talaq case sought anticipatory bail in the Bombay High Court. Lawyer argued that the non-obstante clause in Section 7, makes CrPC provision inapplicable.  
    • However, Court rejected the argument and granted bail to the person. 

• For understanding the common-sense fact that this Act is meant to discipline erring husbands only, the learned lawyers needed a learning session with the apex court. 

Conclusion

The verdict of SC is a significant step towards preventing the misuse of the anti-triple divorce law.

News: WhatsApp has updated its terms of service and privacy policy on Wednesday for users in India.Users have till February 8,2021 to accept these in order to continue using the platform.

Facts:

Key Features of the Policy:

• End-to-End Encrypted: The messages on WhatsApp are end-to-end encrypted which means nobody can see your messages or share it with anyone.
• Information Sharing with Third Party Services: When users rely on third-party services or other Facebook Company Products that are integrated with our Services, those third-party services may receive information about what you or others share with them.
• Hardware Information: WhatsApp collects information from devices such as battery level, signal strength, app version, browser information, mobile network, connection information (including phone number, mobile operator or ISP) among others.
• Deleting the Account: If someone only deletes the WhatsApp app from their device without using the in-app delete my account feature, then that user’s information will remain stored with the platform.
• Data Storage: WhatsApp mentions that it uses Facebook’s global infrastructure and data centers including those in the United States to store user data. It also states that the data in some cases will be transferred to the United States or other parts where Facebook’s affiliate companies are based.
• Location: Even if a user does not use their location-relation features, Whatsapp collects IP addresses and other information like phone number area codes to estimate your general location (city, country).
• Businesses interacting with users: WhatsApp says that any businesses that users interact with may provide the platform with information as well. The content shared with a business on WhatsApp will be visible to several people in that business.
• Payment Services: WhatsApp says that if anyone uses their payments services they will process additional information about you, including payment account and transaction information.

Article Source

Introduction  

The year 2021 is the centenary year of the “Communal” Government Order (GO) in Madras Presidency. It introduced reservations based on castes and communities.

GO was the acknowledgment of the social inequalities prevalent in the society, by the British.

Reservation became one of the most divisive public issues, dividing them into ‘reserved’ and ‘general’ categories. The reservation was seen as the opposite of a merit system.

Reservation, the especially caste-based reservation has been established as bad, whereas the reservations in the name of ‘Merit Stream’ for the wards of employees or alumni of universities and colleges is seen as right and justified.

• For example; some of the colleges reserve postgraduate seats for the students enrolled in their own undergraduate honors programs. But officially this system is called the ‘Merit Stream’.

However, now with the EWS quota and entry of reserved category students in unreserved categories this difference is getting blurred.

Are the merit system and caste-based reservation, mutually exclusive?

• If not segregated by the ideological differences, all reservations use merit-based criteria for the selection of eligible candidates. Thus, they are not mutually exclusive.
• Even in the merit-based system, reservation like arrangements has been established that built exclusionary access. merit is achieved by a mix of ability, effort, and social capital and the social capital plays the most crucial role in it.
  • For example; expensive private schools or coaching institutes are affordable for the rich only, thus ability and effort only cannot get a student admission in them.
• Most recent judgment in the Saurav Yadav vs. State of Uttar Pradesh case, reiterate the judgment of Mandal judgment, that un-reserved category must be open to all and selection should be merit-based, including for those belonging to categories entitled to reservations.
• Thus, the reserved candidates making their way into the unreserved categories by the competition with the unreserved candidates should be appreciated.

Synopsis– Present data-based technological development and Personal Data Protection Bill 2019 presents a unique challenge to the privacy of individuals.  

Introduction Personal Data Protection Bill 2019   –

By Puttaswamy v India (2017) case, privacy was established as a fundamental right. In other cases, MP Sharma v. Satish Chandra (1954) and Kharak Singh v. Uttar Pradesh (1962), as well, Privacy rights were upheld by SC.  

However, the development of global technology and implementation of the Aadhaar biometric programme in India have diluted the effect of these rulings. Now there is an urgent need to take a new look at the legal position of privacy in India. 

As depicted by Aadhaar based technology and global social media platforms, data has become a new oil i.e., it has become a tool for economic and political gain. It created a stream of data protection legislations, globally. India is also trying to join the league by Personal Data Protection Bill 2019 (DPB).   

In India, the Personal Data Protection Bill 2019 (DPB) is currently under consideration by a parliamentary committee. There are various issues in this bill that go against the privacy rights of individuals. 

Commercial and Political consequences of the Data Protection Bill (DPB): 

Data Collection related issues  

• First- Bill will negatively impact the emerging technologies market of India dealing in creation, use, and sale of data that is valued at $1 trillion by 2025.  
• Second- The bill requires digital firms who want to operate in India to obtain permission from users before collecting their data.  
• Third– Bill also declares that users who provide data are, in effect, the owners of their own data and may control its usage or request firms to delete it.  
  • • European internet-users are able to exercise a “right to be forgotten” and have evidence of their online presence removed. 
• Fourth– The bill allows the government to use “critical” or “sensitive” personal data, related to information such as religion, to protect national interest. 

• Fifth– Open-ended access to government could lead to misuse of data. Mr. B N Srikrishna, the chairmen of the drafting committee of the original bill, warned that government-access exemptions risk creating an “Orwellian state”.

Issues related to Establishment of Data Protection Authority (DPA)  

• Bill aims to establish a Data Protection Authority (DPA), which will be charged with managing data collected by the Aadhaar programme. 
  • • Authority will consist of chairperson and six committee members,  
    • Members will be appointed by the central government on the recommendation of a selection committee.
    • Members will be selected from senior civil servants, including the Cabinet Secretary. 
• The government’s power to appoint and remove members at its discretion provides it an ability to influence the independence of agency.
• Unlike similar institutions, such as the Reserve Bank of India or the Securities and Exchange Board, the DPA will not have an independent expert or member of the judiciary on its governing committee.
• The UIDAI, for its part, has a chairperson appointed by the central government and reporting directly to the Centre.

Issues related to government use of data for surveillance

There are instances that suggest, India is acquiring some features of a surveillance state. 

• As stated by the Union Home minister recently, police used facial recognition technology to identify people after the anti-CAA protests and the Delhi riots. 
• There is a high possibility that police was matching the video offstage with the database of Election Commission and e-Vahan, a pan-India database of vehicle registration.

Issue related to safety of data 

There are instances of controversy where government has shown casual approach towards data safety and privacy of its citizens:  

• First, Safety concerns were raised during aadhaar data collection, which stores biometric data in the form of iris and fingerprints which is a violation of right to privacy.  
• Second instance was of Aarogya Setu contact-tracing app which was allegedly not able to protect the data provided by citizens.  

Way Forward 

• The Data Protection Bill is a unique opportunity for India, a country with some 740 million internet users.  It would be a standard setter for privacy of individuals. 
• Inclusive debate needs to take place in the Joint Parliament Committee and then in Parliament to examine the Data Protection Bill and promote transparency.

Synopsis– Uttar Pradesh recently passed an ordinance which criminalizes inter­faith marriages, which is against the exercise of the free will of individual citizens in India. 

Introduction-  

• UP ordinance which criminalizes inter-faith marriages has set an extreme example, being followed by other states like MP.  
• In these states’ other laws on slaughter of cattle, marriage, and religious conversions have been enacted targeted at minorities of the state.  
• In Uttarakhand, a recent divergent view attracted an enquiry over a press release by district social welfare department that highlighted a scheme incentivizing  inter-faith and inter-caste marriages. 

How interfaith marriages were seen in the past  

• First, Nehru’s view– Chaudhary charan singh in 1994, Sends a proposal to Prime Minister Nehru to pass a law that would ensure only those youth who married outside, or were prepared to marry outside, their caste be recruited in gazetted government services. 
• Charan singh believed the intractable issue of caste required drastic measures to start the process of its disintegration.  

• • • But Nehru disagrees with his proposal on account of freedom of choice of individuals to choose their life partner. 

• Second, Kusubh Chandra sen’s view– The very first debate for legal marriage in India dates back to the 1860s, when the colonial State received a petition signed by Keshub Chandra Sen of Brahmo Samaj, to legitimise marriages amongst the members of Brahmo Samaj. The motive was to provide the Samaj the right to freely marry as per their ‘rites of conscience’. 
• Third, Special Marriage Act, 1954– SMA is an Act of the Parliament of India enacted to provide a special form of marriage for the people of India and all Indian nationals in foreign countries, irrespective of the religion or faith followed by either party. 

However, States such as Uttar Pradesh and Madhya Pradesh framing laws that target inter-faith marriage. 

The procedural requirements of the SMA such as the need to give prior notice, and allowance for objections, seem to be undermining its original intent by opening the doors to violent moral policing by vigilante groups. 

What are the issues related to these new laws? 

Interference by the State in an adult’s right to love and marry has a ‘chilling effect’ on freedoms

• First, against personal liberty- These new laws intervene in the citizens’ personal liberty by interfering with the choice of their spouse.  
• Second, Against the Right to Privacy– The level of state interference in a civil union, which is a solemnization of a relationship between two individuals, breaches the basic structure of the Constitution.  
• Third, Hinder the individual’s Right to choose faith– According to Articles 25 to 28, an Indian citizen is guaranteed the freedom to practice any religion of his or her choice. The ordinance is a conflict with these rights as it limits the choice of the religion of a prospective spouse. 
• Lastly, Patriarchal Roots- This shows the law has deep-seated patriarchal roots, wherein women are infantilized, placed under parental and community control, and denied the right to take life decisions, should those decisions not be agreeable to their guardians.

Constitution of India offers high principles for citizens to aspire for. Citizens may not have been lived up to these principles but it was the intent that individual try to achieve those principles by doing better to the society. Laws in questions are doing exact opposite by going against these principles.

Way forward-

Based on the judicial pronouncements it is clear that the Right to marry a person belongs to another faith is a Fundamental Right 

• It is for the court to suo motu strike these laws down if it wants to preserve the basic structure of the constitutional edifice.

Synopsis: After UP, MP has also promulgated an ordinance related to anti-conversion laws. But UP’s anti-conversion law itself is fraught with many challenges.

Prohibition of Unlawful Conversion of Religious Ordinance, 2020:

• Law prohibits conversion from one religion to another by “misrepresentation, force, fraud, undue influence, coercion, allurement or marriage”.
• Marriage will be declared “shunya” (null and void) if the “sole intention” was to “change a girl’s religion”
•  The persons forced the girl to change religious conversion may face jail term of up to 10 years if the girl is minor, a woman from the Scheduled Caste or Scheduled Tribe, if the person involved religious conversion on mass scale. For the rest of the cases, the jail term ranges from 1 to 5 years.
• The law also provides for the way to conversion. The person willing to convert to other religion would have to give it in writing to the District Magistrate at least two months in advance.
• The burden to proof would be on the person who caused the conversion or the person who facilitated it. If any violation is found under this provision, then she/he will face a jail term from 6 months to 3 year
• If any person reconverts to his immediate previous religion, then it shall not be deemed to be a violation of the ordinance.

Read more – What is the term ‘Love Jihad’ or ‘Romeo Jihad’? |ForumIAS Blog

Rationale behind the enactment of anti-conversion laws: 

• Firstly, the threats of forceful conversion: Force not solely embody physical force to convert a person belongs to one faith to a different one however additionally it includes mental force like the “threat of divine displeasure”. For example, assume if a missionary informs a person that only Christians are allowed entry into heaven – a core part of the faith – that could also be construed as “force”. 

• • The Orissa High Court in Yulitha Hyde v. the State of Orissacase upheld this interpretation of “force” (Physical and mental). 

• Secondly, the problem of Inducement or allurement: Odisha’s anti-conversion law mentions allurement or inducement as an offering of any gift or gratification, either in cash or in-kind, and also includes a grant of any benefit, which is pecuniary or otherwise. In Rev. Stanislaus vs State of Madhya Pradesh (1977) case the court upheld this definition. 
• Thirdly, Religious conversion is not a Fundamental Right: Supreme Court in Rev. Stanislaus vs State of Madhya Pradesh (1977) case held that the conversion isn’t a fundamental Right and so could be regulated by the state. Both Odisha and Madhya Pradesh laws were upheld. This act as the legal basis for other such laws created by other States. 
• Fourthly, the aim of all anti-conversion laws enacted by various States are same, such as to constrain the ability of communities and individuals to convert from their own religion to another in the name of protecting those sectors of society—namely women, children, backward castes and untouchables etc. 

Issues with anti-conversion laws

1. The Ordinance route taken by the government for promulgating this law is controversial as the law is not containing any specific urgency for this route.

• • For promulgating an ordinance, 3 conditions must be satisfied
    • State Legislature should not be in session;
    • circumstances should exist for promulgating an ordinance 
    • Circumstances must warrant immediate action.
  • However, disclosing the circumstances and urgency for the same is not mandatory.

2. Police do not require a special law to prevent a fraudulent or coercive inter-faith marriage. It can do so under normal circumstances too as in the case of child marriages.
3. Section 7 authorises the arrest of a person by a police office on receipt of the information that a religious conversion is taking place.
   1. Arrest doesn’t require a magistrate order or warrant.
   2. Information can be a false news as seen in some of the recent cases.
4. In case, a person want to convert but not marry, she/he require to inform a DM 2 month in advance. Then DM requires the police to inquire the real purpose of conversion and file a report.
   1. It leaves the scope of heavy pressure on the person from all around i.e. police and right groups.
5. Section 12 of the article puts the burden of proof that it is not through coercion or fraud, on the person causing conversion through marriage or by any other way.
6. This law through all the above methods is encroaching upon the right to privacy and violates the right to life, liberty and dignity of the consenting adults.
7. These laws promotes patriarchal mind-set, where an adult women is unable to make her own choice in the matters of religion or marriage.

How to deal with the issues?

• Firstly, the need for uniformity, Article 18 of the Universal Declaration on Human Rights mentions everyone has the right to freedom of religion including changing their faith. That is included in the State laws but there is a wide variation in the state laws such as prison terms, burden of proof, the procedure to get converted, etc. Since the conversion falls within the “State list”. Central can frame a model law like Model law on contract farming etc. 
• Secondly, State while enacting anti-conversion laws should also respect their Freedom to get convert and should not put any vague or ambiguous provisions for the person who wanted to convert of his own will. 
• Thirdly, awareness to the people: People also need to be educated about the provisions and ways of Forceful conversions, Inducement or allurement, etc. 

• Fourthly, disclosing circumstances leading to adopting the ordinance route should be made mandatory at both state level and central level.

• Fifthly, according to the USCIRF (United States Commission on International Religious Freedom), some observers note that “anti-conversion laws create a hostile, and on occasion violent, environment for religious minority communities since they do not require any evidences to support such accusations of wrongdoing.  
  • So, the anti-conversion laws also need to include a provision to mention the valid steps for conversion by minority community institutions. 

Way forward: 

Conversion in India is legal but not the conversion made using force/allurement/inducement to convert people. Various Court judgments have made conversion laws a legal one but not the laws which have whimsical/fanciful/arbitrary laws by State. So, there is a clear limit for the State to intervene in the religious conversion, this can be further demarcated by small but significant steps such as model law, enhancing awareness, etc. 

Synopsis– India’s bail system is facing in urgent need of reforms. 

The refusal to grant of bail violates right to liberty of individuals undergoing criminal prosecution by confining them in jails without trial and conviction.  

What is bail? 

The bail is the security given by the defendant, it acts like a surety or guarantee for the defendant to show up in the court at a later date when summoned  

• The surety may be cash, the papers giving title to property, or the bond of private persons of means or of a professional bondsman or bonding company.

What are the concerns regarding granting of bail in India? 

• First, routine rejection of bail by subordinate courts for the simplest of an offence.  

• • • Moreover, the majority of people arrested under excise laws belong to marginalized communities. More than two-thirds of the inmates are undertrials from Dalit, Adivasi and OBC communities, often accused of minor offenses. 

• Second, Pending bail pleas– The Courts should decide regular bail application within a maximum time period of 7 days from filing. Sadly, in practice, it is observed accused languish in jails for months waiting for disposal of his bail application. 

• • • The pendency of bail applications has increased during the pandemic due to the shutting down of courts and the exacerbation of arrests for minor offences by the police. 

• Third, High sureties to secure freedom– The bail amount in session courts, even for petty offences is a minimum of ₹10,000 and ₹30,000 in the case bail before the High Courts and the Supreme Court. 

• This is a form of injustice when a majority of regular wage workers, 57% Indians earn less than ₹10,000 per month.  
• Common citizens without the means or resources to move the High Courts or the Supreme Court were languishing in jails as under–trials. 

• A bogey of middlemen has also emerged due to these high bail amounts. 

Example of absurd bail conditions- 

• CASE – The Gwalior Bench of Madhya Pradesh High Court has granted bail to two accused in a criminal case on the condition that they install a non-China made LED TV screen at the Gwalior District Hospital. 
• The same single-judge bench had directed the petitioners to register themselves with the district magistrate concerned as ‘COVID-19 Warrior’ so that they are assigned suitable work taking all prescribed precautions.  

Grant of bail on the condition to deposit cash relief fund is improper and unjust. 

Way forward 

• The courts while granting/disposing of bail applications ideally should draw a fine balance between the individual liberty and the interest of the society without compromising on either. 

• While granting bail the court must also look at the socio-economic plight of the accused must also have a compassionate attitude towards them. 

Synopsis: Supreme Court in its recent judgement Saurav Yadav versus State of Uttar Pradesh, has cleared the Issue of eligibility of candidates belong to Horizontal reservation to compete for the open category seats.

The issues arise due to the difference in the implementation of horizontal reservation among different states in the open category states.

There are 2 types of reservations; 1) Vertical reservation, 2) Horizontal reservation

Vertical reservation: It is a class of reservation which provide reservation in terms of caste i.e. SC, ST, OBC and General Category.

Horizontal reservation: It is a class of reservations under Article 15(3) and 16(1), which cuts across all the caste based categories including reservation for women, differently-abled persons, freedom fighters, army veterans and other categories.

What are the Horizontal Reservation issues?

Basic issue is the assumption of critics of reservation that reservations per se are opposed to merit and compromise efficiency in public service. Therefore open category seats must be available only to the candidates belong to non-reserved categories.

• Upholding the assumption above, few state governments excluded reserved category women from consideration in the general category.
• This policy in effect declare the open category as a reserved category for upper castes.
• Further, matter was worsened by the contrary judgments of High Courts:
  • Rajasthan, Bombay, Uttarakhand and Gujarat high courts approved the eligibility of horizontal reservation against ‘open or general category’.
  • Allahabad and Madhya Pradesh High Courts held that candidates from reserved categories can be adjusted only against their own categories and not against the ‘open or general category’.
• Reservation is an instrument for identifying merit in individuals from historically marginalised communities. By excluding OBC women against general category seats, government is excluding a meritorious candidates.

Indra sawhney case

• In Indra Sawhney case 1992, Supreme Court held that in case a reservation has been made under Article 16 (4) for the backward class and the candidate belonging to such back ward caste can compete for non-reserved post.
• As such candidates are appointed on the basis of their own merit, their number will not be adjusted against the quota to their backward category i.e. the entire reservation quota will be intact and available in addition to those selected under open competition category.

Saurav Yadav versus State of Uttar Pradesh

• In this case, there were 3,295 constable posts in UP in the General Category (GC) of which 188 went to women.
• 21 applicants in the OBC female category scored more than the last female candidate selected in General Category. But in filling up of 188 GC women seats, OBC women (who scored higher) were not considered.
• Judgment: In this case three judge bench led by Justice Uday U Lalit, ruled against the government order that candidates belonging to reserved categories like SCs, STs, and OBCs can be appointed under open or general category, if they qualified on their own merit.

Justice Ravindra Bhat’s judgment

• Justice Bhat also made a concurring judgment, in a similar case.
• Justice Bhat in his judgment held that there is no rule, or direction which prohibits the adjustment of socially reserved categories of women in the general category or “open category”. Therefore, the open category is not a ‘quota’, but rather available to all women and men alike.

Anil Kumar Gupta v/s State of Uttar Pradesh

• In its judgment, the Court had made it clear that horizontal reservation ought to be generally understood in compartmentalised terms, as a nod to recognition of inequalities within each vertical category.

Vertical and horizontal reservations are methods of ensuring representation in public services. It should not be used as a tool to close the doors to open general category, even for the meritorious candidates, for which she would have been eligible without reservation.

Context – The Sixth Schedule was incorporated to protect the rights of the minority tribals living within a larger state dominated by the majority.

More in news

• Khasi Students’ Union (KSU) an influential students’ body in Meghalaya has put up banners labelling all Bengalis in the state as Bangladeshis.
• It is also spearheading an agitation for an Inner Line Permit (ILP) to regulate outsiders coming into the state.

What is Inner Line Permit? 

• The Inner Line Permit is an official travel document that allows Indian citizens to stay in an area under the ILP system. The document is currently required by visitors to Arunachal Pradesh, Manipur, Nagaland and Mizoram.
• The ILP is issued by the concerned state government .The permits issued are mostly of different kinds, provided separately for tourists, tenants and for other purposes.

What is the Sixth Schedule?

• The Sixth Schedule consists of provisions for the administration of tribal areas in Assam, Meghalaya, Tripura and Mizoram, according to Article 244 of the Indian Constitution.
• Passed by the Constituent Assembly in 1949, it seeks to safeguard the rights of the tribal population through the formation of Autonomous District Councils (ADC).
• The ADCs are like miniature states having specific powers and responsibilities in respect of all the three arms of government: legislature, executive and judiciary.
• The governors of these states are empowered to reorganize boundaries of the tribal areas.

How Sixth Schedule discriminates against the non-tribal resident?

The Sixth Schedule, has faced opposition as it infringes upon the rights of non-tribals and discriminates against them in various ways-

Violating many of the fundamental rights granted to citizens under the Constitution like-

• The right to equality before law (Article 14).
• Right against discrimination on the grounds of caste, race, sex, place of birth or religion (Article 15).
• Right to equality of opportunity in public appointment (Article 16).
• Right to settle anywhere in India (Article 19).

What were the impacts of Sixth Schedule of the Constitution on non-tribal people of Meghalaya?

1. Forces migration– the KSU have driven many non-tribals out of the state,

• The share of population of non-tribals dwindling from 20 per cent in 1972, when the state was carved out of Assam, to 14 per cent in 2011.

2. Nearly no jobs for non-tribal population– The new State also promptly implemented near total reservation of jobs for its tribal population.
3. Non-tribal people were barred from acquiring property in Meghalaya.
4. The state’s abject failure to provide protection to the minority non-tribals or punish those responsible for violence against them.
5. 90 per cent of the Assembly seats (55 out of 60 in Meghalaya) reserved for the tribals.

What is the way forward?

• The Sixth Schedule undermines social harmony, stability and economic development of the state and the region.
• Indeed, it is now the rights of minority non-tribals that need protection.

Context: Supreme Court in its recent order stated that farmers have a constitutional right to continue with their protest.

More about judgment

• Petition: Order was delivered on the petitions seeking removal of farmers protesting at the borders of Delhi.
• Order and suggestions
  • Supreme Court in its order upheld the farmer’s right to continue their protest in a peaceful manner as a constitutional right subject to public order.
  • No restriction will be placed in the exercise of such rights as long as it is non-violent and does not result in damage to the life and properties of other citizens.
  • SC suggested farmers engage in talks with the government for positive conclusion and formation of an “impartial and independent committee” of experts in agriculture to hear both farmers and the Union government on the laws.

A few examples of important peaceful protests in India  

• Power of peaceful protest was taught to the country by the father of the Indian nation, Mahatma Gandhi, against the mighty British Empire.
• People not only signed writ petitions but staged dharnas, held large public meetings, peaceful protests and demonstrations and even, for instance in Gandhi’s satyagraha, launched civil disobedience movements.
• After Independence, many peaceful protests took place, but one of the biggest were protests during an emergency in the 1970s when democracy in India was threatened due to authoritarianism of government.
• Movements such as Chipko movement (1973) in the upper Alaknanda valley took place for forest conservation.
• During the movement of Anna Hazare against corruption, thousands participated in the peaceful protests.

What are the Constitutional provisions ensuring the right to protest?

The right to protest, to publicly challenge and force the government to answer, is a fundamental political right of the people that flows directly from a democratic reading of various provisions of Article 19.

Right to Protest is protected under Article 19(1) (a), Article 19(1) (b) and Article 19(1) (c) of the Indian Constitution.

1. Article 19(1) (a) guarantees the freedom of speech and expression;
2. Article 19(1) (b) assures citizens the right to assemble peaceably and without arms.
3. Article 19(1) (c) assures right to form associations or trade unions

Reasonable restrictions: However, like other fundamental rights, right to protest is also not absolute and also subject to reasonable restrictions mentioned under Article 19(2) and 19(3) on the following grounds;

1. In the interests of the sovereignty & integrity of India,
2. The security of the State,
3. Friendly relations with foreign States,
4. Violation of Public order,
5. Decency or morality or in relation to Contempt of court, defamation or incitement of an offence

The grounds of restrictions based on Violation of public order can be reasonable only when there is evidence that protesters will incite lawless or disorderly acts and that such acts are likely to occur.

Section 144 and right to protest in India

• Time and again, to suppress the voice of citizens or for legitimate reasons like controlling the violent protest, the government has kept on using various tools available against protests and section 144 of Cr.PC has been the biggest such tool.
• Section 144 authorises executive magistrates to pass “prohibitory orders” that restrict people from assembling at particular places to prevent breaches of public order or the triggering of violence.
• Although the law has been enacted to implement the reasonable restrictions, however, Section 144 is framed in such broad and vague terms that it can be imposed by the executive anywhere to prevent the expression of dissent through public demonstrations and protests.
• Judgments
  • In the 2012 Ramlila Maidan case, the court held that the “perception of threat to public peace and tranquillity should be real” for Section 144 to be used. The trigger cannot be “imaginary or a mere likely possibility”.
  • In Mazdoor Kisan Shakti Sangathan v Union of India, the Supreme Court held although recognised the right to protest and asked the government and police to frame guidelines but also held that the order to impose section 144 was not unconstitutional.

Supreme Court Judgements on Right to Protest:

• Ramlila Maidan Incident vs Home Secretary, Union of India (2012): The Supreme Court had stated that citizens have a fundamental right to assembly and peaceful protest which cannot be taken away by an arbitrary executive or legislative action.
• Mazdoor Kisan Shakti Sangathan (MKSS) vs Union of India(2018): In this case, SC upheld the fundamental right to assembly and peaceful protest but ordered it to be regulated in such a way that they do not cause inconvenience to residents from Jantar Mantar road or the offices located there.
• Shaheen Bagh Judgement:
  • The court upheld the right to peaceful protest against a law but made it clear that public ways and public spaces cannot be occupied and that too indefinitely.
  • The right to protest in a public place should be balanced with the right of the general public to move freely without hindrance.
  • Fundamental rights do not live in isolation. The right of the protester has to be balanced with the right of the commuter and has to co-exist in mutual respect.

What is the significance of the right to protest?

• Firstly, Right to protest is an essential element of democracy to bring about reforms and lead to the development of the country.
• Second, Protesting against injustice is not only a constitutional right of the citizens but also their moral duty.
• Third, Active exercise of Right to protest ensures people’s role as watchdogs that constantly monitors government’s acts and ensure fairness in them.
• Fourth, it is the biggest weapon of people when the government in a democratic country becomes unresponsive and refuse to listen to them.

Peaceful protest is a fundamental right and the lifeline of democracy, without which there would be very less accountability left with the ruling government and every citizen has to wait for the election to vent out their anger against it. But reasonable restrictions are also very important so that peaceful protests do not turn into violent and lead to loss of lives and property.

However, it should not be made an excuse to suppress every form of protest as it is the prime duty of every government to protect the ideals of the constitution.

News: The Supreme Court has said that farmers have a constitutional right to continue with their “absolutely perfect” protest as long as their dissent against the three controversial agricultural laws did not slip into violence.

Facts:

• Background: This ruling came by the Supreme Court during the hearing of a batch of petitions seeking removal of protesting farmers from the Delhi borders.
• Verdict: The Supreme Court has stated that it is the fundamental right of the farmers to protest as long as the protest is constitutional and does not destroy property or endanger life.

Additional Facts:

• Right to Protest: The right to protest peacefully is enshrined in the Indian Constitution—Article 19(1)(a) guarantees the freedom of speech and expression; Article 19(1)(b) assures citizens the right to assemble peaceably and without arms.
  • However, these rights are also subject to reasonable restrictions mentioned under Article 19(2).
• Supreme Court Judgements on Right to Protest:
  • Ramlila Maidan Incident vs Home Secretary, Union Of India & Ors. case(2012): The Supreme Court had stated that citizens have a fundamental right to assembly and peaceful protest which cannot be taken away by an arbitrary executive or legislative action.
  • Shaheen Bagh Judgement: The Supreme Court has upheld the right to peaceful protest against the law but made it unequivocally clear that public ways and public spaces cannot be occupied and that too indefinitely.

Context: The Allahabad High Court verdict in ‘Salamat Ansari’ is a reminder of the Constitution’s most cherished values.

What did the court say?

• Religious conversions, even when made solely for the purposes of marriage, constituted a valid exercise of a person’s liberties.
• The High Court ruled that the freedom to live with a person of one’s choice is intrinsic to the fundamental right to life and personal liberty.
• It held that the judgment in Noor Jahan was incorrectly delivered. Marriage is a matter of choice, and every adult woman has a fundamental right to choose her own partner.

What is the issue?

• Legislation: Various State governments undertaking projects to outlaw what they describe pejoratively as “Love Jihad”.
• Petitioners vs. State:
  • The petitioners had approached the High Court seeking orders to quash a First Information Report (FIR). This FIR alleged that crime was committed under Section 366 of the Indian Penal Code, which criminalises the abduction of a woman with an intent to compel her to marry against her will.
  • The State argued that the partnership had no sanctity in the law, because a conversion with a singular aim of getting married was illegitimate.

What are the other related judgements?

• Noor Jahan v. State of U.P. (2014): the High Court had held that a conversion by an individual to Islam was valid only when it was predicated on a “change of heart” and on an “honest conviction” in the tenets of the newly adopted religion.
  • Burden of proof: the High Court had ruled that the burden to prove the validity of a conversion was on the party professing the act.
• Stainislaus v. State of Madhya Pradesh: the Court upheld, on grounds of public order, two of the earliest anti-conversion statutes in India: the Madhya Pradesh Dharma Swatantrya Adhiniyam, 1968, and the Orissa Freedom of Religion Act, 1967. These laws required that a District Magistrate be informed each time a conversion was made and prohibited any conversion that was obtained through fraud or illegal inducement.

What does the judgement signify?

• Right to religious freedom: it is neither the province of the state nor any other individual to interfere with a person’s choice of partner or faith.
• Right to privacy: It held that an individual’s ability to control vital aspects of her life inheres in her right to privacy. Puttaswamy judgement, has recognised that every individual possesses a guaranteed freedom of thought.
• Right to live with dignity: It includes the preservation of decisional autonomy, on matters such as “personal intimacies, the sanctity of family life, marriage, procreation, the home, and sexual orientation”.
• Freedom of conscience: Article 25 of the Constitution expressly protects the choices that individuals make. It guarantees to every person the freedom of conscience. The idea of protecting one’s freedom of conscience goes beyond mere considerations of religious faith.

This is high time that we need to respect people’s choices. When we fail to acknowledge and respect the most intimate and personal choices that people make,we undermine the most basic principles of dignity.

Link to our 7PM editorial of similar article (ISSUE OF INTERFAITH MARRIAGES AND LAWS IN INDIA)

The article is based on The Big Picture: Special Marriage Act and Indian Express Explained, Roll it back appeared in the month of November. 

Context: The Uttar Pradesh government has cleared an ordinance that enables the state to police and punish inter-faith marriages with “the sole intention of changing a girl’s religion”.

Why Uttar Pradesh drafted such an ordinance?

• In the past few months, cases of alleged “love jihad” have been reported from different parts of the state, especially eastern and central UP especially Lakhimpurkheri.
• a group of parents from a particular locality in Kanpur had complained that their daughters are being allegedly trapped by Muslim men
• In some cases, girls refused to accept that they were tempted into marriage.

Criticisms against the law

Many critics of the law have put forward a few issues regarding the law:

• Allowing the police to examine subjective “intentions” of men and women entering a marriage veers into thought control — and sets the law up for rampant abuse.
• Law against fundamental rights: By clearing the ordinance, the state government has trespassed the fundamental right to marry guaranteed under Article 21 of the Constitution. 

 Anti-conversion law at central level:

Central government proposed various bills but none of them passed and became a law. They are:

• Indian Conversion (Regulation and Registration) Bill 1954
• Backward Communities (Religious Protection) Bill 1960
• Freedom of Religion Bill in 1979

In 2015, the Law Ministry said passing of any law on religious conversion is purely a “State subject” and Central government has no role in it.

Is Uttar Pradesh being the only state to initiate law for forceful conversion?

• No, after the central government failed to pass 1960 bill, Odisha government moved on and passed the first anti-conversion law in 1968
• After that so far 10 states have had passed anti-conversion laws in India.
• The Himachal Pradesh Freedom of Religion Act, 2019, and the Uttarakhand Freedom of Religion Act, 2018, both prohibit conversion by misrepresentation, force, fraud, undue influence, inducement, allurement and ‘by marriage’.

But Uttar Pradesh has become one of the first State to pass forcible conversion only during Interfaith marriages as special legislation. States such as Haryana, Madhya Pradesh, and Karnataka have also sought to bring such legislation.

Interfaith Marriages:

• It simply means the matrimonial relation between individuals who follow different religious faiths.
• Marriage between the same faiths has been governed by the Hindu Marriage Act 1955, Muslim personal Law. But to rectify and include interfaith marriages Centre passed the Special Marriage Act 1954.
• Special Marriage Act considers Interfaith Marriages as secular.

 Judicial pronouncement regarding interfaith marriages and forcible conversions:

• The Rev Stanislaus vs Madhya Pradesh case: Supreme Court said Article 25 does provide freedom of religion in matters related to practice, profess and propagate, but the word propagate does not give the right to convert and upheld the laws prohibiting Conversion through force, fraud, or allurement.
• Based on the above case it is clear that forcible conversion or conversion through fraud and allurement is against the Right to Freedom of Religion.
• Sarla Mudgal case: The court had held that the religious conversion into Islam by a person from non-Islamic faith is not valid if the conversion is done for the purpose of polygamy.
• Lily Thomas case: In this case Court observed that marrying another woman after converting to Islam is punishable under the bigamy laws.
• Hadiya Case: Supreme Court said that the right to marry a person of one’s choice is integral to Article 21 (right to life and liberty) of the Constitution
• Allahabad High Court, in the case, Noor Jahan Begum @ Anjali Mishra and another vs. State of U.P. and Others observed that one shouldn’t change one’s faith just for the sake of matrimony. As two persons professing different religions can marry under the Special Marriage Act.
• But in the most recent judgment, Allahabad High Court itself overturned its previous judgment, calling the decision “bad in law”. The division bench of the Allahabad high court said on November 11, that judgment does not take into account the right to life and personal liberty of mature adults.

Way forward:

Based on the judicial pronouncements it is clear that the Right to marry a person belongs to another faith is a Fundamental Right but that does not have to be associated only with personal laws or religious conversions. It is the Right of the individual’s personal liberty to involve in Interfaith Marriage either by the Special Marriage Act of 1954 or by Personal laws (after getting himself converted).

News: The Supreme Court has pronounced its reasons for granting interim bail to Republic TV editor-in-chief Arnab Goswami in connection with the abetment of suicide case against him.

Facts:

Key Takeaways from the Judgement:

• Protect Personal Liberty: The Supreme Court called on judges to protect personal liberty and the right of ordinary people to bail saying liberty is not a gift for the few and deprivation of liberty even for a single day is one day too many.
• Importance of Bail: The apex court invoked the case of State of Rajasthan, Jaipur v Balchand and referred to Justice Krishna Iyer’s statement that “basic rule of our criminal justice system is bail,not jail”.
• Courts as first line of Defence: The Courts must ensure that they continue to remain the first line of defence when citizens liberty is deprived.But in reality, undertrials remained behind bars while their bail applications were lobbed from one rung of courts to another.
• Pending Bail Pleas: The court highlighted that 91,568 bail pleas were pending in High Courts, while 1.96 lakh bail applications continued to wait for a hearing in the district courts.Hence, it urged the judges in charge of these courts to utilise tools at their disposal to address this pendency.
• Importance of District Courts: The district courts are only subordinate in hierarchy.It is less to none when it comes to saving the lives of citizens or doing justice for them.Hence, the district judiciary must be alive to the situation as it prevails on the ground – in the jails and police stations where human dignity has no protector.

Context: The Uttar Pradesh government has cleared an ordinance that enables the state to police and punish inter-faith marriages with “the sole intention of changing a girl’s religion”.

Discuss the issues associated with the law against love jihad.

• Law against fundamental rights: By clearing the ordinance, the state government has trespassed the fundamental right to marry guaranteed under Article 21 of the Constitution.
• Problem with this law: Neither clan council nor khap panchayat, and certainly not a democratic government, has the licence to vet personal choices as right or wrong.
• “Love jihad” ordinance is being peddled as measures taken for the security and “respect” of women.
• Law can be abused: Allowing the police to examine subjective “intentions” of men and women entering a marriage sets the law up for widespread abuse.
• It legitimises a rank communal fantasy: It continues the pessimistic politics that seeks to organise Hindu unity by fuelling the anxieties about the ‘Muslim Other’ and treasures it in law.
• Patriarchal fear: The law’s scrutiny is specially focussed on a woman’s change of faith reveals the patriarchal fear behind it.
• An attempt to police women’s lives: The pretentiousness of protection, indeed, masks a fear of female sexuality that will not be contained by caste and clan barriers.
• It is used to police women’s lives and choices, often by violence, as is evident in the history of “honour killings”.

Way forward

• The government must withdraw the proposed law as in the eyes of law men and women are not only members of religions, but individuals with “free will and choice”.

Context: The Chief Justice of India is reported to have stated during the hearing of journalist Siddique Kappan’s bail matter, that the Court was trying to “discourage” recourse to Article 32.

What does article 32 says?

• The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
• CJI M Hidayatullah in Tilokchand (1970) said that what Article 32 does is to keep open “the doors of this court” and requires the state not to put any hindrance to a person seeking to approach the Court.

What are exceptions to the article 32?

• The Court regards Article 32 as a judicial power subject to the fundamental principles of administration of justice.
• It does not mean that the Court must ignore and trample under foot all laws of procedure, evidence, limitation, res judicata and the like.
• Justice MP Thakkar and Kanubhai Brahmbhatt observed that time for imposing self-discipline has already come, even if it involves shedding of some amount of institutional ego and to inspire confidence in the litigants that justice will be meted out to them.
• Even if there is a constitutional right to remedies it remains subject to the discipline of judicial power and process.
• Article 33 clearly says that the right will not extend to the members of armed forces.
• Justice Patnaik maintains that the article 33 and 34 will not eclipse the right of a person detained without the authority of law to move for habeas corpus.

How the new facets of article 32 evolved?

• In 1950, it has ruled that powers under Article 32 are not limited to the exercise of prerogative writs.
• In 1987 the Court ruled that it has powers to rule for compensation of violation of fundamental rights.
• In 1999 it said that this power extended to the rectification of its own mistakes or errors.
• The Court has also upheld (in 1997) the 50th amendment enlarging the scope of this article against a challenge of the basic structure of the Constitution.

What are the issues have been raised?

• CJI or the Court as a whole should not suffer from epistemic collapse so as to receive sharp reminders and rebukes from citizen commentators.
• Article 32 does not merely confer wide powers on the Court but also the judicial duty to provide constitutional remedies.
• Lawyers and justices know what distinguishes Article 32 from Article 226 is the very dimension of it. HCs have the discretion to act or not to.
• Article 32 is not absolute. The Supreme Court decides on what “appropriate proceedings” should be for it to be so moved.
• Discrimination in bail where one case is fast tracked whereas others are consigned to slow moving judicial action.
• Scandalous judicial delays and a bold resolution of “who watches the watchman” syndrome demand urgent response.

Article 32 makes the apex court into a “people’s court” and in future we should be able to conclude that the Court did not deliberately dealt deathblows to the “soul” of the Constitution.

Context – The Kerala cabinet recommended to the Governor the promulgation of the ordinance to insert Section 118 (A) into the Act.

What is Kerala’s new 118A law?

The new Section 118A has been introduced in the Kerala Police Act, 2011.

According to the new law– The state government recommendation to amend the police act says that if the government finds any media platform including social media producing, publishing or propagating content that could threaten, insult or harm an individual

• The amendment proposes three years in prison and a fine of up to ₹ 10,000 for those found guilty.
• The state officials said this would give law enforcers more teeth to prosecute the guilty, media houses said the law could be used to gag them.

Why the law being criticized?

1. The threat to free speech– It is being seen as an attempt to stifle not only dissent but also freedom of speech and expression.

• In 2015, the Supreme Court in the  Shreya Singhal case had struck down Section 66A of the Information Technology Act and Section 118D of the Kerala Police Act, finding both provisions unconstitutionally vague and thus violative of free speech rights. [Article 19].

2. Vulnerable to misuse– The law is unspecific and indistinct and can be indiscriminately misused by individuals or even the government and the police.
3. Granted the police untrammelled authority– It empowers police to suo motu interpret and deal with “offensive” communication and make arrests without a warrant.
4. Though the Kerala government claims it is to fight cyber-crimes against women, that has not found any mention in the law either.

What is the way forward?

The amendment would reverse the course of media freedom, muzzle free speech and undermine civil liberties.

• The greatest danger of such legislation is that if the Ordinance is not withdrawn by the Kerala government, it will act as an example to other states to frame similar laws of their own.

Context: The Supreme Court’s has questioned the Union government on the measures it can and is willing to take against communally slanted television coverage.

More on news:

• It appears to be an attempt to bring about a commitment to a course of action that will curb inflammatory journalism on broadcast media.
• The Court has distinguished between free speech and ‘hate speech’.

Give some latest instances of partial news coverage. Also, mention the point-of-view of the Centre and the Court.

• Coverage of Tablighi jamaat event: The Court is hearing petitions against the communal colour given by some channels to the incidence of large clusters of COVID-19 infections among those who attended a Tablighi Jamaat event in New Delhi.
• The portrayal of the participants as intentional super-spreaders was vicious and motivated.
• Case of Sudarshan news: The case of Sudarshan News, which began a series on the channel that propagated hate against Muslims, is an open example.
• The government has merely administered a ‘caution’ to the channel and asked it to moderate the content of future episodes.
• Centre’s point of view: The Centre’s affidavit has stated that media coverage “predominantly struck a balanced and neutral perspective”.
  • It further stated that it was open to the viewers to choose from a number of varying perspectives given by different media channels.
• Court’s point of view: The Court is keen to know what action has been taken under the Cable Television Networks (Regulation) Act against offending broadcasters.
• The Court appears unconvinced that the present mechanism of self-regulation, i.e. The National Broadcasting Standards Authority is effective.

What are the safeguards provided under the Cable Television Networks (Regulation) Act?

• Government’s powers: The government is empowered under the Act to prohibit transmission of programmes that violate the programme or advertising codes (Section 19) and even an entire channel, in public interest (Section 20).
• In the past, channels have been asked by the I&B Ministry to take some programmes off the air.
• Penal law: Depending on the damage done to individuals or institutions, or even society at large, there is enough scope for action under the penal law.

Way forward

• The distinction between free speech and hate speech should be at the heart of any order creating a new mechanism; to deal with broadcast media excesses.

what is the Issue of application of Article 32

Dr B.R. Ambedkar had once said,

‘If I was asked to name any particular article in this Constitution as the most important – an article without which this Constitution would be a nullity, I could not refer to any other article except this one (Article 32). It is the very soul of the Constitution and the very heart of it.’

News: Recently a Supreme Court Bench headed by Chief Justice of India S. A. Bobde observed that it is “trying to discourage” individuals from filing petitions under Article 32 of the Constitution.

What was the case?

• Kerala-based Siddique Kappan was arrested on 5 October when he was on his way to Hathras to report on the alleged gang rape and murder of a 20-year-old Dalit woman.
• Initially, he along with 3 others was arrested under Section 151 of the Code of Criminal Procedure (CrPC), later he was booked on charges of sedition and sections of the Unlawful Activities Prevention Act (UAPA).
• A habeas corpus petition seeking release of Kerala-based Siddique Kappan was filed in the Supreme Court.
• However, it is not the sole case that has met the same fate, in an another case, Article 32 petition filed on behalf of Nagpur resident Sameet Thakkar (arrested for allegedly making objectionable comments against Maharashtra CM) was also declined.

What is the issue all about?

• As per Faizan Mustafa, vice chancellor of the NALSAR University, ideally, cases must first go to the high court. However, SC should also be consistent in the matters, then only the desired results can be achieved.

Decisions in the similar cases

• In a recent matter, the Bench of CJI Bobde, Justice A S Bopanna and Justice V Ramasubramanian had issued a contempt noticeto the Assistant Secretary of the Maharashtra Assembly who, in a letter to Republic TV editor-in-chief Arnab Goswami, had questioned him for approaching the top court against the breach-of-privilege notice.
• The court had then said that the right to approach the Supreme Court under Article 32 is itself a fundamental right and that

“there is no doubt that if a citizen of India is deterred in any case from approaching this Court in exercise of his right under Article 32 of the Constitution of India, it would amount to a serious and direct interference in the administration of justice in the country”.

• Even as the Supreme Court underlines the powers of the high courts, it has in the past transferred cases to itself from the high courts.

Transfer of Cases

• Even though SC underlines the powers of the high courts, there are past examples of transferring cases Suo Moto, to itself from the high courts.
• Most recently, the Supreme Court transferred the case involving land use for the national capital’s Central Vista project to itself from the Delhi High Court.
• In 2018, the SC had transferred the case seeking probe into the death of judge B H Loya from the Bombay High Court to itself.
• When such transfers take place petitioners lose a stage of appeal that would otherwise have been available had the High Court heard and decided the case.

Fundamental rights under article 32

• Article 32 of the constitution is a Fundamental Right that  falls under Part III of the Constitution that includes the fundamental rights of individuals.
• It provides individuals, seeking enforcement of other fundamental rights recognized by the Constitution, the right to approach the Supreme Court directly.
• Under Article 32 the Supreme Court have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari.
• The right guaranteed by this Article ‘shall not be suspended except as otherwise provided for by this Constitution’.
  • Under Article 226 of the Constitution, similar powers have been conferred on high courts, to enforce the fundamental rights of citizens. However, article 226 is not a fundamental right like Article 32.
  • The two provisions are not mutually exclusive and allow a citizen to either approach the high court that has jurisdiction over the case or the Supreme Court.
  • However, scope of Article 226 is wider than that of Article 32, as it covers issues other than fundamental rights as well.
• Both the High Courts and the Supreme Court can be approached for violation or enactment of fundamental rights through five kinds of writs:

1. Habeas corpus: It is issued against the illegal detentions and wrongful arrests to ensure personal liberty and considered as one of the most important writs for personal liberty.
2. Mandamus:It is issued against public officials, governments, courts to perform a statutory duty
3. Certiorari:Issued for re-examination of an order or decision by judicial, quasi-judicial or administrative authorities.
4. Prohibition: Issued for directing judicial or quasi-judicial authorities to stop from going ahead with certain proceedings to ensure that it does not exceed its jurisdiction.
5. Quo warranto:It is issued to prevent people from assuming positions in public office when she or he is not entitled to it.

Previous judgments related to article 32

• In Romesh Thappar vs State of Madras (1950), the Supreme Court observed that Article 32 provides a “guaranteed” remedy for the enforcement of fundamental rights. “This Court is thus constituted the protector and guarantor of fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights,” the court observed.
• In Additional District Magistrate, Jabalpur vs S S Shukla (1976), During the Emergency, the Supreme Court had ruled that the right to constitutional remedies under Article 32 would remain suspended during a national emergency.
• 44^th Constitutional amendment provided that president could issue orders suspending the right to move any court for the enforcement of fundamental rights, under Article 32, during a national emergency, with the exception of Article 20 and 21.

Conclusion

Constitutional experts say that it is eventually at the discretion of the Supreme Court and each individual judge to decide whether an intervention is warranted in a case, which could also be heard by the High Court first. There is need to bring in more clarity by judiciary on the matter of article 32 so that people do not lose their hope in the justice system as the ultimate remedy for the violation of their rights.

Context: Many state governments have announced that they are considering enacting an appropriate law to stop marriages which they term as “love jihad”.

What are the recent cases?

• A Muslim girl by birth converted to the Hindu religion and just after a month, she married a Hindu man according to Hindu rites and rituals.
• The Allahabad court directed the girl to appear before a magistrate to record her statements.
• The purpose was to check whether the girl converted with her consent or not.
• In another matter, a Hindu girl by birth converted to Islam and married a Muslim. The High Court recorded her statement and after its subjective satisfaction that she, being a major, had acted of her own volition.

What was the basis of observations?

• Lily Thomas (2000) and Sarla Mudgal (1995): In both the cases, the issue was of Hindu married men committing bigamy to avail a second marriage, without dissolving the first just by converting from Hinduism to Islam.
• Section 494 and second marriage: Both judgments concluded that the second marriage of a Hindu husband, after his conversion to Islam, would not be valid in view of Section 494 of the Indian Penal Code. The Court clarified that a marriage solemnised as a Hindu marriage cannot be terminated by one spouse converting to another religion.

What are the arguments against such laws?

• No legal basis: The concept of “love jihad” has no legal or constitutional basis, it has been concocted for the last few years.
• Fundamental right: The right to marry a person of one’s choice is a guarantee under Article 21. At the same time, freedom of conscience, the practice and propagation of a religion of one’s choice, including not following any religion, are guaranteed under Article 25.
• Avoid mixing of issues: Polygamy, polyandry, kidnapping, coercion, etc. are separate issues covered under existing provisions of the IPC.
• Fundamental freedoms: The right to marry a person of one’s choice flows from the freedom of individuality, naturally available to any individual.
• Supreme court views: The view of the Supreme Court (1965) that a marriage is not approved unless the essential ceremonies required for its solemnisation are proved to have been performed can only be read if one partner denies the marriage.
• Marriage is the very foundation of civilised society: the observation that “marriage is the very foundation of civilised society” and without which no civilised society can exist have become obsolete given the recent judgments by larger benches of the Supreme Court.
• Sub-judice: The legality of legislation like the Citizenship Amendment Act, which excludes only one religion from its purview, criminalisation of pronouncements of triple talaq and taking away the special status of Jammu & Kashmir are pending consideration in the Supreme Court.

The Courts needs to examine if the individual concerned has exercised their right of “free consent”.

What is Custodial Violence?

• Custodial violence primarily refers to violence in police custody and judicial custody. It may be mental or physical in nature.

• Rape and torture are the two common manifestations of custodial violence which may turn out to be fatal and cause death.

State of custodial violence in India:

• According to the data published by The National Crime Records Bureau (NCRB), between 2001 and 2018, a total of 1,727 persons have died in police custody including those in judicial remand and those who have been arrested but not yet produced before the court.
• 75% of the people who died in police custody were tortured.
• Low conviction rate: Apart from custodial deaths, more than 2,000 human rights violation cases were also recorded against the police between 2000 and 2018. And only 344 policemen were convicted in those cases.

Challenges in curbing custodial violence

• Absence of strong legislation: India is yet to criminalize custodial violence. The available safeguards have proved insufficient to deal with issues of custodial violence.

State of prisons:

• There is a lack of facilities for medical, sanitation, security, and food in the prison.
• Further, a disproportionate ratio between crime rate and manpower makes the enforcement of laws difficult.
• India has failed to bring adequate prison reforms to curb the existence of police subculture and punitive violence.

Non-ratification of UN Convention against torture:

• The United Nations convention against torture in 1997 was signed by India but the country did not ratify it.
• While signing only indicates the country’s intention to meet the obligations set out in the treaty, Ratification, on the other hand, entails bringing in-laws and mechanisms to fulfill the commitments.
• Politicization of police: The Police Act, 1861 which governs the Indian police system has no explicit provisions on the superintendence and general control and directions of police. This leaves the executive with a lot of power to control the law enforcement authorities as per vested interests.

• Provisions available to deal with custodial violence. Lack of police accountability: The Prakash Singh guidelines of 2006 had recommended the constitution of an independent complaints authority to inquire into police misconduct. However, this has not been implemented by many states.

Poor witness protection regime:

• Investigations related to custodial killings often run into delays due to a lack of witnesses.
• The lack of strength in the institutional system to protect the witnesses result in the intimidation of the families of witnesses and thus, they turn hostile.
• Though a witness protection bill was introduced in 2015, it’s yet to get a place in the statute books.

Constitutional safeguards:

• Article 20: Right to protection against the conviction of offenses.
• Article 21: Right to life and liberty.
• Article 22: Right to protection against arrest and detention in certain circumstances:
  • Being informed of the grounds of arrest.
  • To be defended by a legal practitioner of his choice.
  • Production in the nearest magistrate within 24 hours of the arrest.

Statutory safeguards :

• Indian evidence act, 1872: Section 25 mentions that a confession to a police officer cannot be proved as against a person accused of any offense.
• Code of criminal procedure, 1973 (amendment in 2008): Section 46 and 49 of the code protect those under custody, from torture, who are not accused of an offense punishable with death or life imprisonment.
• Indian police act, 1861: Section 7 and 29 of the Act provide for dismissal, penalty, or suspension of police officers who are negligent in the discharge of their duties or unfit to perform the same.
• Indian penal code: Section 330, 331, and 348 were enacted to curb the tendency of policemen to resort to torture to extract confessions.
• Judicial Pronouncements regarding custodial violence
• K. Basu v. State of West Bengal, 1987: Under this case, the Supreme Court of India observed that using torture is impermissible and offensive to Article 21.
• Munshi Singh Gautam and others vs the State of Madhya Pradesh: The Supreme Court ruled that the dehumanizing torture, assault in alarming proportions raise serious questions about the credibility of the rule of law and administration of the criminal justice system.
• Rama Murthy v. State of Karnataka (1996): The SC while upholding fundamental rights of prisoners identified ‘Torture and ill-treatment’ in prisons as an area that needs reform.
• Nilabati Behera v. State of Orissa: It ensured that the state could no longer escape liability in public law and had to be compelled to pay compensation.

Way forward

• Death due to custodial violence is a heinous act. India, being a flourishing democracy can undertake the following measures to address the issue:
• Dk Basu guidelines: Implementing the 11-point guidelines mentioned in the DK Basu case by the Supreme Court.
• Implementation of Law Commission of India’s 273rd Report: The report recommends that those accused of committing custodial torture – be it policemen, military and paramilitary personnel – should be criminally prosecuted instead of facing mere administrative action establishing an effective deterrent.
• Implementing Prison reforms: Prison reforms are required for ensuring humane conditions and security for the people in custody.
• CCTV cameras should be installed in police stations and in interrogation rooms.
• Introduction of a monetary body to keep an eye on the activities in the prison.

Police reforms:

• The adoption of an effective mechanism for police will enable police supervisory structures to reduce torture.
• Police reforms to include ethical policing.
• Implementing the recommendations of the Prakash Singh guidelines in letter and spirit.
• The need for the hour is that the government should ratify the United Nations Convention against Torture, which was also recommended by the Law Commission in its 273rd report.

Context- Issues and Challenges of same sex marriages in India.

What is Solicitor General Verdict on same sex marriage?

Same-sex marriages are neither a part of “our culture” nor a part of the law, Solicitor General Tushar Mehta told the Delhi High Court Monday, opposing a petition demanding marriage rights for the gay community under the Hindu Marriage Act 1955.

What is the history of same sex marriage in India?

Same-sex marriages are not a new phenomenon in India.

• Hindu scriptures define marriage as the union of ‘two souls’ and the same scriptures also define that a soul has no gender. It is only the human bodies that possess a gender.
• These scriptures are a major source of Hindu Law including the Act. The Act merely codifies the Hindu law and doesn’t try to erode the values imbibed within the Holy Scriptures.
• The 11th-century Sanskrit text, the Kathasaritsagara, provides the same explanation for cross-class and cross-caste couples who want to marry.

What are difficulties faces by LGBT [lesbian, gay, bisexual and transgender] community?

1. Legal recognition- Same-sex marriages are not legally recognized in India.

• For example- Recently, a PIL was filed in the High Court of Delhi seeking declaration to the marriage rights of the gay community under the Hindu Marriage Act, 1955.
• The petitioner avers that the Act allows marriages between “two Hindus” without any discrimination between heterosexual and homosexual couples.
• But still, gay couples can’t get married and register the same under the Act.

2. Deprived in Rights – The rights enjoyed by opposite-sex couples are not enjoyed by same-sex couples. They are prohibited from those rights. For example-

• The lack of a legal structure around their relationship became increasingly stark when they tried to bring each other on as nominees in insurance and financial plans, just as a married couples did.
• Most male-female married couples take for granted that the day after they marry, they can open a joint account, make health and funeral-related decisions for each other, and inherit each other’s property.

3. Families violently separated the same sex couples, often driving them to suicide.
4. Racial Discrimination– Additionally, lesbian, gay, bisexual and transgender people suffer from social and economic inequalities due to continuous discrimination.

Way forward-

• Countries around the world have legalized same-sex marriages. The world is heading towards progressive LGBTQ rights. Therefore, it is time to join the many democracies which recognize the right of a citizen to marry anyone she chooses.

What is Freedom of press?

• In India, freedom of the press has been treated as part of the freedom of speech and expression guaranteed by Article 19(1) (a) of the Constitution.
• The Indian constitution guarantees the “freedom of speech and expression” as a fundamental right of every citizen of India.

Restrictions on the freedom of press:

• The restrictions that apply to the “freedom of speech and expression” also apply to the “freedom of press and media”.
• Article 19(2),provides reasonable restrictions on the following grounds:
• In the interest of the sovereignty and integrity of India.
• Security of the state, public order, decency, or morality, or in relation to contempt of courts, defamation,
• Freedom of press is not absolute in India.

Why is freedom of press necessary?

• It acts as a check on Government and Administrators.
• The duty of a free press is to raise voice against any social ill or wrong.
• It works towards strengthening the sovereignty and integrity of a nation.
• It helps in building an environment where the people of the country can cultivate unity and harmony.
• A free press is fundamental to a democratic society
• The press provides the platform for a multiplicity of voices to be heard.
• At national, regional and local level, it is the public’s watchdog, activist and guardian as well as educator, entertainer and contemporary chronicler.
• It is helpful in strengthening democracy.
• In India, the media have played a key role in providing information to the people about social and economic evils.

Supreme Court verdicts on the freedom of speech

• In Romesh Thapar v. State of Madras, the Supreme Court acknowledged, “Freedom of speech and of the press lay at the foundation of all democratic organisations”.
• InIndian Express Newspapers v. Union of India, the Supreme Court emphasized the importance of freedom of the press in these words:
  • The expression freedom of the press has not been used in Article 19 but it is understood within Article 19(1)(a). The expression means freedom from interference from authority, which would have the effect of interference with the content and circulation of newspapers. There cannot be any interference with that freedom in the name of public interest.
• In Tata Press Ltd. V. Mahanagar Telephone Nigam Ltd. the Supreme Court held that a commercial advertisement or commercial speech was also a part of the freedom of speech and expression.
• In India, freedom of the press has been treated as part of the freedom of speech and expression guaranteed under the constitution in Brij Bhushan and Another vs the State of Delhi, AIR 1950 and Sakal papers(P) Ltd vs Union of India, AIR 1962.

What is the News?

The Union Education Minister has chaired the 54th meeting of the IIT Council. The council discussed the implementation of the New Education Policy (NEP) 2020.

About IIT Council:

• Headed by: The IIT Council is headed by the Union Education Minister. It also includes the directors of all IITs and the chairman of each IIT’s Board of Governors.
• Purpose: IIT Council advises on admission standards, duration of courses, degrees, and other academic distinctions. It also lays down policy regarding cadre, methods of recruitment, and conditions of service of employees.

Key Recommendations by IIT Council:

It has set up 4 committees to look into the issue of greater autonomy for the IITs, as recommended by NEP, 2020. Moreover, these committees will look into the issues like reform of the academic Senate, grooming faculty to head the IITs, and innovative funding mechanisms.

• Reducing staff strength: It has recommended a reduction in staff strength of IITs, especially non-teaching manpower. It is due to the increasing digitization and outsourcing.
  • Currently, IITs have one faculty member for every 10 students. Whereas, for every 10 faculty, there are 11 staff members.
• IIT R&D Fair: The council has suggested arranging an Online IIT Research and Development (R&D) fair. It will showcase the quality research work of IITs to the industry.
• Mobility of Faculty: The IITs should develop an Institute Development Plan to improve the mobility of faculty between institution and industry.
• One IIT – One Thrust Area approach: IITs were urged to adopt ‘One IIT – One Thrust Area’ approach based on local needs.

Source: The Hindu

What is the News?

The Centre has reconstituted the governing council of the NITI Aayog to include the Union Territory of Ladakh for the first time.

About Niti Aayog:

• National Institution for Transforming India also called NITI Aayog was formed through cabinet resolution in 2015. It had replaced the erstwhile Planning Commission.
• NITI Aayog is the premier policy ‘Think Tank’ of the Government of India. It provides both directional and policy inputs.

Click Here to Read about Functions of Niti Aayog

 NITI Aayog’s Governing Council:

• It is the premier body tasked with a shared vision of national development priorities, sectors and strategies with the active involvement of States.
• The governing council presents a platform to discuss inter-sectoral, inter-departmental and federal issues.
• Chairperson: Prime Minister.
• Full-Time Members: The full-time members to the council are Chief ministers of all states and of the Union Territories of Jammu and Kashmir, Delhi and Puducherry
• Special Invitees: The Lieutenant Governors of Andaman and Nicobar Islands, Ladakh, and the administrators of Chandigarh, Dadra and Nagar Haveli, Daman and Diu and Lakshadweep are the special invitees of the governing council.

Source: TOI

 Read also:-

Extra Constitutional Bodies

Synopsis: The recent 15^th FC report recommendations criticised on the basis of two grounds. One, the recommendations will impact co-operative federalism. Two, the recommendations are not aligned with the changing federal structure in India.

Background

• Recently, the 15^th Finance commission (FC) report tabled in the parliament. It’s following key recommendations accepted by the government.
  1. The Commission has recommended a total devolution of Rs 8,55,176 crore to the states, which is 41% of the divisible pool of taxes.
  2. It also recommended for revenue deficit grants of Rs 1.18 lakh crore to the states.
  3. Furthermore, It recommended a non-lapsable defence fund. The grants component of the states has been reduced by 1 per cent (from 42% to 41%). It will be used to set up special funds for defence.
• The FC’s recommendation for the vertical devolution at 41% is pragmatic. However, some of its recommendations will have an implication on the co-operative federalism.

What are the issues in the 15^th FC recommendations?

• First, the 1% cut in the devolution is for special funding on defence. It means states are paying Rs 7,000 crore for defence and internal security. But, Defence and National Security are the centre’s responsibility as per the 7th Schedule of the Constitution. This use of funds from states to finance the Centre’s expenditure is against the spirit of cooperative federalism.
• Second, the issues in the horizontal distribution of funds. Successive finance commissions have used the criteria of need, equity for devolving 92.5 per cent of funds to a state. Whereas 15^th FC has reduced this to 75%. And the remaining 25% will be based on efficiency and performance. This is the lowest weightage for equity, making the 15th FC transfers the least progressive.
• Third, 15^th FC recommendations do not depict the changed fiscal conditions. For example, after GST, the tax collection method has changed from a production-based tax system to a consumption-based tax system.
  • This structural change has a significant impact on the interstate distribution of tax.  It is not taken into account by the 15^th FC report.
• Fourth, the approach for distributing revenue deficit grants is not changed. The 15^th FC could have recommended a minimum-guaranteed revenue of 14 per cent to every state.
  • This unchanged policy approach has resulted in an increase of statutory and non-statutory grants to almost 55 per cent of the total transfers. Whereas the aggregate transfers have dropped to 45 per cent. This makes the devolution process more discretionary.

Source: The Hindu

Gs2: Statutory, Regulatory and various Quasi-judicial Bodies.

Synopsis: Governments’ actions against journalists have raised suspicion. Specialised agencies are being used to curb dissent.

Background

• Recently, the Enforcement Directorate raided the office of independent digital news platform News Click.
• The ED is investigating the involvement of the digital news platform in the alleged money-laundering of ₹30 crores.
• It is unclear that News Click in any way is related to the alleged money laundering.
• However, critics alleged that this operation is in response to the in-depth coverage of ongoing farmer protests and country-wide protests against the CAA, earlier.
• Organizations representing the media have raised their concerns over this action.

Why the ED’s raid has raised suspicion?

The following arguments will explain the reason for rising suspicion on government actions.

• In many instances, the government has used central agencies such as the CBI, ED, IT, and even the NIA to attack its critics. For example, Journalists who are reporting on farmer protests are facing repressive action.
• It is also a fault on specialized agencies to be politically involved. It is against the principles of non-partisanship.
• Laws that are used against critics on a regular basis, should be used in extreme offenses that too as a last resort. For example,
  • Law of Sedition, Unlawful Activities (Prevention) Act based on the allegation of anti-national activity, Promotion of social enmity or outraging religious sentiments laws.
• Some relief has been provided from the Supreme Court in the past. However, it is also cannot happen in every case.

A responsible and responsive government should be open to the voices of critics. Indeed, dissent is an essential part of Democracy.

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.

Why in News?
The Supreme Court has issued notice to the Centre on a PIL. It is to declare the Law Commission of India as a “statutory body”. And also, to appoint a chairperson and members for the body within a month.

About Law Commission of India

• Status: It is a non-statutory body. The government of India constitutes it, from time to time.
• The commission is established for a fixed tenure.  It works as an advisory body to the Ministry of Law and Justice.
• Functions:
  • It identifies obsolete laws. The laws which are no longer relevant, not in harmony with the existing climate and laws which require change.
  • It suggests suitable measures for quick redressal of citizens’ grievances in the field of law.
  • It enables poors, to take benefit out of the legal process.
  • Likewise, it examines the laws for promoting gender equality.
• However, The recommendations of the commission are not binding on the government. They are recommendations only. The government or concerned department may accept or reject these recommendations.

Establishment of Law Commission

• The first Law Commission was established during the British Raj era in 1834. It was established by the Charter Act of 1833 and was chaired by Lord Macaulay.
• In 1955, the first Law Commission of independent India was established for a three-year term. Since then, twenty-one more Commissions have been established.
• In 2015, The 21st Law Commission of India was established. Its tenure was up to 31st August 2018. In 2020, the Union Cabinet approved the creation of the 22nd Law Commission.

Source: Indian Express

News: The National Internet Exchange of India (NIXI) has announced that it will offer a free IDN (Internationalized Domain Name) in any of their preferred 22 official Indian languages along with every IN domain booked by the registrar.

Facts:

• NIXI: It is a not for profit Organization established under section 8 of the Companies Act 2013 in 2003.
• Purpose: It was set up for peering of ISPs among themselves for the purpose of routing the domestic traffic within the country, instead of taking it all the way to US/Abroad thereby resulting in better quality of service (reduced latency) and reduced bandwidth charges.
• Objectives:
  • To promote the Internet.
  • To set up, when needed, in select location(s)/parts/regions of India Internet Exchanges/Peering Points.
  • To enable effective and efficient routing, peering, transit and exchange of the Internet traffic within India.
  • To continuously work for enhancing and improving the quality of Internet and Broadband services.
  • Set up. Internet Domain Name Operations and related activities.
• Managed by: NIXI is managed and operated on a Neutral basis, in line with the best practices for such initiatives globally.
• India’s Country Code: “.IN” is India’s Country Code Top Level domain (ccTLD).The Govt. of India delegated the operations of INRegistry to NIXI in 2004.

Article Source

News: Union Minister for Consumer Affairs has attended the 74th foundation day celebration of the Bureau of Indian Standards(BIS).

Facts:

Initiative launched during the event:

• Toy Testing facilities: Government has recently brought “Toys” under mandatory BIS certification. Hence, the test facilities will act as an enabler for about 5000 industrial units including micro & small ones for implementing the standards.

Bureau of Indian Standards(BIS):

• BIS: It came into existence in 1986 under BIS Act,1986 and was established as the National Standard Body of India under the BIS Act 2016.
  • The organisation was formerly the Indian Standards Institution (ISI) set up under the Department of Industries and Supplies and was registered under the Societies Registration Act, 1860.
• Nodal Ministry: Ministry of Consumer Affairs, Food & Public Distribution.
• Mandate: BIS has been providing traceability and tangibility benefits to the national economy in a number of ways: providing safe reliable quality goods; minimizing health hazards to consumers; promoting exports and control over proliferation of varieties through standardization, certification and testing.
• Governing Council: The Bureau is a Body Corporate consisting of 25 members representing both Central and State governments, Members of Parliament, industry, scientific and research institutions, consumer organizations and professional bodies with Union Minister of Consumer Affairs, Food and Public Distribution as its President.
• Headquarters: New Delhi
• Collaboration with international standards bodies: BIS is a founder member of International Organisation for Standardization(ISO). It represents India in the International Organization for Standardization (ISO), the International Electrotechnical Commission (IEC) and the World Standards Service Network (WSSN).

Article Source

Context- The role of the Finance Commission as a neutral arbiter in the Centre-state relation in achieving the delicate balance.

What are the key highlights of the latest report?

The Fifteenth Finance Commission led by Chairman N. K. Singh submitted its report for the period 2021-2026 to President of India.

Title of the report – ‘Finance Commission in COVID Time’s and the scales are used to represent the balance between the States and the Union.

Significance of report-

1. The report will determine how India’s fiscal architecture is reshaped.
2. And how Centre-state relations are reset as the country attempts to recover from the COVID-19 shock

What are the key points in the report that can impact states revenue share?

1. The 15th Finance Commission, in its interim report had said, ‘There is merit in ensuring funds for defence and internal security and this will receive appropriate consideration in our final report.’

• This had led to speculation that states will have to contribute to such a fund, in turn leading to a drop in their share of central government’s taxes.

2. Southern Indian states complaining their efforts to control population would go against them. This is because the terms of reference of the 15th Finance Commission included using the 2011 census to suggest devolution of taxes to states.

• The 15th FC has considered the 2011 population along with forest cover, tax effort, area of the state, and “demographic performance” to arrive at the states’ share in the divisible pool.

What are the States issues?

Recommendation of 14^th Finance commission– The commission had recommended for an increase in the share of the States in total tax revenues from 32% to 42%. However, states’ share never touched 42 per cent of tax collections due to-

• Dominance of Centre– The Centre is trying to claw back the fiscal space ceded to the states and assert its dominance over the country’s fiscal architecture. Central government spending has risen on items that lie in the state and concurrent lists.
• Shrinking of divisible pool– Centre has reduced the pool of funds to be shared with the States by shifting from taxes to cesses and surcharges, revenue from which is not shared with the states.

Way forward-

• Finance Commission has to play an important role in achieving the delicate balance in the conflicting domain of finance by addressing the concerns of both the players.
• The Centre can reduce States’ fears by tabling the report without delay, and address any apprehensions it may give rise to.

Context – The Fifteenth Finance Commission led by Chairman N K Singh, submitted its Report to the President of India.

What are the key highlights of the latest report?

The Fifteenth Finance Commission led by Chairman N. K. Singh submitted its report for the period 2021-2026 to President of India. As per the Terms of Reference (ToR), the Commission was mandated to give its recommendations for five years, i.e., 2021-2026.

• Title of the report – ‘Finance Commission in COVID Times’and the scales are used to represent the balance between the States and the Union.
• The report is divided into four volumes.
• The Report is devoted to the Union Government and contains key departments in greater depth, with the medium-term challenges and the roadmap ahead.
• After the report is tabled in the Parliament, it will be available in the public domain.

Which issues are addressed in the report?

1. The Commission submitted its report on vertical and horizontal tax devolution, local government grants, disaster management grant, incentives for States in many areas such as power sector, adoption of DBT, solid waste management etc.
2. The Commission also submitted its report on whether a separate mechanism for funding of defence and internal security ought to be set up and if so how such a mechanism could be operationalized.

What are the key points in the report that can impact states revenue share?

1. The Commission has addressed all its unique terms of reference such as considering a new non-lapsable fund for financing national security and defence spending, and offering performance incentives for States that deliver on reforms.
2. The Fifteenth Finance Commission has considered the 2011 population along with forest cover, tax effort, area of the state, and “demographic performance” to arrive at the states’ share in the divisible pool of taxes.

States issues-

• Cutbacks in devolution – Centre has systematically cut the share of States in taxes raised by the Union government.
• Shrinking of divisible pool- Centre has reduced the pool of funds to be shared with the States by shifting from taxes to cesses and surcharges.

Way forward-

The Centre can reduce States’ fears further by tabling the report soon so that any anxieties can be debated and laid to rest, and States can also plan upcoming Budgets with less uncertainty.

Comptroller and Auditor General (CAG)

• It is a constitutional body established under Article 148 of the Constitution of India.
• Purpose: CAG audits all receipts and expenditure of the Government of India and the state governments, including those of bodies and authorities substantially financed by the government.
• Appointment: CAG is appointed by the President of India following a recommendation by the Prime Minister.

BARC was established as an autonomous ‘not for profit’ body duly registered under the Companies Act, 2013.

BARC was constituted comprising representatives from all relevant industry associations being Indian Broadcasting Foundation (IBF), Indian Society of Advertisers (ISA) and Advertising Agencies Association of India (AAAI).

BARC India owns and manages a transparent, accurate, and inclusive TV audience measurement system.

Whereas Indian Broadcasting Foundation (IBF) has 60% stake holding, Indian Society of Advertisers (ISA) and Advertising Agencies Association of India (AAAI) both have 20%-20% stake holding.

How BARC came into existence?

In 2000s, there were two rating agencies Television Audience Measurement (TAM) and INTAM in India providing data for TRPs. There were major mismatch and disputes in the data provided by both agencies.

TAM bought over the INTAM in 2001, leading to cartelisation in the TRP system, killing any possibility of scrutiny of the figures provided by TAM.

As a result, despite having 35 out of the top 50 programmes in all TV homes, none of the Door darshan channels was present in the top 50 slots in the C&S (Cable & Satellite) homes category, as per the data of TAM.

In another such controversy, a news channel with just 4 per cent prime time news was declared as number 1(“sab se Tez”) by TAM instead of DD National with 92 per cent share in prime-time news.

Data was collected on the basis of 2,000 “BAR-O-meters” installed one each in a house, on the back cover of the TVs.

The controversy was raised in the parliament in 2008. Ministry of Information and Broadcasting (MIB) asked the Telecom Regulatory Authority (TRAI) to frame policy guidelines for rating agencies.

TRAI recommended for self-regulation through an industry-led body, the Broadcast Audience Research Council (BARC). Thus, BARC came into existence.

In Jan. 2014, MIB notified Policy Guidelines for Television Rating Agencies and in 2015 BARC was accredited to television ratings in India. In 2016, TAM exited TV viewership measurement, not BARC is the sole TV rating service provider.

Synopsis: President’s Rule is imposed in Puducherry after all parties failed to make government. Legal and constitutional provisions related to UTs contributes to the destabilization of government there.

Background

• President rule is imposed recently in Puducherry after Narayanasamy government lost majority support in the assembly.
• This incident is not new. It is very common especially when Union Territories with assemblies and central government are ruled by different parties.
• Present constitutional and legal provisions for Union territories facilitate this destabilisation.

How present constitution set up makes it easier to destabilise Union Territories

Constitution of India under article 239A provides for legislature and Council of Ministers in Union territories. The intent behind this move was to fulfil the democratic aspirations of the people of these UTs. In other words, the rule of President under article 239 through administrator is not in line with democratic needs.

However, certain provisions are working as hurdles in achieving the real intent behind these provisions.

1. Firstly, Article 239A provides that a local Legislatures or Council of Ministers (CoM) or both can be created for Union territory. It means there can be a Council of Ministers without a legislature or with it or vice versa.
   • In our constitutional scheme, either CoM or legislatures can work alone. The legislature is a law-making body and CoM proposes these laws.
2. Secondly, provisions provide that legislature to be a partly elected and partly nominated body. Center through a simple amendment can create a legislature with more than 50% nominated members.
   1. In the case of Puducherry, the centre can nominate 3 members to 33 members Puducherry Assembly. Thus, the centre nominated 3 members of its party to the assembly. This move was challenged in SC. However, SC ruled that the centre is not required to consult the State government for nomination and nominated members have the same right to vote regular members.
   2. Rajya Sabha also has nominated members, but, under clause (3) of Article 80, some qualifications are mentioned for such nominations. It ensures enrichment of quality of debates.
   3. However, it is not the case with Puducherry assembly. No qualifications are mentioned for nominations.
3. Third, Lieutenant Governor in the UTs restricts the autonomy granted to UTs. Center can interfere in every decision of the Council of Ministers through LG and President.
   1. Article 239 AA(4) and section of UTs act vests the power in the administrator. He or she can express disagreement with any policy matter and refer the matter to the President. Then, he or she can take all actions he or she deems fit in the matter.
   2. In Puducherry too, conflicts between the Lt. Governor and the Chief Minister were perennial.

Thus, past experience proves that the UTs with legislatures have ultimate control vested in the central administrator. It is not workable.

Synopsis: The 15th Finance Commission has submitted its recommendations for 2021-26 to the centre. Amongst which maximum have been accepted by the centre while others are put on a hold by it. 

Background:

• The commission headed by N.K Singh was required to give recommendations for the period 2020-21 to 2024-25. 
• Although due to COVID 19, it was required to submit an interim report for a year 2020-21 and later give a road map for 2021-22 to 2025-2026.
• Further, the recommendations were to be given keeping in mind the multiple challenges. This included dissolution of the planning Commission, introduction of GST and above all the fiscal and revenue stress induced by the pandemic.
• The commission gave the recommendations based on a judicious interpretation of the unusual terms of reference given to it. This has ensured that recommendations are based on the principle of equity.

Recommendations accepted by the Centre:

• 41% of the Centre’s taxes would be distributed amongst the states.
• Revenue deficit grants amounting to 2.95 lakh crore would be given to 17 states in 5 years.
• Grants towards urban and local bodies would be conditional upon: 
  • Setting up of a State finance commission
  • Online publication of Local bodies accounts
  • Sanitation and Water services provided by local bodies (60% weightage)
• Setting up of a non-lapsable defence modernisation fund for augmenting capital expenditure on defence beyond the normal budgetary allocations.

Recommendations put on hold:

• Taking out 1.53 lakh crore rupees from the consolidated fund of India to partly finance defence modernization fund.
• Sectors specific and other grants to states amounting to 1.8 lakh crore rupees.

Way Forward:

• The Centre must take proactive steps to win the confidence of states, especially in the current stressful times. 
• The instances of introducing more cess and surcharges should be reduced as these are not shared with states, like the recent agricultural infrastructure development cess 
• The Centre needs to take states along with it to drive the country on a sustainable fiscal path and ensure equitable growth throughout the country.

 Read Also:-

Issues in 15th Finance Commission Recommendation

Synopsis: The 15^th Finance Commission recommendations are slightly different from the other Finance commissions. It has introduced many revolutionary changes that can shape India’s future.

What are the major challenges faced by 15^th Finance commission?

The 15^th Finance commission (FC) had many challenging tasks while preparing its report for the year 2021-26. The most important among them are,

1. One, the issue of using 2011 population census data. The southern states were against it.
2. Two, the issue of creating a non-lapsable defence fund.
3. Three, using certain parameters for calculating performance incentives to states.
4. Fourth, the 15^th FC required to prepare the fiscal roadmap for the Union and state amid a shortfall in the GST collection and the Pandemic.

How the 15^th FC report addressed these challenges?

1. First, the 15^th FC recommended vertical devolution at 41 per cent to states against 14^th FC recommendation of 42%. The 15^th FC adjusted 1 per cent for the erstwhile state of Jammu and Kashmir.
2. Second, for horizontal distribution, it introduced efficiency criteria for tax and fiscal efforts of states. This is expected to harmonise the principles of revenue needs and performance.
3. Third, the 15^th FC assigned 12.5 per cent weight to demographic performance. By that, it incentivized the states for the progress made by southern states in replacement rate of population growth.

What was the recommendation by 15^th FC for distributing grant in aids to the states?

• The grant allocation will be based on the below five categories. 1. Revenue deficit grants, 2. Grants for local governments, 3. Grants for disaster management, 4. Sector-specific grants and 5. State-specific grants.
• The centre in its Action Taken Report accepted all the grants except sector-specific grants (Rs 1,29,987 crore) and state-specific grants (Rs 49,599 crore).
• The Commission also tasked to examine, whether revenue deficit grants should be provided at all to the states. Some states argued that providing revenue deficit grants will disincentives tax efforts and prudence in expenditure.
• However, the FC recommended revenue deficit grants of Rs 2,94,514 crore for (2021-26). It will help fiscally stressed states by COVID, such as Kerala, Punjab, West Bengal.

What were the Changes brought by 15^th FC regarding grants to local governments?

• First, the 15^th FC has prescribed the following conditions to local bodies to get access to the grants.
  • Constitution of State Finance Commissions
  • Timely auditing and online availability of accounts for rural local bodies
  • Notifying consistent growth rate for property tax revenue for urban local bodies.
• Second, it has also recommended for tying the grants to the local bodies to drinking water, sanitation, solid-waste management and faecal sludge management. This is in line with the national programmes such as Swachch Bharat Mission and Jal Jeevan Mission.
• Third, for the first time, the FC recommends Rs 8,000 crore to states for incubation of eight new cities. It also provides for urban grants to million-plus cities for improving air quality, to meet the benchmark of solid waste management and sanitation.
• Fourth, the landmark recommendation of the 15^th FC is the health grant of Rs 70,051 crore through local bodies. It will help to address the gaps in primary health infrastructure.

15^th FC recommendations for strengthening Disaster risk management

• The FC recommends setting up the state and national level Disaster Risk Mitigation Fund (SDRMF). It is in line with the provisions of the Disaster Management Act.
• Also, for the first time, it introduced a 10-25 per cent graded cost-sharing by the states for the NDRF and NDMF. Though, this is not accepted by the states.

15^th FC recommendations to strengthen Defence sector

• It recommends for setting up of a dedicated non-lapsable fund and the Modernisation Fund for Defence and Internal Security (MFDIS) for 2021-2026.
• The fund will bridge the gap between projected budgetary requirements and budget allocation for defence and internal security. It will also provide greater predictability to critical defence related to capital expenditure.
• It has recommended the following four specific sources from where the funds for defence can be sourced.
  1. Transfers from the Consolidated Fund of India.
  2. Disinvestment proceeds of DPSEs.
  3. Proceeds from the monetisation of surplus defence land.
  4. Proceeds of receipts from defence land, which is likely to be transferred to state governments.
• Furthermore, It recommends an allocation of Rs 1,000 crore per annum for the welfare of families of the defence and CAPF personnel who sacrifice their lives in frontline duties.

Synopsis: The recent 15^th FC report recommendations criticised on the basis of two grounds. One, the recommendations will impact co-operative federalism. Two, the recommendations are not aligned with the changing federal structure in India.

Background

• Recently, the 15^th Finance commission (FC) report tabled in the parliament. It’s following key recommendations accepted by the government.
  1. The Commission has recommended a total devolution of Rs 8,55,176 crore to the states, which is 41% of the divisible pool of taxes.
  2. It also recommended for revenue deficit grants of Rs 1.18 lakh crore to the states.
  3. Furthermore, It recommended a non-lapsable defence fund. The grants component of the states has been reduced by 1 per cent (from 42% to 41%). It will be used to set up special funds for defence.
• The FC’s recommendation for the vertical devolution at 41% is pragmatic. However, some of its recommendations will have an implication on the co-operative federalism.

What are the issues in the 15^th FC recommendations?

• First, the 1% cut in the devolution is for special funding on defence. It means states are paying Rs 7,000 crore for defence and internal security. But, Defence and National Security are the centre’s responsibility as per the 7th Schedule of the Constitution. This use of funds from states to finance the Centre’s expenditure is against the spirit of cooperative federalism.
• Second, the issues in the horizontal distribution of funds. Successive finance commissions have used the criteria of need, equity for devolving 92.5 per cent of funds to a state. Whereas 15^th FC has reduced this to 75%. And the remaining 25% will be based on efficiency and performance. This is the lowest weightage for equity, making the 15th FC transfers the least progressive.
• Third, 15^th FC recommendations do not depict the changed fiscal conditions. For example, after GST, the tax collection method has changed from a production-based tax system to a consumption-based tax system.
  • This structural change has a significant impact on the interstate distribution of tax.  It is not taken into account by the 15^th FC report.
• Fourth, the approach for distributing revenue deficit grants is not changed. The 15^th FC could have recommended a minimum-guaranteed revenue of 14 per cent to every state.
  • This unchanged policy approach has resulted in an increase of statutory and non-statutory grants to almost 55 per cent of the total transfers. Whereas the aggregate transfers have dropped to 45 per cent. This makes the devolution process more discretionary.

Source: Indian Express

Gs2: Issues and Challenges Pertaining to the Federal Structure, Devolution of Powers and Finances up to Local Levels and Challenges Therein.

Synopsis:  The reforms suggested by the 15^th Finance commissions (interim report) can improve the financial governance of India’s municipalities.

Background:

• The 15^th Finance Commission submitted an interim report for FY 2020-21.
• Now, the final report for FY 2021-22 to FY 2025-26 is expected to be tabled along with the forthcoming Budget 2021-22.
• The Interim report for 2020-21 talks about raising the standards of financial governance of India’s municipalities in four specific ways.
• Implementation of the suggested 4 changes can be a watershed moment in the financial governance reforms of India’s municipalities.

What are the four changes suggested by the 15^th Finance commission?

The 15^th Finance commission in its interim report has suggested the following changes to bring reforms to the financial governance of India’s municipalities.

1. First, increasing the overall financial disbursement for municipalities (including panchayats) from the existing 30 per cent to 40 percent, in phases. This will result in increased financial resource for the municipalities over the five years.
2. Second,  it has set two very important conditions for all municipalities, for receiving grants. First, Publication of audited annual accounts. Second, notification of floor rates for property tax. It will result in financial accountability and increased revenue of Municipalities.
   • • Moreover, an Additional borrowing limit has been set for states (Rs 50,000 crore). It is linked to reforms in property taxes and user charges for water and sanitation.
3. Third, 100 percent outcome-based funding to 50 million-plus urban agglomerations (excluding Union Territories). Conditions emphasize specifically air quality, water supply, and sanitation.
   • • Note: India has 4,500 municipalities out of which approx. 250 municipalities are urban agglomerations with 53 million-plus population. It contains 44 per cent of the total urban population.
     • Whereas, the remaining 4,250-plus municipalities comprise 56 per cent of the total urban population.
4. Fourth, it has recommended a common digital platform for municipal accounts. This will give a consolidated view of municipal finances and sectoral outlays at the state level.

What are the suggestions?

Constitutional bodies like the finance commission can only prepare the grounds of reforms. The ultimate responsibility for municipal finance reforms remains with the state governments.  Thus, State governments need to enact municipal legislation towards following 5 Objectives:

1. Fiscal decentralisation by strengthening state finance commissions.
2. Revenue optimisation to enhance their own revenues.
3. Fiscal responsibility and budget management to accelerate municipal borrowings.
4. Strengthening institutional capacities by an adequately skilled workforce.
5. Facilitate transparency and citizen participation for democratic accountability.

• Also, State governments need to shift from the present discretionary grants practice to predictable fiscal transfers to municipalities.

Synopsis: Tussle between the Puducherry CM and LG Kiran Bedi is one of the examples of increasing frictions between constitutional functionaries. In today’s article we are listing the causes of frictions between them.  

Background 

• Recently, Puducherry Chief Minister (CM) V. Narayanasamy staged a three-day protest against Lieutenant Governor (LG) Kiran Bedi. 
• The CM accused LG of “functioning in an autocratic manner” and adopting an “obstructionist attitude” in ensuring the progress and welfare of people and asked the Centre for the recall of the Lt Governor.  
• Whereas, LG defended herself by stating that the Lt Governor’s secretariat is ensuring just, fair and accessible administration, within the legal limits.  

What are the causes of friction between Puducherry LG and CM? 

Both have been in friction over issues such as; 

• The appointment of the State Election Commissioner, an office critical to holding elections to local bodies in the Union Territory.  
• The implementation of direct benefit transfer in the public distribution system using cash, instead of free rice, being given to beneficiaries.  

How experts are seeing this issue? 

• First, the Assembly elections are likely in April or May. The protest of CM leading the protest against the Lt Governor was seen as an act of political mobilisation. 

• Second, experts opine that LG should also take into account the legitimate requirements of an elected government and try to accommodate Mr. Narayanaswamy’s views on important matters such as the free rice scheme.  

• Even the Centre itself did not see any benefit in the DBT mode when it decided to give additional food grains (rice or wheat) free of during the COVID-19 pandemic. 

Now the responsibility lies with the Centre to step in and restore the breakdown of communication between the Lt Governor and the Chief Minister in the interest of smooth administration.

Context- Importance of Centre-States coordination to deal with the emerging challenges of inter-state water governance.

How the two bills on water can attend the longstanding issue of inter-state externalities

1. The Interstate River Water Disputes Amendment Bill 2019– The bill seeks to improve the inter-state water disputes resolution by setting up a permanent tribunal supported by a deliberative mechanism, the dispute resolution committee.
2. The Dam Safety Bill, 2019– The bills provides for the surveillance, inspection, operation, and maintenance of specified dams, with the help of a comprehensive federal institutional framework comprising committees and authorities for dam safety at national and state levels.

• It also provides for an institutional mechanism to ensure the safety of such dams.

However, these two bills were passed by Lok Sabha and are pending in Rajya Sabha.

What is the importance of Jal Jeevan Mission JJM?

• The chief objective of the Mission is to provide piped water supply (Har Ghar Jal) to all rural and urban households by 2024.
• The Jal Jeevan Mission will converge with other Central and State Government Schemes to achieve its objectives of sustainable water supply management across the country.
• The central assistance through JJM is an opportunity to open a dialogue with the States to address federal water governance gap.

Why a coordinated response from the Centre and states is vital?

1. Systematic federal response– Emerging concerns of long-term national water security and sustainability, the risks of climate change, and the growing environmental challenges, including river pollution needs systematic federal response where the Centre and the states need to work in a partnership mode.
2. For implementation of current national projects– Centre-States coordination is also crucial for pursuing the national projects. For example Ganga river rejuvenation or inland navigation or inter-basin transfers.
3. Critical for Jal Jeevan Mission’s success.
4. To pursue development and sustainability goals–

What is the way forward?

1. Absence of authoritative water data- Data systems related to water in the country are limited in their coverage, robustness and efficiency. The sector suffers from the following key data problems-
2. Limited coverage,
3. Unreliable data
4. Limited co-ordination and sharing.

Therefore, the Centre can work with the states in building a credible institutional architecture for gathering data and producing knowledge about water resources.

2. Jal Jeevan Mission presents an opportunity to get states on board for a dialogue towards stronger Centre-states coordination and federal water governance ecosystem.

Context- The role of the Finance Commission as a neutral arbiter in the Centre-state relation in achieving the delicate balance.

What are the key highlights of the latest report?

The Fifteenth Finance Commission led by Chairman N. K. Singh submitted its report for the period 2021-2026 to President of India.

Title of the report – ‘Finance Commission in COVID Time’s and the scales are used to represent the balance between the States and the Union.

Significance of report-

1. The report will determine how India’s fiscal architecture is reshaped.
2. And how Centre-state relations are reset as the country attempts to recover from the COVID-19 shock

What are the key points in the report that can impact states revenue share?

1. The 15th Finance Commission, in its interim report had said, ‘There is merit in ensuring funds for defence and internal security and this will receive appropriate consideration in our final report.’

• This had led to speculation that states will have to contribute to such a fund, in turn leading to a drop in their share of central government’s taxes.

2. Southern Indian states complaining their efforts to control population would go against them. This is because the terms of reference of the 15th Finance Commission included using the 2011 census to suggest devolution of taxes to states.

• The 15th FC has considered the 2011 population along with forest cover, tax effort, area of the state, and “demographic performance” to arrive at the states’ share in the divisible pool.

What are the States issues?

Recommendation of 14^th Finance commission– The commission had recommended for an increase in the share of the States in total tax revenues from 32% to 42%. However, states’ share never touched 42 per cent of tax collections due to-

• Dominance of Centre– The Centre is trying to claw back the fiscal space ceded to the states and assert its dominance over the country’s fiscal architecture. Central government spending has risen on items that lie in the state and concurrent lists.
• Shrinking of divisible pool– Centre has reduced the pool of funds to be shared with the States by shifting from taxes to cesses and surcharges, revenue from which is not shared with the states.

Way forward-

• Finance Commission has to play an important role in achieving the delicate balance in the conflicting domain of finance by addressing the concerns of both the players.
• The Centre can reduce States’ fears by tabling the report without delay, and address any apprehensions it may give rise to.

Context – The Fifteenth Finance Commission led by Chairman N K Singh, submitted its Report to the President of India.

What are the key highlights of the latest report?

The Fifteenth Finance Commission led by Chairman N. K. Singh submitted its report for the period 2021-2026 to President of India. As per the Terms of Reference (ToR), the Commission was mandated to give its recommendations for five years, i.e., 2021-2026.

• Title of the report – ‘Finance Commission in COVID Times’and the scales are used to represent the balance between the States and the Union.
• The report is divided into four volumes.
• The Report is devoted to the Union Government and contains key departments in greater depth, with the medium-term challenges and the roadmap ahead.
• After the report is tabled in the Parliament, it will be available in the public domain.

Which issues are addressed in the report?

1. The Commission submitted its report on vertical and horizontal tax devolution, local government grants, disaster management grant, incentives for States in many areas such as power sector, adoption of DBT, solid waste management etc.
2. The Commission also submitted its report on whether a separate mechanism for funding of defence and internal security ought to be set up and if so how such a mechanism could be operationalized.

What are the key points in the report that can impact states revenue share?

1. The Commission has addressed all its unique terms of reference such as considering a new non-lapsable fund for financing national security and defence spending, and offering performance incentives for States that deliver on reforms.
2. The Fifteenth Finance Commission has considered the 2011 population along with forest cover, tax effort, area of the state, and “demographic performance” to arrive at the states’ share in the divisible pool of taxes.

States issues-

• Cutbacks in devolution – Centre has systematically cut the share of States in taxes raised by the Union government.
• Shrinking of divisible pool- Centre has reduced the pool of funds to be shared with the States by shifting from taxes to cesses and surcharges.

Way forward-

The Centre can reduce States’ fears further by tabling the report soon so that any anxieties can be debated and laid to rest, and States can also plan upcoming Budgets with less uncertainty.

What is Cess?

• • A cess is an earmarked tax that is collected for a specific purpose and ought to be spent only for that.
  • Cess may initially go to the CFI but has to be used for the purpose for which it was collected.
  • Cess collections are supposed to be transferred to specified Reserve Funds that Parliament has approved for each of these levies.
  • Every cess is collected after Parliament has authorised its creation through an enabling legislation that specifies the purpose for which the funds are being raised.
  • Article 270 of the Constitution allows cess to be excluded from the purview of the divisible pool of taxes that the Union government must share with the States.

What is GST Compensation Cess?

• The Goods and Services Tax in India is a comprehensive, multi-stage, destination-based value-added indirect tax. It has replaced many central and state indirect taxes in India such as the excise duty, VAT, services tax, etc.
  GST compensation: As per the GST (Compensation to States) Act, 2017, states are guaranteed compensation for revenue loss on account of implementation of GST for a transition period of five years (2017-2022).
• The compensation is calculated based on the difference between the current states’ GST revenue and the protected revenue after estimating an annualised 14% growth rate from the base year of 2015-16.
• Any shortfall has to be compensated from the receipts of Compensation Cess imposed on selected commodities that attract a GST of 28 per cent.
• At present, the cess levied on sin and luxury goods such as tobacco and automobiles flow into the compensation fund.
• But the issue was created when during Pandemic govt. denied paying compensation cess due to low revenue collection.

Recently Punjab has denied implementing the Central Farm Laws in the state and has moved amendments to the legislations.

Previously, on the Issue of CAA (Citizenship Amendment Act), several state governments like Kerala denied the implementation of the same in their states.

Thus, the question arises, are states empowered to reject the central laws in their states? if yes, then under what circumstances?

Powers of the central government

Article 256 of the constitution of India provides for the obligation of States and the Union.

• The executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose.
• Thus, under article 256 of the constitution, states are in obligation to Implement the laws framed by the central government.
• Article 257 (1) of the constitution of India provides that state governments shall not exercise their executive powers in a manner that will “impede or prejudice” the exercise of the executive powers of the Union.
• If a state is not implementing the act, Article 355 of the Constitution can be invoked to issue warning to the concerned state which states that the government of every State is carried on in accordance with the provisions of this Constitution.”
• If the state ignores the warning under Article 355 as well, the Centre can impose President’s rule under Article 356.

Rights available to the state government

• If any central law is Infringing upon the rights or powers of a state, then a state can move to the Supreme Court.
• Article 131 confers exclusive jurisdiction on the Supreme Court in disputes involving States, or the Centre on the one hand and one or more States on the other.
• Unlike individuals, State governments cannot complain of fundamental rights being violated thus cannot move to SC or High Courts under Article 32 or Article 226 of the Constitution.

Previous cases

• In 2011, in the State of Madhya Pradesh v. Union of India and Another, the court said that the Central laws can be challenged in the State High Courts and Supreme Court under Article 32 and held that the constitutional validity of a central law cannot be normally challenged under Article 131.
• In the State of Jharkhand vs. State of Bihar and (2014), the Supreme Court upheld Article 131 as an appropriate tool to test the constitutionality of central law. The court ruled that the condition for invoking the court’s jurisdiction under Article 131 was that the dispute should involve a question on the existence or extent of a legal right and not a political one.

Thus, presently, the States can move the Supreme Court under Article 131 if any legal right derived from any statue or the Constitution of India is infringed. Further states cannot question the legality of central law on a political or ideological basis.

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.

Source: Indian Express

Gs2: Issues and Challenges Pertaining to the Federal Structure, Devolution of Powers and Finances up to Local Levels and Challenges Therein.

Synopsis:  The reforms suggested by the 15^th Finance commissions (interim report) can improve the financial governance of India’s municipalities.

Background:

• The 15^th Finance Commission submitted an interim report for FY 2020-21.
• Now, the final report for FY 2021-22 to FY 2025-26 is expected to be tabled along with the forthcoming Budget 2021-22.
• The Interim report for 2020-21 talks about raising the standards of financial governance of India’s municipalities in four specific ways.
• Implementation of the suggested 4 changes can be a watershed moment in the financial governance reforms of India’s municipalities.

What are the four changes suggested by the 15^th Finance commission?

The 15^th Finance commission in its interim report has suggested the following changes to bring reforms to the financial governance of India’s municipalities.

1. First, increasing the overall financial disbursement for municipalities (including panchayats) from the existing 30 per cent to 40 percent, in phases. This will result in increased financial resource for the municipalities over the five years.
2. Second,  it has set two very important conditions for all municipalities, for receiving grants. First, Publication of audited annual accounts. Second, notification of floor rates for property tax. It will result in financial accountability and increased revenue of Municipalities.
   • • Moreover, an Additional borrowing limit has been set for states (Rs 50,000 crore). It is linked to reforms in property taxes and user charges for water and sanitation.
3. Third, 100 percent outcome-based funding to 50 million-plus urban agglomerations (excluding Union Territories). Conditions emphasize specifically air quality, water supply, and sanitation.
   • • Note: India has 4,500 municipalities out of which approx. 250 municipalities are urban agglomerations with 53 million-plus population. It contains 44 per cent of the total urban population.
     • Whereas, the remaining 4,250-plus municipalities comprise 56 per cent of the total urban population.
4. Fourth, it has recommended a common digital platform for municipal accounts. This will give a consolidated view of municipal finances and sectoral outlays at the state level.

What are the suggestions?

Constitutional bodies like the finance commission can only prepare the grounds of reforms. The ultimate responsibility for municipal finance reforms remains with the state governments.  Thus, State governments need to enact municipal legislation towards following 5 Objectives:

1. Fiscal decentralisation by strengthening state finance commissions.
2. Revenue optimisation to enhance their own revenues.
3. Fiscal responsibility and budget management to accelerate municipal borrowings.
4. Strengthening institutional capacities by an adequately skilled workforce.
5. Facilitate transparency and citizen participation for democratic accountability.

• Also, State governments need to shift from the present discretionary grants practice to predictable fiscal transfers to municipalities.

Context – The Sixth Schedule was incorporated to protect the rights of the minority tribals living within a larger state dominated by the majority.

More in news

• Khasi Students’ Union (KSU) an influential students’ body in Meghalaya has put up banners labelling all Bengalis in the state as Bangladeshis.
• It is also spearheading an agitation for an Inner Line Permit (ILP) to regulate outsiders coming into the state.

What is Inner Line Permit? 

• The Inner Line Permit is an official travel document that allows Indian citizens to stay in an area under the ILP system. The document is currently required by visitors to Arunachal Pradesh, Manipur, Nagaland and Mizoram.
• The ILP is issued by the concerned state government .The permits issued are mostly of different kinds, provided separately for tourists, tenants and for other purposes.

What is the Sixth Schedule?

• The Sixth Schedule consists of provisions for the administration of tribal areas in Assam, Meghalaya, Tripura and Mizoram, according to Article 244 of the Indian Constitution.
• Passed by the Constituent Assembly in 1949, it seeks to safeguard the rights of the tribal population through the formation of Autonomous District Councils (ADC).
• The ADCs are like miniature states having specific powers and responsibilities in respect of all the three arms of government: legislature, executive and judiciary.
• The governors of these states are empowered to reorganize boundaries of the tribal areas.

How Sixth Schedule discriminates against the non-tribal resident?

The Sixth Schedule, has faced opposition as it infringes upon the rights of non-tribals and discriminates against them in various ways-

Violating many of the fundamental rights granted to citizens under the Constitution like-

• The right to equality before law (Article 14).
• Right against discrimination on the grounds of caste, race, sex, place of birth or religion (Article 15).
• Right to equality of opportunity in public appointment (Article 16).
• Right to settle anywhere in India (Article 19).

What were the impacts of Sixth Schedule of the Constitution on non-tribal people of Meghalaya?

1. Forces migration– the KSU have driven many non-tribals out of the state,

• The share of population of non-tribals dwindling from 20 per cent in 1972, when the state was carved out of Assam, to 14 per cent in 2011.

2. Nearly no jobs for non-tribal population– The new State also promptly implemented near total reservation of jobs for its tribal population.
3. Non-tribal people were barred from acquiring property in Meghalaya.
4. The state’s abject failure to provide protection to the minority non-tribals or punish those responsible for violence against them.
5. 90 per cent of the Assembly seats (55 out of 60 in Meghalaya) reserved for the tribals.

What is the way forward?

• The Sixth Schedule undermines social harmony, stability and economic development of the state and the region.
• Indeed, it is now the rights of minority non-tribals that need protection.

Back to Village(B2V) programme

News: Jammu and Kashmir Government announced the third phase of ambitious Back to Village(B2V) programme.

Facts:

• Back to Village(B2V) programme: The programme aims to involve the people of the state and government officials in a joint effort to deliver the mission of equitable development. It also aims to energize Panchayats and direct development efforts in rural areas through community participation.
• Four main goals:
  • energising panchayats.
  • collecting feedback on the delivery of government schemes and programmes.
  • capturing specific economic potential.
  • undertaking assessment of needs of villages.
• Phases:
  • Phase I: To understand people’s grievances and demands.
  • Phase-II: It focused on the devolution of powers to panchayats and tried to understand how these panchayats are functioning and what are the grievances and demands
  • Phase-III: It has been designed on the format for grievance redressal.
• Features of Back to Village(B2V) programme.:
  1. As part of the programme, each gazetted officer will be assigned a gram panchayat where he/she will interact and obtain feedback from the panchayat representatives about their concerns, developmental needs and economic potential of the area.

 Read also :-Daily current affairs

The feedback obtained will help the government in needs assessment and subsequently to tailor the various central and state government schemes/programmes in improving the delivery of village-specific services and making the village life better in terms improved amenities and economic upliftment.

What is the News?
Association for Democratic Reforms(ADR) has released a report titled “Analysis of Donations received by Registered Unrecognised Political Parties”. The report underlines the lack of transparency among Registered Unrecognised Political Parties.

Facts:

What is Registered Unrecognised Political Parties?

If a party satisfies any one of below-mentioned criteria, then they are called Registered Unrecognised Political Parties. The conditions are

• • If the political party is newly registered
  • If the political parties not secured enough percentage of votes in Assembly or General Elections to become a State party
  • Political Parties that never contested in elections since they got registered with the Election Commission.

These parties don’t enjoy all the benefits extended to the recognised parties such as reserving a separate symbol for the party, subsidized land for party office etc.

Key Findings:

• The number of registered unrecognised political parties has increased two-fold from 2010 to 2019. From 1,112 parties in 2010 to 2,301 in 2019.
• State-wise: Of the total of 2,301 registered unrecognised parties, 653 parties or 28.38% belong to Uttar Pradesh. This is followed by Delhi (291 parties or 12.65%) and Tamil Nadu (184 parties or 8%).
• The number of these parties has increased disproportionately during the year of Parliamentary elections between 2018 and 2019.
• Donations: These parties received 90 crores from 12,998 donors in two financial years (2017-18 and 2018-19). Among that, 65.63 crores or 72.88% of the total declared donations belongs to Apna Desh Party of Uttar Pradesh.
• Contributions Report: Only 78 or 3.39% of the total 2,301 registered unrecognised parties donation information is available in the public domain for 2018-19. For 2017-18, the reports are available for only 82 parties or 3.56% of the total registered unrecognised parties.

Source: The Hindu

Source: The Hindu

Gs3: Science and Technology- Developments and their Applications and Effects in Everyday Life.

Synopsis:  ECI is planning to implement a remote voting project. It must analyze the issues of the system before its implementation.

Remote Voting Project

• Recently, the Chief Election Commissioner  (Sunil Arora)  announced that it is starting trials of a “remote voting project”.
• IIT-Madras is developing the system for the “Remote Voting Project” by using  Blockchain technology.
• The concept of remote voting became popular during the COVID-19 pandemic to address social distancing.

Read More – Remote Voting Project 

How voting technology developed over time?

Since the beginning, EC has been facing challenges in ensuring a fair and just voting system for the country. Over the years, it has introduced many changes for that.

• In the initial phases, ECI  used the “paper balloting” method to conduct elections in India.
• However, the “paper balloting” method was subjected to malpractices such as ballot stuffing and booth capturing.
• Due to this weakness, ECI introduced  Electronic Voting Machine in India (EVM). EVMs are able to stand intense scrutiny, because of their standalone single-chip device. This device is not connected to any network.
• Recently,  Voter Verifiable Paper Audit Trail (VVPAT) are added to the EVMs. It enhanced the ability to verify the voting.

Now, ECI has started trials in the “Remote Voting Project” that uses blockchain technology. This system will definitely face the same level of scrutiny, that faced by EVMs.

How blockchain-based voting system work?

• This technology has been already in use for cryptocurrencies. It is used to record a list of transactions that can be used to find out who owns which bitcoins without any centralized authority.
• The blockchain method uses an online public bulletin board that is public and available for anyone to read and verify.
• The voting authority will have to authenticate this bulletin board.
• Further, The public bulletin board allows for a linear ordering of data that ensures only a user can add data.
• This allows the users to sign in to the bulletin board using cryptographic signatures to register their votes in a ledger.
• The blockchain-based voting system with its cryptographic features, promises data security and verifiability.

What are the issues in using a blockchain-based voting system?

• The use of blockchain-based voting systems will depend upon a network. It will also face all the online vulnerabilities that devices are facing at present.
• Also, a  recent draft paper by MIT and Harvard researchers pointed to serious vulnerabilities in the designs of a remote block-chain-based voting system.
• The research paper also claims that blockchains will introduce issues related to complexity and their management.

The ECI should be cautious before deploying this method in elections.

What is the News?

As per Election Commission, the remote voting project would be launched soon.

What is the Remote Voting Project?

• A remote voting project will enable a voter to cast his or her franchise from any polling station in the country. It will remove the compulsion on voting only at the polling station, where the person is registered.
• This program would help lakhs of voters who live outside their home constituencies for work or education.
• The project is being developed by the IIT-Madras using blockchain technology.

What is an e-EPIC?

• It is an Electronic version of the Electoral Photo Identity Card(EPIC). It would be a non-editable PDF version of the EPIC. Furthermore, it can be downloaded on the phone and stored on the DigiLocker app or printed from a computer.
• All general voters who have valid EPIC numbers would be able to download the Electronic version of the Electoral Photo Identity Card.