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GS Paper: GS2-01.Indian Constitution-Historical underpinnings & evolution; Features, amendments, significant provisions, basic structure of Constitution

  • Ladakh’s Demand for Sixth Schedule

    ladakh

    Central Idea: The Ministry of Home Affairs (MHA) will meet civil society leaders from Ladakh amid persistent demands and protests in the Union Territory for statehood and constitutional safeguards under the sixth schedule of the Constitution.

    About Ladakh

    • Ladakh is a region in the northernmost part of India, bordering China and Pakistan.
    • The region is home to several ethnic groups, including the Ladakhi people, who are predominantly Buddhist.

    Demand for Sixth Schedule in Ladakh

    • There has been a demand from the local tribal communities in Ladakh to extend the provisions of the Sixth Schedule to the region.
    • The demand has been primarily driven by concerns over the protection of tribal rights and the preservation of the unique cultural identity of the local communities.

    Current administration in Ladakh

    • Ladakh was granted Union Territory status in 2019, following the bifurcation of the state of Jammu and Kashmir into two separate Union Territories.
    • The administration of Ladakh is currently governed by the Lieutenant Governor of Ladakh and an elected Ladakh Autonomous Hill Development Council (LAHDC).

    Benefits of Sixth Schedule in Ladakh

    • Meeting tribal aspiration: The Parliamentary standing committee recommended including of Ladakh in the Sixth Schedule because its tribal communities account for 79.61% of its total population.
    • Autonomy and self-governance: The extension of the Sixth Schedule to Ladakh could provide greater autonomy and self-governance to the local tribal communities.
    • Cultural preservation: It could also help to protect the unique cultural identity of the local communities and preserve their traditional practices and customs.

    Challenges to this demand

    • No further fragmentation: The demand to extend the Sixth Schedule to Ladakh has faced some opposition from certain quarters, who argue that it could lead to further fragmentation of the region and create new administrative challenges.
    • Losing political capital: There are also concerns over the potential impact of the demand on the political and administrative structure of the region.

    Conclusion

    • Overall, the demand to extend the provisions of the Sixth Schedule to Ladakh is a complex issue that requires careful consideration of the needs and aspirations of the local tribal communities, as well as the broader political and administrative context of the region.

    Back2Basics: Sixth Schedule of Indian Constitution

    • The Sixth Schedule of the Indian Constitution provides for the administration of tribal areas in the northeastern states of India.
    • These provisions were added to the Constitution in order to protect the rights and interests of the tribal communities in these areas and to promote their social, cultural, and economic development.

    Here’s a summary of the Sixth Schedule of the Indian Constitution:

    Areas covered

    • The Sixth Schedule covers the tribal areas in the states of Assam, Meghalaya, Tripura, and Mizoram.
    • These areas are known as “tribal areas” and are home to a large number of indigenous tribal communities.

    Autonomous district councils

    • The Sixth Schedule provides for the establishment of autonomous district councils in the tribal areas.
    • These councils have the power to make laws and regulations for the governance of their respective areas.
    • They are also responsible for the administration of the local institutions of self-government, such as village councils and traditional councils.

    Composition of district councils

    • The members of the district councils are elected by the people of the respective districts.
    • The councils are headed by a chairman, who is also elected by the members of the council.
    • The district councils have the power to appoint their own staff and to manage their own finances.

    Powers of district councils

    • The district councils have the power to make laws on a range of subjects, including land, forests, water, and fisheries.
    • They also have the power to regulate local markets and to levy taxes and fees on a range of activities.
    • The district councils can also establish and manage schools, hospitals, and other institutions for the benefit of the local communities.

    Protection of tribal rights

    • The Sixth Schedule provides for the protection of the rights of the tribal communities in the areas covered by the schedule.
    • It ensures that the traditional rights and customs of the tribal communities are respected and protected.
    • It also provides for the reservation of seats in the district councils and other local bodies for members of the tribal communities.

     

  • 80 Castes to be added to Central OBC List

    Central Idea

    • National Commission for Backward Classes (NCBC) is processing the approval for adding approximately 80 castes from six states to the Central List of Other Backward Classes (OBCs).
    • The Ministry of Social Justice and Empowerment (MSJE) also reported the addition of 16 communities to the Central OBC list in Himachal Pradesh, Bihar, Jharkhand, Madhya Pradesh, and Jammu and Kashmir.

    About National Commission for Backward Classes (NCBC)
    Established Constitution Act, 2018 (also known as 102nd Amendment Act, 2018) under Article 338B of the Indian Constitution
    Jurisdiction Ministry of Social Justice and Empowerment, Government of India
    Purpose Active participation and advisory role in the socio-economic development of socially backward classes (OBCs)

    Evaluating the progress of their development
    Statutory Backing Outcome of the Indra Sawhney & Others v. Union of India case (16.11.1992)
    Composition Chairperson, Vice-Chairperson, and three other members appointed by the President

    Conditions of service and tenure determined by the President
    Functions and Powers Inclusions and exclusions in the lists of backward communities for job reservations

    Providing advice to the Central Government

    Investigating and monitoring safeguards for backward classes

    Inquiring into specific complaints related to their rights and safeguards

    Participating in socio-economic development and evaluating progress
    Reports and Recommendations Annual reports to the President and recommendations for effective implementation of safeguards

    Recommendations for measures to protect, welfare, and socio-economic development of backward classes
    Other Functions Discharging functions specified by the President and subject to parliamentary laws
    Constitutional Amendment 102nd Constitutional Amendment Act (2018) empowered NCBC to address grievances of Other Backward Classes

     

    Who are the Other Backward Classes (OBCs)?

    • Other Backward Class is a collective term used to classify castes which are educationally or socially disadvantaged.
    • It is one of several official classifications of the population of India, along with General Class, Scheduled Castes and Scheduled Tribes (SCs and STs).
    • The OBCs were found to comprise 55% of the country’s population by the Mandal Commission report of 1980, and were determined to be 41% in 2006.

    Communities likely to be added

    States like Maharashtra, Telangana, Andhra Pradesh, Himachal Pradesh, Punjab, and Haryana have proposed communities to be added to the Central OBC list.

    1. Telangana: Suggested the addition of around 40 communities.
    2. Andhra Pradesh: Turup Kapu community
    3. Himachal Pradesh: Majhra community
    4. Maharashtra: Lodhi, Lingayat, Bhoyar, Pawar, and Jhandse communities
    5. Punjab: Yadav community
    6. Haryana: Gosai/Gosain community

    Approval Process

    • NCBC Examination: The NCBC examines the requests and processes them accordingly, aiming for most of them to be approved.
    • Cabinet Approval: Once the Commission decides, it can send its recommendations to the Cabinet for approval.
    • Notification by President: The final step involves legislation and notification by the President to enact the changes.

    How is the process different from SC/ST list updation?

    • Unlike the procedure for adding communities to the SC or ST lists, the addition of communities to the Central OBC list does not require the concurrence of the Office of the Registrar General of India or any other authority.
    • The Commission follows guidelines established by the Mandal Commission in 1979, considering social, educational, and economic indicators for additions to the Central OBC list.

    Current Status of OBC List and Recent Additions

    • The Central OBC list currently includes over 2,650 different communities from all states and union territories.
    • The Union government takes credit for recent additions and highlights the 105th Constitutional Amendment, which protects state OBC communities from being deprived of benefits.
    • There are currently about 1,270 communities listed in the Scheduled Caste (SC) list and 748 communities in the Scheduled Tribes (ST) list.

    Changes in the SC and ST Lists

    • Since the last Census in 2011, four communities have been added to the SC list as main entries, 40 as sub-entries, and four have been dropped or moved to other lists.
    • Similarly, in the ST list, five communities were added as main entries, 22 as sub-entries, 13 as substitute terms, and one was dropped.

    Impact of OBC List Additions

    • Broader representation: Adding more castes to the Central OBC list ensures broader representation and access to reserved seats and benefits for disadvantaged communities.
    • Social upliftment: The inclusion of additional communities acknowledges their backwardness and provides opportunities for social upliftment and empowerment.

    Challenges and Criticisms

    • Political motivation: The process may face challenges and criticisms, such as concerns over potential political motivations or inaccuracies in identifying backwardness.
    • Issue of parity: Ensuring transparency, fairness, and inclusivity in the decision-making process is essential to address these challenges and maintain the integrity of the OBC list.

    Conclusion

    • The reservation system and OBC list play a significant role in promoting social equality by providing opportunities for historically marginalized communities.
    • The continuous evaluation and expansion of the OBC list reflect the government’s commitment to creating a more inclusive society and addressing historical injustices.

  • Uniform Civil Code

    uniform civil code ucc

    Central Idea: The 22nd Law Commission of India has sought fresh suggestions from various stakeholders, including public and religious organisations, on the Uniform Civil Code (UCC).

    What is Uniform Civil Code (UCC)?

    • The UCC aims to establish a single personal civil law for the entire country, applicable to all religious communities in matters such as marriage, divorce, inheritance, adoption, etc.
    • The idea of a UCC has a long history in India and has been a topic of debate and discussion.
    • This article explores the basis for a UCC, its timeline, the conflict with the right to freedom of religion, minority opinions, challenges to implementation, and the way forward.

    Basis for UCC: Article 44

    • Article 44 of the Directive Principles envisions the state’s endeavor to secure a UCC for all citizens throughout the country.
    • While DPSP of the Constitution are not enforceable by courts, they provide fundamental principles for governance.

    Personal Laws and UCC: A Timeline

    • Colonial Period: Personal laws were first framed for Hindu and Muslim citizens during the British Raj.
    • 1940: The idea of a UCC was proposed by the National Planning Commission, examining women’s status and recommending reforms for gender equality.
    • 1947: UCC was considered as a fundamental right during the framing of the Constitution by Minoo Masani, Hansa Mehta, Amrit Kaur, and Dr. B.R. Ambedkar.
    • 1948: The Constitution Assembly debated Article 44, which emphasizes the implementation of uniform civil laws as a state duty under Part IV.
    • 1950: Reformist bills were passed, granting Hindu women the right to divorce and inherit property and outlawing bigamy and child marriages.
    • 1951: Ambedkar resigned when his draft of the Hindu Code Bill was stalled in Parliament.
    • 1985: Shah Bano case highlighted the need for a UCC and the rights of divorced Muslim women.
    • 1995: Sarla Mudgal v. Union of India reiterated the urgency of a UCC for national integration and removing contradictions.
    • 2000: The Supreme Court, in Lily Thomas v. Union of India, stated it could not direct the government to introduce a UCC.
    • 2015: The apex court refused to mandate a decision on implementing a UCC.
    • 2016: The Triple Talaq debate gained attention, leading to the ruling of its unconstitutionality in 2017.

    UCC vs. Right to Freedom of Religion

    1. Article 25: Guarantees an individual’s fundamental right to religion.
    2. Article 26(b): Upholds the right of religious denominations to manage their own affairs.
    3. Article 29: Protects the right to conserve distinctive culture.
    • Reasonable restrictions can be imposed on freedom of religion for public order, health, morality, and other provisions related to fundamental rights.

    Minority Opinion in the Constituent Assembly

    • Some members sought to exempt Muslim Personal Law from state regulation, arguing against interference in personal laws based on secularism.
    • Concerns were raised about uniformity in a diverse country like India and the potential for opposition from different communities.
    • Gender justice was not a significant focus during these debates.

    Enacting and Enforcing UCC

    • Fundamental rights are enforceable in courts, while Directive Principles have varying degrees of enforceability.
    • The wording of Article 44 suggests a lesser duty on the state compared to other Directive Principles.
    • Fundamental rights are considered more important than Directive Principles, and a balance between both is crucial.

    Need for UCC

    • Multiple personal laws: Different religions and denominations follow distinct property and matrimonial laws, hindering national unity.
    • Absence of exclusive jurisdiction: Such thing in the Union List implies that the framers did not intend to have a UCC.
    • Customary laws are discriminatory: These laws also vary among different communities and regions.

    Why is UCC Necessary?

    • Harmonizing equality: UCC would provide equal status to all citizens, promote gender parity, and align with the aspirations of a liberal and young population.
    • Promote fraternity: Implementation of UCC would support national integration.

    Hurdles to UCC Implementation

    • Opposition from religious factions: The diverse religious and cultural landscape of India poses practical difficulties.
    • Minority resistance: UCC is often perceived by minorities as an encroachment on religious freedom and interference in personal matters.
    • Societal preparedness: Experts argue that Indian society may not be ready to embrace a UCC at present.

    Unaddressed Questions

    • Ignoring diversities: Maintaining the essence of diverse components of society while achieving uniformity in personal laws.
    • One size fits all: The assumption that practices of one community are backward or unjust.
    • Uniqueness of diversity: The effectiveness of uniformity in eradicating societal inequalities.

    Way Forward

    • Theological education: Religious intelligentsia should educate their communities about rights and obligations based on modern interpretations.
    • Open discussion: The government should create an environment conducive to UCC by explaining Article 44’s contents and significance while considering different perspectives.
    • Gradual introduction: Social reforms should be gradual, addressing concerns such as fake news and disinformation.
    • Prioritizing social harmony: Preserving the cultural fabric of the nation is essential.

    Conclusion

    • UCC is a complex issue that requires careful consideration of religious, cultural, and societal perspectives.
    • Balancing the unity and diversity of India is crucial, as the implementation of a UCC should aim to provide equal rights and opportunities while respecting the distinct identities of different communities.
    • Education, dialogue, and a gradual approach are necessary to achieve consensus and promote social harmony in the country.

  • The Tussle Between Chief Ministers and Governors: Preserving the Sanctity of Legislative Processes

    Governors

    Central Idea

    • Issues have recently surfaced in several states regarding the delay in the passage of Bills, leading to conflicts between Chief Ministers and Governors. This situation poses a challenge for parliamentary democracies, where governments are elected to enact laws that reflect the will of the people. Inability to legislate effectively can potentially result in a breakdown of the democratic system.

    Who is Governor?

    • Parallel to President: The Governors of the states of India have similar powers and functions at the state level as those of the President of India at the Central level.
    • Nominal head: The governor acts as the nominal head whereas the real power lies with the Chief Ministers of the states and her/his councils of ministers.
    • Similar offices: Governors exist in the states while Lieutenant Governors or Administrators exist in union territories including the National Capital Territory of Delhi.
    • Non-local appointees: Few or no governors are local to the state that they are appointed to govern.

    The Role of the Governor in the state

    • Constitutional Head: The Governor serves as the constitutional head of the state and represents the President at the state level.
    • Executive Functions: The Governor appoints the Chief Minister, who is usually the leader of the majority party in the Legislative Assembly. The Governor also appoints other members of the Council of Ministers on the advice of the Chief Minister.
    • Legislative Functions: The Governor summons and prorogues sessions of the Legislative Assembly, and can also dissolve the Legislative Assembly if necessary. The Governor addresses the Legislative Assembly at the beginning of each session, highlighting the government’s policies and priorities.
    • Assenting to Bills: The Governor plays a crucial role in the legislative process by giving or withholding assent to bills passed by the Legislative Assembly. The Governor can also return a bill with recommendations for reconsideration by the Legislative Assembly.
    • Discretionary Powers: The Governor can exercise certain discretionary powers, such as referring a bill to the President if it affects the powers of the High Court or if it involves a matter of public interest. The Governor may also exercise discretion in situations where the Constitution expressly permits independent action.
    • Judicial Functions: The Governor appoints the Chief Justice and other judges of the High Court in consultation with the Chief Justice of India and the state’s Chief minister. The Governor also has the power to grant pardons, reprieves, and remissions of punishment.
    • Diplomatic Functions: The Governor represents the state in its relations with other states in India and performs ceremonial duties as the representative of the state.
    • Emergency Powers: In times of emergency or breakdown of constitutional machinery in the state, the Governor can assume additional powers to maintain law and order and ensure the smooth functioning of the government.
    • Interaction with the Central Government: The Governor acts as a link between the state government and the central government. They communicate state-related matters to the President and seek the President’s advice on various issues

    Constitutional Provision Regarding Governor

    • Article 153: Provides a Governor for each State, and by virtue of Article 154, the executive power of the State shall be vested in the Governor “Shall be exercised by him directly or through officers subordinate to him in accordance with this Constitution”.
    • Article 154(2)(a): Prohibits the Governor from exercising any function “conferred by existing law on any other Authority.
    • Article 163: Categorically provides that “there shall be a council of ministers with the Chief Minister at the head to aid and advise the Governor. except in so far as he is by or under this Constitution required to exercise his function or any of them in his discretion”

    Governors

    Governor’s Power to Assent the Bill

    According to Article 200:

    • Assenting to Bills: When a bill is presented to the Governor, they have three options: to give their assent, to withhold their assent, or to return the bill with recommendations for reconsideration.
    • Returning the Bill: If the Governor decides to return the bill, they can do so with a message to the Legislative Assembly, requesting them to reconsider the bill wholly or partially. However, this provision applies only to bills that are not Money Bills.
    • Timeframe for Reconsideration: The Legislative Assembly has a period of six months to decide whether or not to accept the Governor’s recommendations. If the bill is returned to the Governor and the Legislative Assembly accepts the recommendations, the Governor is obliged to give their assent to the bill.
    • Discretionary Referral to the President: The Governor also has the discretion to refer a bill to the President if they believe that the bill, if enacted, would encroach upon the powers of the High Court. In such cases, the procedure for obtaining the President’s assent is outlined in Article 201 of the Constitution

    Judicial Review over the Governor’s Autonomy

    • Constitutionality of Actions: The judiciary has the authority to review the actions of the Governor and determine whether they are consistent with the provisions of the Constitution. If the Governor acts in a manner that exceeds their constitutional powers or violates constitutional provisions, the judiciary can intervene and declare such actions as unconstitutional.
    • Exercise of Discretionary Powers: The Governor’s discretionary powers, as granted by the Constitution, are subject to judicial review. If the Governor’s exercise of discretion is found to be arbitrary, unreasonable, or against constitutional principles, the judiciary can intervene and provide necessary remedies.
    • Violation of Fundamental Rights: If the actions or decisions of the Governor infringe upon the fundamental rights of individuals or groups, the judiciary can review such violations and ensure that constitutional rights are protected. The courts can examine whether the Governor’s actions are in accordance with the fundamental rights guaranteed by the Constitution and take appropriate measures to safeguard these rights.
    • Compliance with Constitutional Procedures: The judiciary can review whether the Governor has followed the prescribed constitutional procedures in exercising their powers. This includes assessing whether the Governor has properly considered the advice of the Council of Ministers, followed the constitutional provisions regarding assenting to bills, or adhered to procedural requirements in making appointments or taking other actions.
    • Limits on Discretion: Judicial review ensures that the Governor’s discretion is not absolute and subject to constitutional limitations. If the Governor’s actions are found to be beyond their constitutional powers, the judiciary can nullify such actions and provide appropriate remedies.
    • Review of Delayed Actions: If the Governor unduly delays taking action on a bill or any other matter, the judiciary can review such delays to ensure that they are not in violation of constitutional principles. If the delay is deemed unreasonable or unjustified, the courts can intervene and direct the Governor to fulfill their constitutional obligations within a reasonable time frame

    Governors

    Conclusion

    • The issues between Chief Ministers and Governors regarding the passing of Bills highlight the need to preserve the integrity of parliamentary democracy. The Governor’s role is to act on the advice of the Council of Ministers, and their discretion is limited. Judicial review ensures constitutional adherence and protects democratic principles.

    Interesting to read

    Constituent Assembly Debate and Ideal Conduct of Governor

     

  • Delhi Governance New Ordinance

    ordinance

    Central Idea

    • The central government issued an Ordinance on May 19, overturning a unanimous Supreme Court verdict.
    • The Ordinance grants the Lieutenant Governor of Delhi authority over services, challenging the elected government’s control over officials’ transfer and posting.
    • This raises constitutional concerns about the balance of power between the elected government and the Lieutenant Governor.

    Issues with this ordinance

    • The Ordinance bestowed power over services to the Lieutenant Governor of Delhi.
    • It established the “National Capital Civil Service Authority,” consisting of the Chief Minister and two senior IAS officials, to decide matters by majority vote.
    • This provision potentially allows the elected Chief Minister’s viewpoint to be overruled.

    Key issues with the current model of Governance of Delhi

    • Undermining the elected government: The LG, who will be the government, is under no obligation to implement any law passed by the assembly or carry out the directions of the house as he is not responsible to the assembly.
    • Lack of Executive Accountability: The Lieutenant Governor, who is the head of government, is not accountable to the assembly, which undermines the principle of executive accountability.
    • Against the privilege of legislature: Framing the rules to conduct its proceedings is thus a part of the privilege each house of a legislature enjoys.
    • Delay in decision-making: The requirement for LG’s approval for many decisions has led to delays in decision-making, which has impacted the development and governance of the city.
    • Accountability issues: The division of responsibilities between the elected government and the Lieutenant Governor has led to difficulties in fixing responsibility for actions and decisions.
    • Against Co-operative Federalism: The Act not only negates cooperative federalism but also upturns the fundamental principles laid down by the Supreme Court in Government of NCT Delhi vs Union of India case (2018).
    • Control over Services Department: Governance has always been a contentious issue since Delhi is not a full state and the Services department comes under the L-G.

    What is Ordinance?

    • Under Article 123 of the Constitution, the President possesses law-making powers through the issuance of ordinances during the recess of Parliament.
    • Article 213 grants the Governor of a state the authority to issue ordinances when the state legislative assembly or either of the two Houses (in states with bicameral legislatures) is not in session.
    • However, there are limitations to this authority:
    1. Issuance during Recess: The President can only promulgate an ordinance when one or both Houses of Parliament are not in session.
    2. Immediate Action: An ordinance can only be issued when the President deems it necessary for immediate action.
    3. Justiciability: The President’s intentions to issue ordinances can be subject to judicial review if mala fide intentions are proven.

    Features of Ordinances

    Several characteristics and provisions are associated with ordinances:

    • Retrospective Effect: An ordinance can have a retrospective application, meaning it can be enacted prior to its approval.
    • Nullity during Parliamentary Session: An ordinance issued while Parliament is in session is considered null and void.
    • Time Limit for Approval: An ordinance must be approved by Parliament within six weeks of its reassembly. Failure to do so leads to its expiration.
    • Continuation of Acts and Laws: Acts, laws, and events resulting from the ordinance remain in effect until its expiration.
    • Limits on Legislative Authority: Ordinances can only be passed on subjects within the legislative competence of the Indian Parliament.
    • Protection of Fundamental Rights: Ordinances cannot be used to revoke the fundamental rights guaranteed by the Indian Constitution. Their enforcement would render them null and void if both Houses pass a resolution opposing them.

    Issues with the Ordinances

    The use of ordinances has raised concerns regarding their potential misuse and circumvention of democratic processes. Some key concerns are:

    • Bypassing the Legislature: Deliberate bypassing of the legislature to avoid debate and deliberation on contentious legislative proposals undermines democratic principles.
    • Repromulgation of Ordinances: Repromulgation without placing the ordinance before the legislature subverts democratic legislative processes and the separation of powers.
    • Presidential Satisfaction: The satisfaction of the President as a requirement for issuing an ordinance provides scope for potential misuse.
    • Ignoring Supreme Court’s Judgments: Instances of ordinances being promulgated despite Supreme Court judgments highlighting their conditional and exceptional nature raise concerns about adherence to constitutional principles.

    Judicial Safeguards to avoid re-promulgation of ordinances

    1. Supreme Court in RC Cooper vs. Union of India (1970) held that the President’s decision to promulgate ordinance could be challenged on the grounds that ‘immediate action’ was not required, and the ordinance had been issued primarily to bypass debate and discussion in the legislature.
    2. It was argued in DC Wadhwa vs. the State of Bihar (1987) that the legislative power of the executive to promulgate ordinances is to be used in exceptional circumstances and not as a substitute for the law-making power of the legislature.
    3. Supreme Court in Krishna Kumar Singh v. the State of Bihar held that the authority to issue ordinances is not an absolute entrustment, but is “conditional upon satisfaction that circumstances exist rendering it necessary to take immediate action”.

    Way ahead

    • Every ordinance issued must be laid before both the Houses of Parliament or state legislature within six weeks from the reassembly of Parliament or state legislature and it ceases to exist if it is not approved within six weeks of reassembly.
    • 44th Constitutional Amendment has reiterated that the satisfaction of the President to promulgate ordinance could be challenged in case an ‘immediate action’ was not required.
    • Our Constitution has provided for the separation of powers among the legislature, executive and judiciary where enacting laws is the function of the legislature.
    • The executive must show self-restraint and should use ordinance making power only in unforeseen or urgent matters and not to evade legislative scrutiny and debates.

    Conclusion

    • The recent Ordinance and its constitutional implications highlight the need for a balanced distribution of powers between the elected government and the Lieutenant Governor in Delhi.
    • It is essential to uphold democratic principles and ensure that legislative functions are carried out by the appropriate constitutional authorities.
    • A comprehensive review of the governance framework in Delhi may be necessary to address these concerns and ensure effective and harmonious governance in the capital city.

     

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  • Freedom of Speech the ‘Bulwark’ of Democracy: Andhra HC

    Central Idea: The Andhra Pradesh High Court has overturned a Government Order (GO) issued by the state government that aimed to regulate public meetings, processions, and assemblies on roads.

    Key takeaways of the ruling

    • The court held that the right to assemble, protest peacefully, and express one’s opinion freely was a precious freedom.
    • It emphasized that this freedom should not be curtailed based on unproven assertions made by government officials.
    • The court reiterated that freedom of speech was considered the foremost among liberties and was crucial for democracy.
    • It stated that such a precious freedom should not be left to the unrestricted discretion of any individual.

    AP move regulating Public Assembly

    • The GO sought to regulate public meetings and assemblies on roads, roadsides, and margins.
    • The state government argued that the regulations were necessary to address fatal accidents and ensure smooth traffic flow.
    • Sections 30, 30A, and 31 of the Police Act, 1861 were cited as the basis for the directions under the GO.

    High Court’s decision and reasoning

    • The court set aside the GO, ruling that it imposed a ban on all meetings on public highways and roads.
    • It stated that accidents or incidents at specific locations should not result in a total restriction on the right to assemble or conduct processions on other roads.
    • The court suggested studying the causes of incidents and issuing guidelines to prevent their recurrence rather than imposing broad restrictions.

    Upholding the Right to Assembly

    • The court asserted that the right to assemble, protest peacefully, and express opinions freely is a fundamental freedom that cannot be curtailed arbitrarily.
    • Freedom of speech is regarded as a crucial pillar of democracy and must not be subject to unfettered discretion.
    • The court deemed the power conferred by the GO as excessive, arbitrary, and failing the test of proportionality.

    Reference: 2018 SC Ruling on Peaceful Assembly

    • The court referred to the guidelines laid down in the Supreme Court’s ruling in “Mazdoor Kisan Shakti Sangathan v Union of India (2018).”
    • The guidelines regulate protests and demonstrations, recognizing the right to peaceful assembly while allowing reasonable restrictions.
    • The ruling includes provisions on the number of participants, minimum distances from important locations, and restrictions during visits by foreign dignitaries.

    Back2Basics: Right to Assemble

    • The right to assemble in India refers to the fundamental right guaranteed under Article 19(1)(b) of the Constitution of India.
    • It grants individuals the freedom to peacefully assemble, protest, and hold public meetings or processions.
    • This right allows citizens to come together to express their views, opinions, and grievances collectively in a public setting.
    • It is an essential aspect of democracy, enabling citizens to engage in peaceful activism, raise awareness about social issues, and participate in public discourse.
    • However, reasonable restrictions can be imposed on this right in the interest of public order, morality, and the sovereignty and integrity of India.

     

     

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  • In news: Sikkim Statehood Day

    sikkim

    Sikkim Statehood Day

    • Sikkim day is annually celebrated on May 16, commemorating the integration of Sikkim with India in 1975.
    • The process of Sikkim joining India occurred about two decades after Sardar Vallabbhai Patel led the integration of princely states into India.

    Sikkim’s History with the Chogyal Royals

    • The kingdom of Sikkim was established in 1642 when Phuntsong Namgyal was consecrated as the first ruler or Chogyal.
    • Sikkim’s monarchy, under the Namgyal dynasty, lasted for 333 years until its integration with India in 1975.
    • Sikkim had a Tibetan origin and was located between India and China. It often faced conflicts over land with Bhutan and Nepal.
    • The British saw Sikkim as a buffer state and established a formal relationship with it.
    • Various treaties like the Treaty of Tumlong (1861), Treaty of Titaliya (1817), Calcutta Convention (1890), and Lhasa Convention (1904) shaped the relationship between Sikkim and the British.

    Independent India and Sikkim

    • After India’s independence, princely states had the option to accede to India or Pakistan.
    • Sikkim’s unique relationship with British rule led to complexities in its integration with India.
    • Sardar Vallabbhai Patel and BN Rau wanted Sikkim to sign the Instrument of Accession to integrate it with India.
    • Jawaharlal Nehru acknowledged the situation in Sikkim and emphasized its autonomous growth.
    • Sikkim State Congress (SSC), Praja Mandal (PM), and Praja Sudharak Samaj (PSS) demanded a popular government, abolition of landlordism, and accession to India.
    • A Standstill Agreement was signed to maintain the existing arrangement while discussions continued.

    War with China

    • Sikkim had a state council with elected and nominated members.
    • Political developments in the 1960s and 1970s played a significant role in Sikkim’s status.
    • The formation of the Sikkim National Congress (SNC) in 1960 and changes in political leadership on both sides influenced the course of events.
    • India-China war of 1962 and containment of border skirmishes made it important to clarify the relationship between India and Sikkim.

    How Sikkim finally joined India?

    • The Indian leadership started supporting pro-democracy forces in Sikkim, such as Kazi Dorji of the SNC.
    • Protests in Sikkim in 1973 led to a tripartite agreement between the Chogyal, the Indian government, and three major political parties.
    • Elections were held in 1974, and a new constitution limited the role of the monarch.
    • A referendum held in 1975 resulted in a majority vote in favor of joining India.
    • The Constitution (Thirty-Sixth Amendment) Bill was passed, recognizing Sikkim as a state in the Union of India.
    • Sikkim’s new parliament proposed a bill for Sikkim to become an Indian state, which was accepted by the Indian government.

     

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  • Key Takeaways of SC’s Maharashtra Verdict

    The Supreme Court issued a unanimous judgment on various issues related to the split in a political party in Maharashtra in June 2022.

    Key Takeaways

    Here are the key takeaways from the verdict:

    (1) Disqualification

    • MLA disqualifications upheld: The Supreme Court did not interfere with the proceedings related to the disqualification of 16 MLAs (who had gone to Dehradun) including Chief Minister.
    • Onus on Speaker: The court stated that the issue of disqualification should be decided by the Speaker of the Legislative Assembly as per established procedures in law.

    (2) Consideration of Party Constitution

    • Political party constitution: The court emphasized that while deciding disqualification pleas, the Speaker must consider the constitution of the political party, which was submitted to the Election Commission (EC) with the consent of both factions.
    • Split occurred later: The court clarified that the “split” in the party would no longer be a defense available to MLAs facing disqualification.

    (3) Governor’s Role

    • Issue over floor test circumstances: The court criticized the then Governor for calling a floor test without sufficient objective material to show that the incumbent government had lost the confidence of the House.
    • Must remain politically neutral: The court stated that the Governor should exercise their power within the limits of the law and should not enter the political arena nor interfere in intra-party disputes.

    (4) Former CM Resignation

    • Should have faced floor test: The court mentioned that erstwhile CM of tripartite government, who led one of the factions, had resigned and did not face the floor test.
    • Re-instation was possible: The court held that it could not quash a resignation submitted voluntarily, but if ex-CM had refrained from resigning, the court could have considered a remedy to reinstate his government.

    (5) Illegal Appointment of Whip

    • The court deemed the appointment of the whip by the split-led faction to be illegal.
    • The Speaker should have conducted an independent inquiry to verify the decision of the political party regarding the appointment of the whip.

    (6) Distinction between Legislature Party and Political Party

    • The court clarified that the legislature party and the political party cannot be conflated.
    • The court stated that a political party must be registered with the Election Commission, while the legislature party has independent existence to provide defense to legislators’ actions within the political party.

    (7) Concurrent Jurisdiction of Speaker and EC

    • The court rejected the contention that the Election Commission was barred from deciding on the party symbol dispute until the Speaker decided the disqualification pleas.
    • The court stated that both the Speaker and the EC can adjudicate issues concurrently.

    (8) Others

    • Nabam Rebia Case, 2016: Additionally, the court referred certain issues related to its judgment in the Nabam Rebia Case to a larger Bench.
    • Restrictions on the ousted Speaker: This included the restriction of the Speaker’s powers in issuing disqualification notices to MLAs in the presence of a notice for the Speaker’s removal.

     

     

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  • Delhi vs. Centre: Key takeaways of SC’s verdict

    Central Idea

    Key takeaways

    (1) Disagreement with Justice Bhushan’s Judgment

    • The Supreme Court stated that it does not agree with Justice Ashok Bhushan’s judgment that the Delhi government has no power over services.

    (2) Article 239A and Legislative Assembly for NCT

    • The Supreme Court highlighted that Article 239A establishes a legislative assembly for the National Capital Territory of Delhi.
    • The members of the legislative assembly are elected by the electorate of Delhi, and the interpretation of Article 239A should support representative democracy.

    (3) Limits of Power

    • The court clarified that the control over services does not extend to areas related to public order, police, and land.

    (4) Delhi Government Represents Representative Form of Government

    • According to the Supreme Court, the Delhi government, like other states, represents the representative form of government.
    • Any expansion of the central government’s power would contradict the Constitutional scheme.

    (5) Impact on Ministers’ Control

    • The court noted that if administrative services are excluded from the legislative and executive domains, ministers would be excluded from controlling civil servants responsible for implementing executive decisions.

    (6) Executive Power and Existing Law

    • The court clarified that the executive power of the state is subject to existing union laws.

    (7) Principle of Collective Responsibility

    • The Supreme Court emphasized that if officers do not report to ministers or fail to follow their instructions, the principle of collective responsibility will be affected.

    (8) Triple Chain of Accountability

    • Chief Justice of India DY Chandrachud highlighted that denying democratically elected governments the power to control officers would render the principle of the triple chain of accountability redundant.

    Back2Basics: Article 239AA

    • Article 239AA granted Special Status to Delhi among Union Territories (UTs) in the year 1991 through the 69th Constitutional Amendment.
    • It provided a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers.
    • That’s when Delhi was named as the National Capital Region (NCT) of Delhi.
    • As per this article – Public Order, Police & Land in NCT of Delhi fall within the domain and control of Central Government which shall have the power to make laws on these matters.
    • For remaining matters of State List or Concurrent List, in so far as any such matter is applicable to UTs, the Legislative Assembly shall have the power to make laws for NCT of Delhi.

     

     

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  • Exemptions under Surrogacy Law

    The govt in the Supreme Court has said that same-sex couples and live-in partners are not included in surrogacy and assisted reproduction laws to avoid ‘misuse’ and provide children a ‘complete family’.

    Government’s stance

    • Same-sex couples and live-in partners are excluded from surrogacy and assisted reproduction laws to avoid ‘misuse.’
    • The welfare of the child should be prioritized over any notions of equality among prospective parents or couples.
    • No special provisions or additional rights have been granted to same-sex couples and live-in partners despite the decriminalization of their relationships.

    Why in news?

    • The government’s perspective is not in tune with several Supreme Court judgments that long live-in relationships “presume” marriage.
    • Live-in partners are not bound by law, and the safety of the child born through surrogacy cannot be guaranteed.

    Judiciary in support

    • Same-sex couples are fighting for their right to marry and raise a family as equal parents.
    • CJI heading the Constitution Bench, has remarked that same-sex couples could offer as stable and loving a home, if not better, to children as heterosexual married parents.

    Distinct features of the Surrogacy (Regulation) Act, 2021

    • Definition of surrogacy: It defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand over the child after the birth to the intending couple.
    • Regulation of surrogacy: It prohibits commercial surrogacy, but allows altruistic surrogacy which involves no monetary compensation to the surrogate mother other than the medical expenses and insurance.
    • Purposes for which surrogacy is permitted: Surrogacy is permitted when it is: (i) for intending couples who suffer from proven infertility; (ii) altruistic; (iii) not for commercial purposes; (iv) not for producing children for sale, prostitution or other forms of exploitation; and (v) for any condition or disease specified through regulations.
    • Eligibility criteria: The intending couple should have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority ex. District Medical Board.

    Eligibility criteria for surrogate mother:

    • To obtain a certificate of eligibility from the appropriate authority, the surrogate mother has to be:
    1. A close relative of the intending couple;
    2. A married woman having a child of her own;
    3. 25 to 35 years old;
    4. A surrogate only once in her lifetime; and
    5. Possess a certificate of medical and psychological fitness for surrogacy.
    • Further, the surrogate mother cannot provide her own gametes for surrogacy.

    Basis of the Petition: Right to Reproductive Autonomy

    • The personal decision of a single person about the birth of a baby through surrogacy, i.e., the right of reproductive autonomy is a facet of the right to privacy guaranteed under Article 21 of the Constitution.
    • Thus, the right to privacy of every citizen or person affecting a decision to bear or beget a child through surrogacy cannot be taken away.

    Other issues with Surrogacy Law

    • Medical issue necessity: Married women can only avail surrogacy services if they are unable to produce a child due to medical conditions.
    • Widow/Divorced: Otherwise, for women to avail of surrogacy services, they must be aged between 35 and 45 and widowed or divorced.
    • One child obligation: Women can only offer surrogacy if they are aged between 25 and 35 and married with at least one biological child.
    • Genetic relation obligation: The laws also require a surrogate to be genetically related to the couple who intend to have a child through this method.

     

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