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

  • Hate speech: SC seeks response from govt.

    The Supreme Court has asked the Ministry of Home Affairs (MHA) and the police to respond to petitions that people accused of delivering hate speeches at a religious conference in Haridwar have not been arrested yet.

    What is ‘Hate Speech’?

    • There is no specific legal definition of ‘hate speech’.
    • The Law Commission of India, in its 267th Report, says: “Hate speech generally is an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like …
    • Thus, hate speech is any word written or spoken, signs, visible representations within the hearing or sight of a person with the intention to cause fear or alarm, or incitement to violence.”
    • In general, hate speech is considered a limitation on free speech that seeks to prevent or bar speech that exposes a person or a group or section of society to hate, violence, ridicule or indignity.

    How is it treated in Indian law?

    • Provisions in law criminalize speeches, writings, actions, signs and representations that foment violence and spread disharmony between communities and groups and these are understood to refer to ‘hate speech’.
    • Sections 153A and 505 of the Indian Penal Code are generally taken to be the main penal provisions that deal with inflammatory speeches and expressions that seek to punish ‘hate speech’.

    [I] Section 153A:

    • Promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony’, is an offence punishable with three years’ imprisonment.

    [II] Section 505:

    505(1): Statements conducing to public mischief

    • The statement, publication, report or rumour that is penalized under Section 505(1) should be one that promotes mutiny by the armed forces, or causes such fear or alarm that people are induced to commit an offence against the state or public tranquility.
    • This attracts a jail term of up to three years.

    505(2): It is an offence to make statements creating or promoting enmity, hatred or ill-will between classes.

    505(3): Same offence will attract up to a five-year jail term if it takes place in a place of worship, or in any assembly engaged in religious worship or religious ceremonies.

    What has the Law Commission proposed?

    The Law Commission has proposed that separate offences be added to the IPC to criminalize hate speech quite specifically instead of being subsumed in the existing sections concerning inflammatory acts and speeches.

    [A] Inserting two sections

    • It has proposed that two new sections, Section 153C and Section 505A, be added.

    Section 153C

    It is an offence if anyone-

    • Uses gravely threatening words, spoken or written or signs or visible representations, with the intention to cause fear or alarm OR
    • Advocates hatred that causes incitement to violence, on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe

    Section 505A

    • It proposes to criminalize words, or display of writing or signs that are gravely threatening or derogatory, within the hearing or sight of a person, causing fear or alarm or, with intent to provoke the use of unlawful violence against that person or another”.

    [B] Imprisonment

    • Section 153C: two-year jail term for this and/or a fine of ₹5,000 or both
    • Section 505A: prison term of up to one year and/or a fine up to ₹5,000

    Other committees’ recommendations

    • Similar proposals to add sections to the IPC to punish acts and statements that promote racial discrimination or amount to hate speech have been made by the M.P. Bezbaruah Committee and the T.K. Viswanathan Committee.
    • At present, the Committee for Reforms in Criminal Laws, which is considering more comprehensive changes to criminal law, is examining the issue of having specific provisions to tackle hate speech.

    Why regulate hate speech?

    • Creates social divide: Individuals believe in stereotypes that are ingrained in their minds and these stereotypes lead them to believe that a class or group of persons are inferior to them and as such cannot have the same rights as them.
    • Threat to peaceful co-existence: The stubbornness to stick to a particular ideology without caring for the right to co-exist peacefully adds further fuel to the fire of hate speech.

    Issues in regulating hate speech

    • Powers to State: Almost every regulation of speech, no matter how well-intentioned, increases the power of the state.
    • Hate speeches are Political: The issue is fundamentally political and we should not pretend that fine legal distinctions will solve the issue.
    • Legal complications: An over-reliance on legal instruments to solve fundamentally social and political problems often backfires.

    Way ahead

    • Subjects like hate speeches become a complex issue to deal with, in a country like India which is very diverse, as it was very difficult to differentiate between free and hate speech.
    • There are many factors that should be considered while restraining speeches like strong opinions, offensive comments towards certain communities, the effect on values like dignity, liberty and equality.
    • We all have to work together and communicate efficiently for our country to be a healthy place to live in.

     

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  • MHA seeks more time to frame CAA rules

    The Ministry of Home Affairs (MHA) has sought another extension from parliamentary committees to frame the rules of the Citizenship (Amendment) Act (CAA), 2019.

    What is Citizenship Amendment Act (CAA), 2019?

    • The act is sought to amend the Citizenship Act, 1955 to make Hindu, Sikh, Buddhist, Jain, Parsi, and Christian illegal migrants from Afghanistan, Bangladesh, and Pakistan, eligible for citizenship of India.
    • In other words, it intends to make it easier for non-Muslim immigrants from India’s three Muslim-majority neighbours to become citizens of India.
    • Under The Citizenship Act, 1955, one of the requirements for citizenship by naturalization is that the applicant must have resided in India during the last 12 months, as well as for 11 of the previous 14 years.
    • The amendment relaxes the second requirement from 11 years to 6 years as a specific condition for applicants belonging to these six religions, and the aforementioned three countries.
    • It exempts the members of the six communities from any criminal case under the Foreigners Act, 1946 and the Passport Act, 1920 if they entered India before December 31, 2014.

    Key feature: Defining illegal migrants

    • Illegal migrants cannot become Indian citizens in accordance with the present laws.
    • Under the CAA, an illegal migrant is a foreigner who: (i) enters the country without valid travel documents like a passport and visa, or (ii) enters with valid documents, but stays beyond the permitted time period.
    • Illegal migrants may be put in jail or deported under the Foreigners Act, 1946 and The Passport (Entry into India) Act, 1920.

    Exceptions

    • The Bill provides that illegal migrants who fulfil four conditions will not be treated as illegal migrants under the Act.  The conditions are:
    1. they are Hindus, Sikhs, Buddhists, Jains, Parsis or Christians;
    2. they are from Afghanistan, Bangladesh or Pakistan;
    3. they entered India on or before December 31, 2014;
    4. they are not in certain tribal areas of Assam, Meghalaya, Mizoram, or Tripura included in the Sixth Schedule to the Constitution, or areas under the “Inner Line” permit, i.e., Arunachal Pradesh, Mizoram, and Nagaland.

    Controversy with the Act

    • Country of Origin: The Act classifies migrants based on their country of origin to include only Afghanistan, Pakistan and Bangladesh.
    • Other religious minorities ignored: It is unclear why illegal migrants from only six specified religious minorities have been included in the Act.
    • Defiance of purpose: India shares a border with Myanmar, which has had a history of persecution of a religious minority, the Rohingya Muslims.
    • Date of Entry: It is also unclear why there is a differential treatment of migrants based on their date of entry into India, i.e., whether they entered India before or after December 31, 2014.

    Way forward

    • India is a constitutional democracy with a basic structure that assures a secure and spacious home for all Indians.
    • Being partitioned on religious grounds, India has to undertake a balancing act for protecting the religious minorities in its neighbourhood.
    • These minorities are under constant threat of persecution and vandalism.
    • India needs to balance the civilization duties to protect those who are prosecuted in the neighbourhood.

     

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  • Economically Weaker Sections (EWS): As defined by Govt Panel

    The government has accepted the report by a committee under the Ministry of Social Justice and Empowerment, which examined the income criteria for determining who are to be included among the EWS.

    EWS Quota: A Backgrounder

    • On July 29 last year, the Centre had issued a notification for implementing 10% reservation for EWS along with 27% for OBC within these courses.
    • Following the petitions, the Supreme Court has stayed counseling for admission until the matter is decided.
    • The NEET notification followed the same criteria for determining EWS as mentioned in a notification from the Department of Personnel and Training (DoPT).

    Inception of EWS Quota

    • EWS reservation was granted based on the recommendations of a commission headed by Major General (retd) S R Sinho.
    • The Commission for Economically Backward Classes was constituted by the then UPA government in 2005, and submitted its report in July 2010.
    • Based on this, the Cabinet in January 2019 decided to amend the Constitution (103rd Amendment) to provide reservation to EWS.

    Prime basis: Income criteria

    • The criteria include a Rs 8 lakh income ceiling for inclusion in EWS — which is the same as the criterion for deciding the “creamy layer” among the OBCs (those who are not in government).
    • The notification said income shall include income from all sources i.e. salary, agriculture, business, profession, etc for the financial year prior to the year of application.
    • Another criterion is that a person whose family owns or possesses 5 acres of agricultural land or more will be excluded from EWS.

    Why was the new committee constituted?

    • The committee aimed to revisit the criteria for determining the economically weaker sections in terms of the provisions of the explanation to Article 15 of the Constitution.
    • It followed the Supreme Court’s observation that the income criterion for determining EWS was “arbitrary”.
    • The Supreme Court is presently hearing a number of petitions, including a special leave petition filed by the Centre against a Madras HC order on EWS and OBC reservation in the all-India quota for NEET.

    Key recommendations

    • The report says that the “threshold of Rs 8 lakh of annual family income, in the current situation, seems reasonable for determining EWS”.
    • The committee has recommended that EWS may, however, exclude, irrespective of income, a person whose family has 5 acres of agricultural land and above.
    • The committee has removed the criteria that excluded some categories from EWS:
    1. Owners of residential properties of 1,000 sq ft and above
    2. Residential plots of 100 sq yards and above in notified municipalities
    3. Residential plots of 200 sq yards and above in areas other than the notified municipalities

    How does it address the questions raised by the Supreme Court?

    • The Supreme Court has earlier questioned the basis of Rs 8 lakh criteria and termed it arbitrary without any substantiation.
    • It asserted that this criteria is similar to that of Creamy Layer in OBCs.

    What did the committee say on Income Criteria?

    • The committee’s report now states the two sets of criteria are significantly different despite both using the Rs 8 lakh cut-off and that the criteria for the EWS.
    • EWS criteria are much more stringent than those for the OBC creamy layer.
    • The report justifies this income limit, stating that Rs 8 lakh cut off also has a link with the income tax exemption limit.
    • It would, therefore, be logical to use the income tax exemption limit to determine the threshold for EWS.

    Tap here to read more about:

    [Sansad TV] Perspective: Defining EWS

     

     

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  • Uniform Civil Code

    The Centre has informed the Delhi HC that it was awaiting the report of the Law Commission of India, which is examining various issues relating to the Uniform Civil Code.

    What is a Uniform Civil Code?

    • A Uniform Civil Code is one that would provide for one law for the entire country, applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption etc.
    • Article 44, one of the directive principles of the Constitution lays down that the state shall endeavour to secure a Uniform Civil Code for the citizens throughout the territory of India.
    • These, as defined in Article 37, are not justiciable (not enforceable by any court) but the principles laid down therein are fundamental in governance.

    Why need UCC?

    • UCC would provide equal status to all citizens
    • It would promote gender parity in Indian society.
    • UCC would accommodate the aspirations of the young population who imbibe liberal ideology.
    • Its implementation would thus support the national integration.

    Hurdles to UCC implementation

    • There are practical difficulties due to religious and cultural diversity in India.
    • The UCC is often perceived by the minorities as an encroachment on religious freedom.
    • It is often regarded as interference of the state in personal matters of the minorities.
    • Experts often argue that the time is not ripe for Indian society to embrace such UCC.

     UCC vs. Right to Freedom of Religion

    • Article 25 lays down an individual’s fundamental right to religion;
    • Article 26(b) upholds the right of each religious denomination or any section thereof to “manage its own affairs in matters of religion”;
    • Article 29 defines the right to conserve distinctive culture.
    • An individual’s freedom of religion under Article 25 is subject to “public order, health, morality” and other provisions relating to FRs, but a group’s freedom under Article 26 has not been subjected to other FRs.
    • In the Constituent Assembly, there was division on the issue of putting UCC in the fundamental rights chapter. The matter was settled by a vote.
    • By a 5:4 majority, the fundamental rights sub-committee headed by Sardar Patel held that the provision was outside the scope of FRs and therefore the UCC was made less important.

    Enacting and Enforcing UCC

    • Fundamental rights are enforceable in a court of law.
    • While Article 44 uses the words “state shall endeavour”, other Articles in the ‘Directive Principles’ chapter use words such as “in particular strive”; “shall in particular direct its policy”; “shall be obligation of the state” etc.
    • Article 43 mentions “state shall endeavour by suitable legislation” while the phrase “by suitable legislation” is absent in Article 44.
    • All this implies that the duty of the state is greater in other directive principles than in Article 44.

    What are more important — fundamental rights or directive principles?

    • There is no doubt that fundamental rights are more important.
    • The Supreme Court held in Minerva Mills (1980): Indian Constitution is founded on the bed-rock of the balance between Parts III (Fundamental Rights) and IV (Directive Principles).
    • To give absolute primacy to one over the other is to disturb the harmony of the Constitution.
    • Article 31C inserted by the 42nd Amendment in 1976, however, lays down that if a law is made to implement any directive principle, it cannot be challenged on the ground of being violative of the FRs under Articles 14 and 19.

    What about Personal Laws?

    • Citizens belonging to different religious and denominations follow different property and matrimonial laws which are an affront to the nation’s unity.
    • If the framers of the Constitution had intended to have a UCC, they would have given exclusive jurisdiction to Parliament in respect of personal laws, by including this subject in the Union List.
    • But “personal laws” are mentioned in the Concurrent List.

    Various customary laws

    • All Hindus of the country are not governed by one law, nor are all Muslims or all Christians.
    • Muslims of Kashmir were governed by a customary law, which in many ways was at variance with Muslim Personal Law in the rest of the country and was, in fact, closer to Hindu law.
    • Even on registration of marriage among Muslims, laws differ from place to place.
    • In the Northeast, there are more than 200 tribes with their own varied customary laws.
    • The Constitution itself protects local customs in Nagaland. Similar protections are enjoyed by Meghalaya and Mizoram.
    • Even reformed Hindu law, in spite of codification, protects customary practices.

    Minority opinion in the Constituent Assembly

    • Some members sought to immunize Muslim Personal Law from state regulation.
    • Mohammed Ismail, who thrice tried unsuccessfully to get Muslim Personal Law exempted from Article 44, said a secular state should not interfere with the personal law of people.
    • B Pocker Saheb said he had received representations against a common civil code from various organisations, including Hindu organisations.
    • Hussain Imam questioned whether there could ever be uniformity of personal laws in a diverse country like India.
    • B R Ambedkar said “no government can use its provisions in a way that would force the Muslims to revolt”.
    • Alladi Krishnaswami, who was in favour of a UCC, conceded that it would be unwise to enact UCC ignoring strong opposition from any community.
    • Gender justice was never discussed in these debates.

     Conclusion

    • Article 44 of the Constitution creates an obligation upon the State to endeavour to secure for citizens a Uniform Civil Code throughout the country.
    • The purpose behind UCC is to strengthen the object of “Secular Democratic Republic” as enshrined in the Preamble of the Constitution.
    • This provision is provided to effect integration of India by bringing communities on the common platform on matters which are at present governed by diverse personal laws.
    • Hence it UCC should be enforced taking into confidence all the sections of Indian society.

     

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  • ₹8 lakh income ‘reasonable’ cap for EWS quota, Centre tells SC

    A government committee report in the Supreme Court has said that “income” is a “feasible criterion” for defining the “Economically Weaker Sections” (EWS) in society, and the annual family income of ₹8 lakh is a “reasonable” threshold to determine EWS.

    Centre’s Argument: Strict criteria for EWS

    • The income criterion for EWS was “more stringent” than the one for the OBC creamy layer.
    • EWS’s criteria relates to the financial year prior to the year of application.
    • On the other side, income criterion for the creamy layer in OBC category is applicable to gross annual income for three consecutive years.

    EWS Quota: A backgrounder

    • The 10% reservation was introduced through the 103rd Constitution Amendment and enforced in January 2019.
    • It added Clause (6) to Article 15 to empower the Government to introduce special provisions for the EWS among citizens except those in the classes that already enjoy reservation.
    • It allows reservation in educational institutions, both public and private, whether aided or unaided, excluding those run by minority institutions, up to a maximum of 10%.
    • It also added Clause (6) to Article 16 to facilitate reservation in employment.
    • The new clauses make it clear that the EWS reservation will be in addition to the existing reservation.

    Significance of the quota

    • The Constitution initially allowed special provisions only for the socially and educationally backward classes.
    • The Government introduced the concept of EWS for a new class of affirmative action program for those not covered by or eligible for the community-based quotas.

    What are the criteria to identify the section?

    • The main criterion is that those above an annual income limit of ₹8 lakh are excluded.
    • It accounts income from all sources such as salary, business, agriculture and profession for the financial year prior to the application of the family, applicants, their parents, siblings and minor children.
    • Possession of any of these assets, too, can take a person outside the EWS pool:
    1. Five or more acres of agricultural land
    2. A residential flat of 1,000 sq.ft. and above
    3. A residential plot of 100 square yards and above in notified municipalities, and
    4. A residential plot of 200 square yards and above in other areas

    What are the court’s questions about the criteria?

    • Reduction within general category: The EWS quota remains a controversy as its critics say it reduces the size of the open category, besides breaching the 50% limit on the total reservation.
    • Arbitrariness over income limit: The court has been intrigued by the income limit being fixed at ₹8 lakh per year. It is the same figure for excluding the ‘creamy layer’ from OBC reservation benefits.
    • Socio-economic backwardness: A crucial difference is that those in the general category, to whom the EWS quota is applicable, do not suffer from social or educational backwardness, unlike those classified as the OBC.
    • Metropolitan criteria: There are other questions as to whether any exercise was undertaken to derive the exceptions such as why the flat criterion does not differentiate between metropolitan and non-metropolitan areas.
    • OBC like criteria: The question the court has raised is that when the OBC category is socially and educationally backward and, therefore, has additional impediments to overcome.
    • Not based on relevant data: In line with the Supreme Court’s known position that any reservation or norms for exclusion should be based on relevant data.
    • Breaches reservation cap: There is a cap of 50% on the reservation as ruled in the Indira Sawhney Case. The principle of balancing equality ordains reservation.

    What is the current status of the EWS quota?

    • The reservation for the EWS is being implemented by the Union Government for the second year now.
    • Recruitment test results show that the category has a lower cut-off mark than the OBC, a point that has upset the traditional beneficiaries of reservation based on caste.
    • The explanation is that only a small number of people are currently applying under the EWS category — one has to get an income certificate from the revenue authorities — and therefore the cut-off is low.
    • However, when the number picks up over time, the cut-off marks are expected to rise.

    Practical issues with EWS Quota

    The EWS quota will come in for judicial scrutiny soon. But it’s not only a matter for the judiciary, India’s Parliament should revisit the law too.

    • Hasty legislation: This law was passed in haste. It was passed in both the houses within 48 hours, and got presidential approval the next day.
    • Minority appeasement: It is widely argued that the law was passed to appease a certain section of upper-caste society and to suppress the demands for minority reservations.
    • Morality put to question: Imagine! A constitutional amendment has been made with few hours of deliberation and without consultation of the targeted group. This is certainly against constitutional morality and propriety.
    • Substantial backing is missing: This amendment is based on a wrong or unverified premise. This is at best a wild guess or a supposition because the government has not produced any data to back this point.
    • Under-reservation of Backward Classes: The assertion is based on the fact that we have different data to prove the under-representation of SC, ST, OBCs. That implies that ‘upper’ castes are over-represented (with 100 minus reservation).
    • Rationale of 10%: There is one more problem in this regard. The SC and ST quota is based on their total population. But the rationale for the 10 per cent quota was never discussed.
    • Principle of Equality: Economic backwardness is quite a fluid identity. It has nothing to do with historic wrongdoings and liabilities caused to the Backward Classes.

    Way forward

    • Preserving the merit: We cannot rule out the sorry state of economic backwardness hampering merit in our country .
    • Rational critera: There has to be collective wisdom to define and measure the economic weakness of certain sections of the society in order to shape the concept of economic justice.
    • Judicial guidance: Judicial interpretation will pave the wave forward for deciding the criterion for EWS Quota.
    • Targetted beneficiaries. The centre needs to resort to more rational criteria for deciding the targeted beneficiary of this reservation system. Caste Census data can be useful in this regard.
    • Income study: The per capita income or GDP or the difference in purchasing power in the rural and urban areas, should be taken into account while a single income limit was formulated for the whole country.

     

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  • Punishing Hate Speech

    A recent religious conclave has witnessed inflammatory and provocative speeches by some religious proponents hinting at a Myanmar-type ‘minority cleansing campaign’.

    What is ‘Hate Speech’?

    • There is no specific legal definition of ‘hate speech’.
    • The Law Commission of India, in its 267th Report, says: “Hate speech generally is an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like …
    • Thus, hate speech is any word written or spoken, signs, visible representations within the hearing or sight of a person with the intention to cause fear or alarm, or incitement to violence.”
    • In general, hate speech is considered a limitation on free speech that seeks to prevent or bar speech that exposes a person or a group or section of society to hate, violence, ridicule or indignity.

    How is it treated in Indian law?

    • Provisions in law criminalize speeches, writings, actions, signs and representations that foment violence and spread disharmony between communities and groups and these are understood to refer to ‘hate speech’.
    • Sections 153A and 505 of the Indian Penal Code are generally taken to be the main penal provisions that deal with inflammatory speeches and expressions that seek to punish ‘hate speech’.

    [I] Section 153A:

    • Promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony’, is an offence punishable with three years’ imprisonment.

    [II] Section 505:

    505(1): Statements conducing to public mischief

    • The statement, publication, report or rumour that is penalized under Section 505(1) should be one that promotes mutiny by the armed forces, or causes such fear or alarm that people are induced to commit an offence against the state or public tranquility.
    • This attracts a jail term of up to three years.

    505(2): It is an offence to make statements creating or promoting enmity, hatred or ill-will between classes.

    505(3): Same offence will attract up to a five-year jail term if it takes place in a place of worship, or in any assembly engaged in religious worship or religious ceremonies.

    What has the Law Commission proposed?

    The Law Commission has proposed that separate offences be added to the IPC to criminalize hate speech quite specifically instead of being subsumed in the existing sections concerning inflammatory acts and speeches.

    [A] Inserting two sections

    • It has proposed that two new sections, Section 153C and Section 505A, be added.

    Section 153C

    It is an offence if anyone-

    • Uses gravely threatening words, spoken or written or signs or visible representations, with the intention to cause fear or alarm OR
    • Advocates hatred that causes incitement to violence, on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe

    Section 505A

    • It proposes to criminalize words, or display of writing or signs that are gravely threatening or derogatory, within the hearing or sight of a person, causing fear or alarm or, with intent to provoke the use of unlawful violence against that person or another”.

    [B] Imprisonment

    • Section 153C: two-year jail term for this and/or a fine of ₹5,000 or both
    • Section 505A: prison term of up to one year and/or a fine up to ₹5,000

    Other committees’ recommendations

    • Similar proposals to add sections to the IPC to punish acts and statements that promote racial discrimination or amount to hate speech have been made by the M.P. Bezbaruah Committee and the T.K. Viswanathan Committee.
    • At present, the Committee for Reforms in Criminal Laws, which is considering more comprehensive changes to criminal law, is examining the issue of having specific provisions to tackle hate speech.

    Why regulate hate speech?

    • Creates social divide: Individuals believe in stereotypes that are ingrained in their minds and these stereotypes lead them to believe that a class or group of persons are inferior to them and as such cannot have the same rights as them.
    • Threat to peaceful co-existence: The stubbornness to stick to a particular ideology without caring for the right to co-exist peacefully adds further fuel to the fire of hate speech.

    Issues in regulating hate speech

    • Powers to State: Almost every regulation of speech, no matter how well-intentioned, increases the power of the state.
    • Hate speeches are Political: The issue is fundamentally political and we should not pretend that fine legal distinctions will solve the issue.
    • Legal complications: An over-reliance on legal instruments to solve fundamentally social and political problems often backfires.

    What lies ahead?

    • Subjects like hate speeches become a complex issue to deal with, in a country like India which is very diverse, as it was very difficult to differentiate between free and hate speech.
    • There are many factors that should be considered while restraining speeches like strong opinions, offensive comments towards certain communities, the effect on values like dignity, liberty and equality.
    • We all have to work together and communicate efficiently for our country to be a healthy place to live in.

     

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  • Govt. disagrees with India’s rank in World Press Freedom Index

    The Centre has shown its disagreement with the conclusions drawn by Reporters Without Borders about press freedom in India for various reasons.

    World Press Freedom Index

    • The PFI is an annual ranking of countries compiled and published by Reporters Without Borders since 2002.
    • It is based upon the organization’s own assessment of the countries’ press freedom records in the previous year.
    • It intends to reflect the degree of freedom that journalists, news organizations, and netizens have in each country, and the efforts made by authorities to respect this freedom.
    • It is careful to note that the index only deals with press freedom and does not measure the quality of journalism in the countries it assesses, nor does it look at human rights violations in general.

    India’s ranking

    • India is ranked at 142 out of 180 countries on the World Press Freedom Index 2021.
    • In the South Asian neighborhood, Nepal is at 106, Sri Lanka at 127, Myanmar (before the coup) at 140, Pakistan at 145 and Bangladesh at 152.
    • China is ranked 177, and is only above North Korea at 179 and Turkmenistan at 178.

    What the report said about India

    • Targeting women: It has been highlighted that the “campaigns are particularly violent when the targets are women”.
    • Criminal prosecutions: Often used to gag journalists critical of the authorities.
    • Draconian laws: It termed various Indian laws such as – laws on ‘sedition,’ ‘state secrets’ and ‘national security’, draconian.
    • Curb on freedom of expression: The report has also highlighted the throttling of freedom of expression on social media.
    • Censorship on social media: It specifically mentioned that in India the “arbitrary nature of Twitter’s algorithms also resulted in brutal censorship”

    Reservations held by India

    • India along with many nations has reportedly disgusted the outcomes of this report. It stated that media in India enjoy absolute freedom.
    • The government does not subscribe to its views and country rankings and does not agree to the conclusions drawn by this organization for various reasons:
    1. Non-transparent methodology
    2. Very low sample size
    3. Little or no weightage to fundamentals of democracy
    4. Adoption of a methodology that is questionable and non-transparent
    5. Lack of clear definition of press freedom, among others

    Why is the report biased?

    • The report is a subjective measure computed through the prism of western liberals.
    • It tends to default to a homogenous view of mass media which then facilitates comparison between countries.
    • There are no questions about media ownership or about their economic concentration in private hands.

     

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  • Phrase ‘Anti-national’ not defined in statutes: MHA

    The phrase ‘anti-national’ has not been defined in statutes, the Ministry of Home Affairs (MHA) has informed the Parliament.

    Defining Anti-national Activities

    (1) Unlawful Activities (Prevention) Act  

    • The UAPA is aimed at the prevention of unlawful activities associations in India.
    • Its main objective was to make powers available for dealing with activities directed against the integrity and sovereignty of India.

    (2) Sedition Law

    • Section 124A IPC deals with attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards, the Government established by law in India.
    • This law was enacted by the British colonial government in 1870 with the sole object of suppressing all voices of Indians critical of the government.

     (3) NCRB Reports

    • In 2019, when the National Crime Records Bureau released the annual Crime in India report for year 2017, it included for the first time a new chapter on “Crime Committed by Anti National Elements.”
    • The chapter listed – “North East insurgents, Left Wing Extremists and Terrorists (including Jihadi terrorists)” as the three anti-national elements.

    Attempts for defining

    • There are criminal legislations and various judicial pronouncements deal with unlawful and subversive activities which are detrimental to the unity and integrity of the country.
    • In this regard, it is relevant to mention that the 42nd Constitutional Amendment Act, 1976 inserted in the Constitution Article 31D (during Emergency) which defined “anti-national activity”.
    • This Article 31D was, later, omitted by the 43rd Constitutional Amendment Act, 1977.

    Supreme Court guidelines

    • In the ultimate analysis, the judgment in Kedar Nath (1962) read down Section 124A and held that without incitement to violence or rebellion there is no sedition.
    • It says that ‘only when the words written or spoken etc. which have the pernicious tendency or intention of creating public disorder the law steps in.

    Who maintains the data of such individuals?

    • The onus of maintenance of such data lies with the respective states.
    • ‘Public Order’ and ‘Police’ are State subjects as per the Seventh Schedule of the Constitution.
    • Hence the data about the number of people arrested for indulging in anti-national activities are not maintained centrally.

     

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  • Back in news: Right to be Forgotten

    The Centre has informed the Delhi High Court that the Personal Data Protection Bill 2019 contains provisions related to the ‘right to be forgotten’.

    Right to be Forgotten

    • ‘Right to be forgotten’ is a fairly new concept in India where an individual could seek to remove or delete online posts which may contain an embarrassing picture, video or news articles mentioning them.
    • It comes under the right to privacy which has been held to be a fundamental right by the Supreme Court under Article 21.
    • In 2017, the Right to Privacy was declared a fundamental right by the Supreme Court in its landmark verdict.

    Why in news?

    • The Personal Data Protection Bill 2019 contains provisions related to the doctrine of ‘right to be forgotten’.
    • It highlighted two judgments passed by the Orissa High Court and the Karnataka High Court where they have accepted the doctrine of the ‘right to be forgotten’ as an essential part of the ‘right to privacy’.

    Mention in PDP Bill

    • The PDP bill aims to set out provisions meant for the protection of the personal data of individuals.
    • Clause 20 under Chapter V of this bill titled “Rights of Data Principal” mentions the “Right to be Forgotten.”
    • It states that the “data principal (the person to whom the data is related) shall have the right to restrict or prevent the continuing disclosure of his personal data by a data fiduciary”.
    • A data fiduciary means any person, including the State, a company, any juristic entity, or any individual who alone or in conjunction with others determines the purpose and means of the processing of personal data.

    Implications

    • Under the Right to be forgotten, users can de-link, limit, delete or correct the disclosure of their personal information held by data fiduciaries.

    Other similar provisions

    • Section 69A of the IT Act does provide for removal of “certain unlawful information” from an intermediary platform.
    • It primarily applies to ‘national security and public order related issues’ only.

    Also read:

    Draft Personal Data Protection Bill, 2021

     

     

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  • Conflation between duties and rights

    Context

    There has been growing advocacy for the integration of duty with rights. On Constitution Day last month, many Union Ministers used the occasion to underline this proposal.

    What do rights come with duty mean?

    • It is a basic proposition that all rights come with duties.
    • But those duties are quite distinct from the meaning ascribed to them in the popular discourse.
    • When a person holds a right, she is owed an obligation by a duty-bearer.
    • For example, when citizens are promised a right against discrimination, the government is obliged to ensure that it treats everybody with equal care and concern.
    • Similarly, the guarantee of a right to freedom of speech enjoins the state to refrain from interfering with that liberty.

    Integrating rights with duties

    • Proponents of integration of duty with rights aim to treat otherwise non-binding obligations — the “fundamental duties” as Article 51A describes them on a par with, if not superior to, the various fundamental rights that the Constitution guarantees.
    • In an inversion of the well-known dictum, they see duties, and not rights, as trumps.
    • On Constitution Day last month, many Union Ministers used the occasion to underline this proposal.
    • The government puts forward an idea that our rights ought to be made conditional on the performance of a set of extraneous obligations.

    Issues with the proposal

    • This suggestion is plainly in the teeth of the Constitution’s text, language, and history.
    • To the framers of the Constitution, the very idea of deliberating over whether these rights ought to be provisional, and on whether these rights ought to be made subject to the performance of some alien duty, was against the republic’s vision.
    • Imposing duties a legislative prerogative: The Constitution’s framers saw the placing of mandates on individual responsibilities as nothing more than a legislative prerogative.
    • For example, the legislature could impose a duty on individuals to pay a tax on their income, and this duty could be enforced in a variety of ways.
    • If the tax imposed and the sanctions prescribed were reasonable, the obligations placed on the citizen will be constitutionally valid.
    • In this manner, Parliament and the State legislatures have imposed a plethora of duties — duties to care for the elderly and for children; duties to pay tolls and levies; duties against causing harm to others; duties to treat the environment with care, the list is endless.
    • Against Constitution: What is critical, though, is that these laws cannot make a person’s fundamental right contingent on the performance of a duty that they impose.
    • A legislation that does so will violate the Constitution.

    Background

    • The fundamental duties that are now contained in Article 51A were introduced through the 42nd constitutional amendment.
    • The Swaran Singh Committee, which was set up during the Emergency, and which recommended the insertion of the clause, also suggested that a failure to comply with a duty ought to result in punishment.
    • Ultimately, the amendment was introduced after the binding nature of the clause was removed.
    • In its finally adopted form, Article 51A encouraged citizens to perform several duties.

    Way forward

    • Know the precise nature of duties the rights create: The philosopher Onora O’Neill has argued with some force that we would do well to discuss the precise nature of duties that rights create.
    • Unless we do so, our charters of human rights may not by themselves be enough.
    • For example, we may want to ask ourselves if the promise of a right to free expression imposes on the state something more than a duty to forebear from making an unwarranted restriction on that liberty.
    •  Does it require the state to also work towards creating an equal society where each person finds herself in a position to express herself freely?

    Consider the question “How fundamental duties are related to the fundamental rights in the context of the Indian Constitution? What are the issues with making the enforcement of rights contingent on adhering to the duties?”

    Conclusion

    When we speak about the importance of obligations, it is these questions that must animate our discussions. Should we instead allow the language of fundamental duties to subsume our political debates, we would only be placing in jeopardy the moral principles at the heart of India’s republic.

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