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

  • What laws govern tapping a phone; what are the checks in place?

    A lady IPS officer is facing an FIR in Mumbai for allegedly tapping the phones of a Rajya Sabha MP in Maharashtra.

    How are phones tapped in India?

    • In the era of fixed-line phones, mechanical exchanges would link circuits together to route the audio signal from the call.
    • When exchanges went digital, tapping was done through a computer.
    • Today, when most conversations happen through mobile phones, authorities make a request to the service provider.
    • The service provider is bound by law to record the conversations on the given number and provide these in real time through a connected computer.

    Who can tap phones?

    • The State Police have the powers to tap phones.
    • Ten Central agencies are authorised to do so: Intelligence Bureau, CBI, Enforcement Directorate, Narcotics Control Bureau, Central Board of Direct Taxes, Directorate of Revenue Intelligence, National Investigation Agency, R&AW, Directorate of Signal Intelligence, and the Delhi Police Commissioner.
    • Tapping by any other agency would be considered illegal.

    What laws govern this?

    • Phone tapping in India is governed by The Indian Telegraph Act, 1885.
    • Section 5(2) says that “on the occurrence of any public emergency, or in the interest of the public safety”, phone tapping can be done by the Centre or states.
    • It can be done in the interest of “public safety”, “sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence”.
    • There is an exception for the press: “press messages intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained, unless their transmission has been prohibited under this sub-section”.
    • The competent authority must record reasons for tapping in writing.

    Who authorises phone tapping?

    • Rule 419A of the Indian Telegraph (Amendment) Rules, 2007, says phone tapping orders “shall not be issued except by an order made by the Secretary to the GoI in the Ministry of Home Affairs.
    • It can be authorised by the Secretary to the State Government in-charge of the Home Department in the case of a State Government.
    • The order has to be conveyed to the service provider in writing; only then can the tapping begin.

    What happens in an emergency?

    • In unavoidable circumstances, such an order may be issued by an officer, not below the rank of a Joint Secretary to the GoI, who has been authorised by the Union Home Secretary, or the State Home Secretary.
    • In remote areas or for operational reasons, if it is not feasible to get prior directions, a call can be intercepted with the prior approval of the head or the second senior-most officer of the authorised law enforcement agency at the central level, and by authorised officers, not below the rank of Inspector General of Police, at the state level.
    • The order has to be communicated within three days to the competent authority, who has to approve or disapprove it within seven working days.
    • If the confirmation from the competent authority is not received within the stipulated seven days, such interception shall cease.
    • For example, during the 26/11 attacks in Mumbai, the authorities had no time to follow the complete procedure, and so a mail was sent to the service provider by the Intelligence Bureau.

    What are the checks against misuse?

    • The law is clear that interception must be ordered only if there is no other way of getting the information.
    • The directions for interception remain in force, unless revoked earlier, for a period not exceeding 60 days.
    • They may be renewed, but not beyond a total of 180 days.
    • Any order issued by the competent authority has to contain reasons, and a copy is to be forwarded to a review committee within seven working days.
    • At the Centre, the committee is headed by the Cabinet Secretary with the Law and Telecom Secretaries as members.
    • In states, it is headed by the Chief Secretary with the Law and Home Secretaries as members.
    • The committee is expected to meet at least once in two months to review all interception requests.

    What if misuse occurs?

    • When the Review Committee is of the opinion that the directions are not in accordance with the provisions referred to above it may set aside the directions.
    • It may order for destruction of the copies of the intercepted message or class of messages.
    • Under the rules, records pertaining to such directions shall be destroyed every six months unless these are, or are likely to be, required for functional requirements.
    • Service providers too are required to destroy records pertaining to directions for interception within two months of discontinuance of the interception.

    Is the process transparent?

    • There are multiple provisions aimed at keeping the process transparent.
    • Directions for interception are to specify the name and designation of the officer or the authority to whom the intercepted call is to be disclosed.
    • The directions have to be conveyed to designated officers of the service providers in writing by an officer not below the rank of SP or Additional SP or equivalent.
    • The officer is expected to maintain records with details of the intercepted call.
    • The designated nodal officers of the service providers are supposed to issue acknowledgment letters to the security/law enforcement agency within two hours on receipt of an intimation.
    • They are to forward every 15 days a list of interception authorisations received to the nodal officers of the security and law enforcement agencies for confirmation of authenticity.
    • It makes the service providers responsible for actions of their employees.
    • In case of unauthorised interception, the service provider may be fined or even lose its licence.

     

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  • Need for one common language

    Last week, Home Minister Amit Shah suggested that states should communicate with each other in Hindi rather than English, while stressing that Hindi should not be an alternative to local languages.

    This again sparked the debate of “Hindi imposition”.

    How widely is Hindi spoken in India?

    • The 2011 linguistic census accounts for 121 mother tongues, including 22 languages listed in the 8th Schedule of the Constitution.
    • Hindi is the most widely spoken, with 52.8 crore individuals, or 43.6% of the population, declaring it as their mother tongue.
    • The next highest is Bengali, mother tongue for 97 lakh (8%) — less than one-fifth of Hindi’s count (Chart 2).
    • In terms of the number of people who know Hindi, the count crosses more than half the country.
    • Nearly 13.9 crore (over 11%) reported Hindi as their second language, which makes it either the mother tongue or second language for nearly 55% of the population.

    Has it always been this widespread?

    • Hindi has been India’s predominant mother tongue over the decades, its share in the population rising in every succeeding census.
    • In 1971, 37% Indians had reported Hindi as their mother tongue, a share that has grown over the next four censuses to 38.7%, 39.2%, 41% and 43.6% at last count (Chart 1).
    • This begs the question as to which mother tongues have declined as Hindi’s share has risen.
    • A number of mother tongues other than Hindi have faced a decline in terms of share, although the dip has been marginal in many cases.
    • For example, Bengali’s share in the population declined by just 0.14 percentage points from 1971 (8.17%) to 2011 (8.03%).
    • In comparison, Malayalam (1.12 percentage points) and Urdu (1.03 points) had higher declines among the mother tongues with at least 1 crore speakers in 2011.
    • Punjabi’s share, on the other hand, rose from 2.57% to 2.74%.
    • At the other end of the scale (among the 22 languages listed in the 8th Schedule of the Constitution) were Malayalam, whose numbers rose by under 59% in four decades, and Assamese, rising just over 71% (Chart 3).

    What explains Hindi’s high numbers?

    • One obvious explanation is that Hindi is the predominant language in some of India’s most populous states, including Uttar Pradesh, Madhya Pradesh and Bihar.
    • Another reason is that a number of languages are bracketed under Hindi by census enumerators.
    • In 2011, there were 1,383 mother tongues reported by people, and hundreds were knocked out.
    • These mother tongues were then grouped into languages.
    • You will find that under Hindi, they have listed nearly 65 mother tongues.
    • Among them is Bhojpuri, and 5 crore people have reported Bhojpuri as their mother tongue, but the census has decided that Bhojpuri is Hindi.
    • If one were to knock out the other languages merged with Hindi, the total figure goes down to 38 crore.

    And how widely is English spoken?

    • Although English, alongside Hindi, is one of the two official languages of the central government, it is not among the 22 languages in the 8th Schedule; it is one of the 99 non-scheduled languages.
    • In terms of mother tongue, India had just 2.6 lakh English speakers in 2011 — a tiny fraction of the 121 crore people counted in that census.
    • That does not reflect the extent to which English is spoken.
    • It was the second language of 8.3 crore respondents in 2011, second only to Hindi’s 13.9 crore.
    • If third language is added, then English was spoken — as mother tongue, second language or third language — by over 10% of the population in 2011, behind only Hindi’s 57%.
    • It is still not a scheduled language in India, when it should be.

    Where is English most prevalent?

    • As mother tongue, Maharashtra accounted for over 1 lakh of the 2.6 lakh English speakers.
    • As second language, English is preferred over Hindi in parts of the Northeast.
    • Among the 17.6 lakh with Manipuri (an 8th Schedule language) as their mother tongue in 2011, 4.8 lakh declared their second language as English, compared to 1.8 lakh for Hindi.
    • Among the non-scheduled languages spoken in the Northeast, Khasi, predominant in Meghalaya, was the mother tongue of 14.3 lakh, of whom 2.4 lakh declared their second language as English, and 54,000 as Hindi.
    • The trends were similar for Mizo, and for various languages spoken in Nagaland, including Ao, Angami and Rengma.
    • Beyond the Northeastern languages, among 68 lakh with Kashmiri as their mother tongue, 2.8 lakh declared their second language as English, compared to 2.2 lakh who declared Hindi.

    Back2Basics: Eighth Schedule to the Indian Constitution

    • The Eighth Schedule lists the official languages of the Republic of India.
    • At the time when the Constitution was enacted, inclusion in this list meant that the language was entitled to representation on the Official Languages Commission.
    • This language would be one of the bases that would be drawn upon to enrich Hindi and English, the official languages of the Union.
    • The list has since, however, acquired further significance.
    • In addition, a candidate appearing in an examination conducted for public service is entitled to use any of these languages as the medium in which he or she answers the paper.
    • As per Articles 344(1) and 351 of the Indian Constitution, the eighth schedule includes the recognition of the 22 languages.

    ‘Classical’ languages in India

    Currently, six languages enjoy the ‘Classical’ status: Tamil (declared in 2004), Sanskrit (2005), Kannada (2008), Telugu (2008), Malayalam (2013), and Odia (2014).

    How are they classified?

    According to information provided by the Ministry of Culture in the Rajya Sabha in February 2014, the guidelines for declaring a language as ‘Classical’ are:

    • High antiquity of its early texts/recorded history over a period of 1500-2000 years;
    • A body of ancient literature/texts, which is considered a valuable heritage by generations of speakers;
    • The literary tradition be original and not borrowed from another speech community;
    • The classical language and literature being distinct from modern, there may also be a discontinuity between the classical language and its later forms o

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  • Strengthen secularism

    Context

    The High Court of Karnataka has not been able to settle the hijab issue. The petition has been filed in the apex court by a Muslim student against the high court judgement.

    Political and Constitutional dimensions of the issue

    • The issue of the hijab is political as well as constitutional.
    • The top court will examine the constitutional aspect and its judgment will hopefully settle the issue.
    • But the political dimension of the hijab issue will continue to trouble Indian society for a long time.
    • The Indian Constitution provides for freedom of religion and conscience on the one hand and secularism for the governance of the country on the other.

    Understanding the freedom of religion under Indian Constitution

    • Under the Indian Constitution, there is a separation of religion from the state as in Europe.
    • The essence of India’s secularism is that the state has no religion.
    • This is clear from Articles 27 and 28 of the Constitution.
    • Article 27 says that no tax can be levied for promoting any particular religion.
    • In other words, no public revenue is permitted to be spent in favour of any particular religion. 
    • Article 28 says that no religious instruction shall be given in any educational institutions wholly maintained out of state funds.
    • The same Article says that no educational institution recognised or aided by the state shall compel any person to attend religious classes or worship therein.
    • Article 25(2)(a) empowers the state to regulate secular activities associated with religious practice.
    • Article 15 prohibits any kind of discrimination on the ground of religion.
    • Freedom of religion is subject to other fundamental rights: Above all, freedom of religion is made subject to other fundamental rights, apart from the reasonable restrictions on the grounds of public order, morality and health.
    • Thus, the freedom of religion under the Constitution does not enjoy the same status as other secular rights such as equality before law, non-discrimination, right to life and liberty, etc.

    Why India needs to be secular

    • Theocracy will ensure the disintegration of the country.
    • 1] India is a multi-religious country where the largest minority is around 200 million.
    • The Government of India had notified as many as six minority religions in the country.
    • So, a theocratic state with the majority religion as the state religion is an unworkable proposition.
    • 2] Complex structure: Another crucial factor which makes a theocratic state impossible in India is the complex, inegalitarian, hierarchical and oppressive social structure of the majority religion.
    • 3] There would be no equality: Since a theocratic state based on the religious texts, in the Indian context, would mean a state which would deny equality before law and equal protection of law to the subaltern class and discriminate against them on the basis of caste, it will be inherently unstable.
    • This may lead to perennial conflicts and the eventual disintegration of society.
    • Therefore, we reach the inevitable conclusion that India, as a nation, can survive only as a secular state where the state has no religion and does not promote any religion.

    Conclusion

    Secularism was chosen as the foundational principle of the republic to keep the nation united. Enlightened citizens should realise that if secularism is jettisoned, the hard-won national unity will be in peril. It is the patriotic duty of every citizen to strengthen secularism and thus save the republic.

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  • No need for laws to enforce duties on citizens: AG

    Attorney-General K.K. Venugopal said that there was no need to enact specific laws to “enforce” fundamental duties on citizens.

    What is the case?

    • The Supreme Court is entertaining a public interest litigation (PIL) petition to enforce the fundamental duties of citizens, including patriotism and unity of nation, through “comprehensive, well-defined laws”.

    Precursor to AG’s remark

    • The Supreme Court has directed in the Ranganath Mishra judgment of 2003 regarding the implementation of the Justice J.S. Verma Committee’s report on the “operationalization of fundamental duties”.
    • The committee’s work was a part of a report of the National Commission to Review the Working of the Constitution.
    • The report had urged the government to sensitise people to, and create general awareness of, their duties and the protection of minorities and freedom of religion.

    What are Fundamental Duties?

    • The fundamental duties of citizens were added to the constitution by the 42nd Amendment in 1976, upon the recommendations of the Swaran Singh Committee.
    • It basically imply the moral obligations of all citizens of a country and today, there are 11 fundamental duties in India, which are written in Part IV-A of the Constitution, to promote patriotism and strengthen the unity of India.
    • The FDs obligate all citizens to respect the national symbols of India, including the constitution, to cherish its heritage, preserve its composite culture and assist in its defence.
    • They also obligate all Indians to promote the spirit of common brotherhood, protect the environment and public property, develop scientific temper, abjure violence, and strive towards excellence in all spheres of life.

    Judicial interpretation of FDs

    • The Supreme Court has held that FDs are not enforceable in any Court of Law.
    • It ruled that these fundamental duties can also help the court to decide the constitutionality of a law passed by the legislature.
    • There is a reference to such duties in international instruments such as the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights, and Article 51A brings the Indian constitution into conformity with these treaties.

    Total FDs

    • Originally ten in number, the fundamental duties were increased to eleven by the 86th Amendment in 2002.

    The 10 fundamental duties are as follows:

    1. To oblige with the Indian Constitution and respect the National Anthem and Flag
    2. To cherish and follow the noble ideas that inspired the national struggle for freedom
    3. To protect the integrity, sovereignty, and unity of India
    4. To defend the country and perform national services if and when the country requires
    5. To promote the spirit of harmony and brotherhood amongst all the people of India and renounce any practices that are derogatory to women
    6. To cherish and preserve the rich national heritage of our composite culture
    7. To protect and improve the natural environment including lakes, wildlife, rivers, forests, etc.
    8. To develop scientific temper, humanism, and spirit of inquiry
    9. To safeguard all public property
    10. To strive towards excellence in all genres of individual and collective activities

    The 11th fundamental duty which was added to this list is:

    1. To provide opportunities for education to children between 6-14 years of age, and duty as parents to ensure that such opportunities are being awarded to their child. (86th Amendment, 2002)

    Try this PYQ from CSP 2017:

    Q. Which of the following is/are among the Fundamental Duties of citizens laid down in the Indian Constitution?

    1. To preserve the rich heritage of our composite culture
    2. To protect the weaker sections from social injustice
    3. To develop the scientific temper and spirit of inquiry
    4. To strive towards excellence in all spheres of individual and collective activity.

    Select the correct answer using the codes given below:

    (a) 1 and 2 only

    (b) Only 2

    (c) 1, 3 and 4 only

    (d) 1, 2, 3 and 4

     

    [wpdiscuz-feedback id=”vi1m5s5vrg” question=”Please leave a feedback on this” opened=”1″]Post your answers here.[/wpdiscuz-feedback]

     

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  • Social media platforms must be held accountable for subjugating rights: Centre to HC

    The Centre told the Delhi High Court that social media platforms must be held accountable for “subjugating and supplanting fundamental rights like the right to freedom of speech and expression, otherwise the same would have dire consequences for any democratic nation”.

    What is the news?

    • The Ministry’s submission came in response to a petition filed by a Twitter user whose account was suspended by the microblogging site for alleged violations of platform guidelines.
    • The Twitter user said his account was suspended for the reason of “ban evasion” (creating an account when a similar account was earlier banned).
    • The complainant said Twitter suspended his accounts without giving him an opportunity for a hearing.

    Centre’s argument

    • The Centre said when a Significant Social Media Intermediary (SSMI) such as Twitter takes a decision to suspend the whole or part of a user’s account on its own due to its policy violation, it should afford a reasonable opportunity to the user to defend his side.
    • The exception, the Centre said, where the SSMIs could take such a decision include certain scenarios such as rape, sexually explicit material or child sexual abuse material, bot activity or malware, terrorism-related content etc.
    • If an SSMI fails to comply with the above, then it may amount to a violation of IT Rules 2021, the Centre clarified.
    • No platform or intermediary will be allowed to infringe upon the citizens’ rights, including but not limited to Articles 14, 19 and 21 guaranteed under the Constitution of India under the guise of violation of the platform’s policies unless it constitutes a violation of extant law in force.

    What are the IT Rules 2021?

    Why is this a matter of concern?

    • Social media platforms must respect the fundamental rights of the citizens and should not take down the account itself or completely suspend the user account in all cases.
    • Taking down the whole information or the user account should be a last resort.
    • Only in cases where the majority of the contents/posts/tweets on an account are unlawful, the platform may take the extreme step of taking down the whole information or suspending the whole account.

    Conclusion

    • Hence it can be argued that undue discontinuance of social media accounts of any person is violative of fundamental rights guaranteed under Articles 14, 19 and 21.

     

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  • States can identify Minorities: Centre

    In an affidavit filed in the top court, the Union Ministry of Minority Affairs said “state governments can also declare a religious or linguistic community as a ‘minority community’ within the state”.

    Why in news?

    • The Centre was responding to a petition filed stating that the followers of Judaism, Baha’ism and Hinduism — who are the real minorities in Ladakh, Mizoram, Lakshadweep, Kashmir, Nagaland, Meghalaya, Arunachal Pradesh, Punjab and Manipur.
    • They however cannot establish and administer educational institutions of their choice.
    • The Centre said the allegation was “not correct”.
    • The government’s affidavit explained that Parliament and State legislatures have concurrent powers to enact laws to provide for the protection of minorities and their interests.

    Various states on Minorities

    • The Centre gave the example of how Maharashtra notified ‘Jews’ as a minority community within the State.
    • Again, Karnataka notified Urdu, Telugu, Tamil, Malayalam, Marathi, Tulu, Lambadi, Hindi, Konkani and Gujarati as minority languages within the State.

    Who are the Minorities?

    • Muslims, Sikhs, Christians, Buddhists, Jain and Zorastrians (Parsis) have been notified as minority communities under Section 2 (c) of the National Commission for Minorities Act, 1992.
    • As per the Census 2011, the percentage of minorities in the country is about 19.3% of the total population of the country.
    • The population of Muslims are 14.2%; Christians 2.3%; Sikhs 1.7%, Buddhists 0.7%, Jain 0.4% and Parsis 0.006%.
    • Minority Concentration Districts (MCD), Minority Concentration Blocks and Minority Concentration Towns, have been identified on the basis of both population data and backwardness parameters of Census 2001 of these areas.

    Defining Minorities

    • The Constitution recognizes Religious minorities in India and Linguistic minorities in India through Article 29 and Article 30.
    • But Minority is not defined in the Constitution.
    • Currently, the Linguistic minorities in India are identified on a state-wise basis thus determined by the state government whereas Religious minorities in India are determined by the Central Government.
    • The Parliament has the legislative powers and the Centre has the executive competence to notify a community as a minority under Section 2(c) of the National Commission for Minorities Act of 1992.

    Article 29: It provides that any section of the citizens residing in any part of India having a distinct language, script, or culture of its own, shall have the rights of minorities in India to conserve the same. Article 29 is applied to both minorities (religious minorities in India and Linguistic minorities in India) and also the majority. It also includes – rights of minorities in India to agitate for the protection of language.

    Article 30: All minorities shall have the rights of minorities in India to establish and administer educational institutions of their choice. Article 30 recognises only Religious minorities in India and Linguistic minorities in India (not the majority). It includes the rights of minorities in India to impart education to their children in their own language.

    Article 350-B: Originally, the Constitution of India did not make any provision with respect to the Special Officer for Linguistic minorities in India. However, the 7th Constitutional Amendment Act, 1956 inserted Article 350-B in the Constitution. It provides for a Special Officer for Linguistic Minorities appointed by the President of India. It would be the duty of the Special Officer to investigate all matters relating to the safeguards provided for linguistic minorities under the Constitution.

     

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  • How is the President of India Elected?

    The presidential polls are expected to be held in July to decide on the successor of President Ram Nath Kovind, who will complete his term on July 24, 2022.

    The President of India

    • The President of India is recognised as the first citizen of the country and the head of the state.
    • The elected President of India is a part of the Union Executive along with several other members of the parliament including the Prime Minister, Attorney-General of India and the Vice – president.

    Electing the President

    • The provisions of the election of the President are laid down in Article 54 of the Constitution of India.
    • The Presidential and Vice-Presidential Election Act 1952 led to the establishment of this Constitutional provision.

    Qualifications to become the President of India

    The qualification of be the President of India are given below:

    • He/ She must be an Indian citizen
    • A person must have completed the age of 35.
    • A person must be qualified for election as a member of the House of the People.
    • Must not hold a government (central or state) office of profit
    • A person is eligible for election as President if he/she is holding the office of President or Vice-President.

    Actual course of election

    • The President of India is elected indirectly by an Electoral College following the system of proportional representation utilizing a single transferable vote system and secret ballots.
    • MPs and MLAs vote based on parity and uniformity values.

    Electoral College composition-

    (1) Legislative Assemblies of the States:

    • According to the provision of Article 333, every state’s Legislative Assembly must consist of not less than 60 members but not more than 500 members.

    (2) Council of States:

    • 12 members are nominated by the President of India based on skills or knowledge in literature, arts, science, and social service to act as the members of the Council of States.
    • In total, 238 represent act as representatives from both the States and Union Territories.

    (2) House of the People:

    • The composition of the House of People consists of 530 members (no exceeding) from the state territorial constituencies.
    • They are elected through direct election.
    • The President further elects 20 more members (no exceeding) from the Union Territories.

    Uniformity in the scale of representation of states

    To maintain the proportionality between the values of the votes, the following formula is used:

    Value of vote of an MLA= total no. of the population of the particular state/ number of elected MLAs of that state divided by 1000.

    Single vote system

    • During the presidential election, one voter can cast only one vote.
    • While the MLAs vote may vary state to state, the MPs vote always remain constant.

    MPs and MLAs vote balance

    • The number of the total value of the MPs votes must equal the total value of the MLAs to maintain the State and the Union balance.

    Quotas:

    • The candidate reaching the winning quota or exceeding it is the winner.
    • The formula sued is ‘Winning quota total number of poll/ no.of seats + 1’.

    Voters’ preference:

    • During the presidential election, the voter casts his vote in favor of his first preferred candidate.
    • However, in case the first preference candidate does not touch the winning quota, the vote automatically goes to the second preference.
    • The first preferred candidate with the lowest vote is eliminated and the votes in his/her favor are transferred to the remaining candidates.

    Why need Proportional representation?

    • The President of India is elected through proportional representation using the means of the single transferable vote (Article 55(3)).
    • It allows the independent candidates and minority parties to have the chance of representation.
    • It allows the practice of coalition with many voters under one government.
    • This system ensures that candidates who are elected don’t represent the majority of the electorate’s opinion.

    Why is President indirectly elected?

    If Presidents were to be elected directly, it would become very complicated.

    • It would, in fact, be a disaster because the public doesn’t have the absolute clarity of how the president-ship runs or if the candidate fits the profile of a president.
    • Another reason why the direct election system isn’t favorable is that the candidate running for the president’s profile will have to campaign around the country with the aid of a political party.
    • And, this will result in a massive political instability.
    • Moreover, it would be difficult and impossible for the government to hand out election machinery (given the vast population of India).
    • This will cost the government financially, and may end up affecting the economy as well.
    • The indirect election system is a respectable system for the First Man of India (rightly deserving).
    • The system/method of indirect electing of the president also allows the states to maintain neutrality and minimize hostility.

     

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  • What is Reasonable Accommodation Principle?

    The Karnataka High Court decision effectively upheld the denial of entry to students wearing the hijab. The court rejected an argument in support of permitting Muslim girls wearing head-scarves that was based on the principle of ‘reasonable accommodation’.

    What is Reasonable Accommodation?

    • ‘Reasonable accommodation’ is a principle that promotes equality, enables the grant of positive rights and prevents discrimination based on disability, health condition or personal belief.
    • Its use is primarily in the disability rights sector.
    • The provision plays a major role in addressing these barriers and thus contributes to greater workplace equality, diversity and inclusion.

    Article 2 of the UN Convention on the Rights of People with Disabilities (UNCRPD) defines:

    • Reasonable accommodation is “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms”.

    International Labour Organization (ILO), in its recommendation on HIV/AIDS and the world of work, defines:

    • It is “any modification or adjustment to a job or to the workplace that is reasonably practicable and enables a person living with HIV or AIDS to have access to, or participate or advance in, employment”.

    How does the principle work?

    • The general principle is that reasonable accommodation should be provided, unless some undue hardship is caused by such accommodation.
    • A modified working environment, shortened or staggered working hours, additional support from supervisory staff and reduced work commitments are ways in which accommodation can be made.
    • Suitable changes in recruitment processes — allowing scribes during written tests or sign language interpreters during interviews — will also be a form of accommodation.

    What is the legal position on this in India?

    • In India, the Rights of People with Disabilities Act, 2016, defines ‘reasonable accommodation’ as “necessary and appropriate modification and adjustments, without imposing a disproportionate or undue burden in a particular case, to ensure to PwD the enjoyment or exercise of rights equally with others”.
    • The definition of ‘discrimination’ in Section 2(h) includes ‘denial of reasonable accommodation’.
    • In Section 3, which deals with equality and non-discrimination, sub-section (5) says: “The appropriate Government shall take necessary steps to ensure reasonable accommodation for persons with disabilities.”

    Judicial interpretation of Reasonable Accommodation

    • In Jeeja Ghosh and Another v. Union of India and Others (2016), the Supreme Court, awarded a compensation of ₹10 lakh to a passenger with cerebral palsy who was evicted from a flight after boarding.
    • It said: “Equality not only implies preventing discrimination …, but goes beyond in remedying discrimination against groups suffering systematic discrimination in society.
    • In concrete terms, it means embracing the notion of positive rights, affirmative action and reasonable accommodation.
    • The Supreme Court elaborated on the concept in Vikash Kumar v. UPSC (2021).
    • This was a case in which the court allowed the use of a scribe in the Union Public Service Commission examination for a candidate with dysgraphia, or writer’s cramp.
    • It said failure to provide reasonable accommodation amounts to discrimination.

    Context to the recent K’taka verdict

    • In the recent Karnataka verdict on wearing the hijab, the High Court did not accept the argument for allowing minor variations to the uniform to accommodate personal religious belief.
    • The HC meant that the court did not favour making any change or adjustment to the rule that could have enabled the students to maintain their belief or practice even while adhering to the uniform rule.
    • The appeal against the verdict in the Supreme Court provides an opportunity to see if the concept can be used in the realm of belief and conscience too.

     

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  • Government seeks law on Rights of Foreigners

    The Union government has urged the Supreme Court to help lay down a law with a “long–lasting” implication for the country on the subject of Foreigners’ Right to approach local courts for relief after violating their visa conditions.

    Why in news?

    • The government’s request came during the hearing of petitions filed by foreign nationals who were charged with violating COVID-19 guidelines by participating in a religious congregation in New Delhi during peak COVID outbreak.

    Citizens vs. Foreigners Rights

    Fundamental Rights available to both Citizens and Foreigners (except enemy aliens)

    Fundamental Rights Available Only to Citizens of India
    • Article 14 – Equality before the law and equal protection of laws
    • Article 20 – Protection in respect of conviction for offences
    • Article 21 – Protection of life and personal liberty
    • Article 21A – Right to elementary education
    • Article 22 – Protection against arrest and detention in certain cases
    • Article 23 – Prohibition of traffic in human beings and forced labour
    • Article 24 – Prohibition of employment of children in factories etc
    • Article 25 – Freedom of conscience and free profession, practice and propagation of religion
    • Article 26 – Freedom to manage religious affairs
    • Article 27 – Freedom from payment of taxes for promotion of any religion
    • Article 28 – Freedom from attending religious instruction or worship in certain educational institutions
    • Article 15 – Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
    • Article 16 – Equality of opportunity in matters of public employment
    • Article 19 – Protection of six rights related to freedom – (a) of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; and (f) to practice any profession, or to carry on any occupation, trade or business
    • Article 29 – Protection of language, script and culture of minorities
    • Article 30 – Right of minorities to establish and administer educational institutions

     

     

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  • Highlights of the Democracy Report 2022

    A Sweden-based institute has said that India is no longer an ‘electoral democracy’, classifying the country as an ‘electoral autocracy’ instead.

    About the report

    • The study, titled ‘Democracy Report 2022: Autocratisation Changing Nature?’ states that more than twice as many countries are undergoing Autocratisation as are witnessing democratization.
    • The conceptual scheme takes into account not only the electoral dimension (free and fair elections) but also the liberal principle that democracy must protect “individual and minority rights”.
    • The V-Dem report classifies countries into four regime types based on their score in the Liberal Democratic Index (LDI):
    1. Liberal Democracy
    2. Electoral Democracy
    3. Electoral Autocracy and
    4. Closed Autocracy

    What is the report’s methodology?

    • Since key features of democracy, such as, judicial independence, are not directly measurable, and to rule out distortions due to subjective judgments, V-Dem uses aggregate expert judgments.
    • It gathers data from a pool of over 3,700 experts worldwide who provide judgments on different concepts and cases.
    • Leveraging the diverse opinions, the V-Dem’s measurement model algorithmically.

    The Liberal Democratic Index (LDI)

    • The LDI captures both liberal and electoral aspects of a democracy based on 71 indicators that make up the:
    1. Liberal Component Index (LCI): It measures aspects such as protection of individual liberties and legislative constraints on the executive.
    2. Electoral Democracy Index (EDI): It considers indicators that guarantee free and fair elections such as freedom of expression and freedom of association.
    • In addition, the LDI also uses:
    1. Egalitarian Component Index (to what extent different social groups are equal)
    2. Participatory Component Index (health of citizen groups, civil society organisations) and
    3. Deliberative Component Index (whether political decisions are taken through public reasoning focused on common good or through emotional appeals, solidarity attachments, coercion)

    Highlights of the report

    • The democratic gains of the post-Cold War period are eroding rapidly in the last few years.
    • Autocratisation is spreading rapidly, with a record of 33 countries autocratising.
    • The level of democracy enjoyed by the average global citizen in 2021 is down to 1989 levels.
    • While Sweden topped the LDI index, other Scandinavian countries such as Denmark and Norway, along with Costa Rica and New Zealand make up the top five in liberal democracy rankings.

    What does the report say about India?

    • India is one of the top ten ‘autocratisers’ in the world says the report.
    • The report classifies India as an autocracy (‘electoral autocracy’) rather than a democracy, ranking it 93rd on the liberal democracy index, out of 179 countries.
    • The report notes that India is part of a broader global trend of an anti-plural political party driving a country’s Autocratisation.
    • Ranked 93rd in the LDI, India figures in the “bottom 50%” of countries.
    • It has slipped further down in the Electoral Democracy Index, to 100, and even lower in the Deliberative Component Index, at 102.
    • In South Asia, India is ranked below Sri Lanka (88), Nepal (71), and Bhutan (65) and above Pakistan (117) in the LDI.

    Concerns raised by the report

    • (Communal) Polarisation: The report also points out that “toxic levels of polarisation contribute to electoral victories of anti-pluralist leaders and the empowerment of their autocratic agendas”.
    • Rise of political hate speeches: The report states that measures of polarisation of society, political polarisation, and political parties’ use of hate speech tend to systematically rise together to extreme levels.
    • Misinformation as a policy tool: The report identified “misinformation” as a key tool deployed by autocratising governments to sharpen polarisation and shape domestic and international opinion.
    • Repression of civil society and censorship of media: These were other favored tools of autocratising regimes.
    • Declining autonomy of Election bodies: The report also found that decisive autonomy for the electoral management body (EMB) deteriorated in 25 countries.

    Note: The west uses every nook and corner to bully India in all walks of life. This report is an evidence. It ranks India as more autocratic than Pakistan (where democracy is a namesake joke). Credibility of such reports are definitely questionable. But we as an aspirant have to take cognisance of such reports (but not very seriously).

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