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

A ruling party MP from Ladakh has demanded that the region be included in the Sixth Schedule of the Constitution to safeguard land, employment, and cultural identity of the local population.

What is the Sixth Schedule?

• The Sixth Schedule under Article 244 provides for the formation of autonomous administrative divisions — Autonomous District Councils (ADCs).
• ADCs have some legislative, judicial, and administrative autonomy within a state.
• The Sixth Schedule applies to the NE states of Assam, Meghalaya, Mizoram (three Councils each), and Tripura (one Council).

Composition of ADCs

• ADCs have up to 30 members with a term of five years.
• It can make laws, rules and regulations with regard to land, forest, water, agriculture, village councils, health, sanitation, village- and town-level policing, inheritance, marriage and divorce, social customs and mining, etc.
• The Bodoland Territorial Council in Assam is an exception with more than 40 members and the right to make laws on 39 issues.

Why does Ladakh want to be part of the Sixth Schedule?

• Local aspirations: There was much enthusiasm initially, mostly in Leh, after the repeal of Art. 370 which created two new UTs.
• Negligence in erstwhile J&K state: Buddhist-dominated Leh district had long demanded UT status because it felt neglected by the erstwhile state government.
• Denial of Legislature: The enthusiasm waned as it was understood that while the UT of J&K would have a legislature, the UT of Ladakh would not.
• Inadequate representation: The administration of the region is now completely in the hands of bureaucrats with only 1 MP.
• New domicile criteria: The changed domicile policy in Jammu and Kashmir has raised fears in the region about its own land, employment, demography, and cultural identity.
• Statehood demands: A coalition of social, religious, and political representatives in Leh and Kargil has demanded full statehood for Ladakh.

Cultural significance of Ladakh

• Ladakh is historically perceived as a cosmopolitan region with centuries of multiple cultural settings.
• It was an Asian pivot – the people here traversed diverse cultural boundaries and engaged with ideas.

Can Ladakh be included in Sixth Schedule?

• NCST Recommends: In September 2019, the National Commission for Scheduled Tribes recommended the inclusion of Ladakh under the Sixth Schedule.
• Distinct culture: It was predominantly tribal (more than 97%), people from other parts of the country had been restricted from purchasing or acquiring land there, and its distinct cultural heritage needed preservation.

Legal hurdles

• Fifth schedule as an alternative: The Constitution is very clear, Sixth Schedule is for the Northeast. For tribal areas in the rest of the country, there is the Fifth Schedule.
• Exclusive provision for NE: Notably, no region outside the Northeast has been included in the Sixth Schedule.
• Requires Constitutional Amendment: It remains the prerogative of the government. For this, a constitutional amendment is required.

Government’s response in this regard

• The Centre woke up to the anxieties of the region when, a year after the abrogation of Article 370, when all political parties announced a boycott of the LAHDC-Leh elections.
• The political factions in Ladakh were promised “Sixth Schedule-like” protections by the Home Minister.
• The MHA has in Jan announced that a committee under then MoS Home G Kishan Reddy would be formed to address the issues related to language of Ladakh, culture of Ladakh and conservation of land in Ladakh.
• It had assured representatives of Kargil and Leh that the government was committed to look into their concerns.

Try this question from CSP 2015:

Q.The provisions in Fifth Schedule and Sixth Schedule in the Constitution of India are made in order to-

(a) protect the interests of Scheduled Tribes

(b) determine the boundaries between States

(c) determine the powers, authority and responsibilities of Panchayats

(d) protect the interests of all the border States

 

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Law Minister has informed the Parliament that there is no proposal to scrap sedition from the IPC despite severe remarks by the Supreme Court about the chilling effect of the “colonial law” which suppresses the freedoms of ordinary people.

What does Section 124A of the IPC say?

• The section deals with the offence of sedition, a term that covers speech or writing, or any form of visible representation, which brings the government into hatred or contempt, or excites disaffection towards the government, or attempts to do so.
• It is punishable with three years in prison or a life term.
• “Disaffection”, it says, includes disloyalty and feelings of enmity.
• However, it also says expressing disapproval of government measures or actions, with a view to getting them changed by lawful means, without promoting hatred or disaffection or contempt towards the government will not come under this section.

What is its origin?

• Colonial past: Sedition was introduced in the penal code in 1870, a decade after the Indian Penal Code came into force.
• It was a colonial law directed against strong criticism of the British administration.
• Putting curb on Freedom fighters: Its most famous victims included Bal Gangadhar Tilak and Mahatma Gandhi.
• Gandhiji called it “the prince among the political sections of the IPC designed to suppress the liberty of the citizen”.

Is it constitutionally valid?

• Violative of FRs: Two high courts had found it unconstitutional after Independence, as it violated the freedom of speech and expression.
• Reasonable restrictions: The Constitution was amended to include ‘public order’ as one of the ‘reasonable restrictions’ on which free speech could be abridged by law.
• Kedar Nath Case: Thereafter, the Supreme Court, in Kedar Nath Singh v. State of Bihar (1962) upheld its validity.

Why the controversy now?

• Frequent use: In recent times, the resort to this section is seen as disturbingly frequent.
• Curbing dissent: Activists, cartoonists and intellectuals have been arrested under this section, drawing criticism from liberals that it is being used to suppress dissent and silence critics.
• Misuse for propaganda: Authorities and the police who invoke this section defend the measure as a necessary step to prevent public disorder and anti-national activities.
• Irrelevance: Many of them have also been detained under the National Security Act and UAPA.

What is being debated about it?

• Liberals and rights activists have been demanding the scrapping of Section 124A.

• It is argued that the provision is “overbroad”, i.e., it defines the offence in wide terms threatening the liberty of citizens.
• The Law Commission has also called for a reconsideration of the section.
• It has pointed that Britain abolished it more than a decade ago and raised the question of whether a provision introduced by the British to put down the freedom struggle should continue to be law in India.
• Some argue that a presumption of constitutionality does not apply to pre-constitutional laws as those laws have been made by foreign legislature or bodies.

What has the apex court observed?

• Justice D.Y. Chandrachud had flagged the indiscriminate use of the sedition law against people who aired their grievances about the government’s COVID management.
• People have been charged even for seeking help to gain medical access, equipment, drugs and oxygen cylinders, especially during the second wave of the pandemic.
• Justice U.U. Lalit, in his recent judgment, quashed a sedition case against a person for his alleged remarks about the PM and the Union Government.

Way forward

• The time is long past when the mere criticism of governments was sufficient to constitute sedition.
• The right to utter honest and reasonable criticism is a source of strength to a community rather than a weakness, the CJI has recorded.

Try answering this PYQ:

Q.With reference to Rowlatt Satyagraha, which of the following statements is/are correct?

1. The Rowlatt Act was based on the recommendations of the ‘Sedition Committee’.
2. In Rowlatt Satyagraha, Gandhiji tried to utilize the Home Rule League.
3. Demonstrations against the arrival of Simon Commission coincided with Rowlatt Satyagraha.

Select the correct answer using the code given below:

(a) 1 only

(b) 1 and 2 only

(c) 2 and 3 only

(d) 1, 2 and 3

 

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The Union Government has decided to revisit the criteria set out for eligibility for its 10% reservation under the economically weaker sections (EWS) category within a month.

Context

• The decision came after the Supreme Court closely questioned it on how it arrived at the income figure.
• The Supreme Court is considering a case to the implementation of 27% reservation for the Other Backward Classes and 10% for the EWS under the all-India quota for medical admissions.

How was EWS reservation introduced?

• 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.

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.

Way forward

• The per capita income or GDP in all States, 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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The Joint Parliamentary Committee (JPP) on the Personal Data Protection Bill of 2019 is said to have adopted the final draft. The Bill will be tabled in the Winter Session of Parliament.

What is Personal Data?

• Data can be broadly classified into two types: personal and non-personal data.
• Personal data pertains to characteristics, traits or attributes of identity, which can be used to identify an individual.
• Non-personal data includes aggregated data through which individuals cannot be identified.
• For example, while an individual’s own location would constitute personal data; information derived from multiple drivers’ location, which is often used to analyse traffic flow, is non-personal data.

What is Data Protection?

• Data protection refers to policies and procedures seeking to minimise intrusion into the privacy of an individual caused by collection and usage of their personal data.

Why was a bill brought for Personal Data Protection?

• In August 2017, the Supreme Court had held that Privacy is a fundamental right under Article 21 of the Constitution.
• The Court also observed that privacy of personal data and facts is an essential aspect of the right to privacy.
• In July 2017, a Committee of Experts, chaired by Justice BN Srikrishna, was set up to examine various issues related to data protection in India.
• The committee submitted its report, along with a Draft Personal Data Protection Bill, 2018 to the Ministry of Electronics and Information Technology in July 2018.

How is personal data regulated currently?

• Currently, the usage and transfer of personal data of citizens is regulated by the Information Technology (IT) Rules, 2011, under the IT Act, 2000.
• The rules hold the companies using the data liable for compensating the individual, in case of any negligence in maintaining security standards while dealing with the data.

Issues with IT Rules, 2011

• The IT rules were a novel attempt at data protection at the time they were introduced but the pace of development of digital economy has shown its shortcomings.
• For instance, (i) the definition of sensitive personal data under the rules is narrow, and (ii) some of the provisions can be overridden by a contract.
• Further, the IT Act applies only to companies, not to the government.

What does the Personal Data Protection Bill provide?

• Collection and storage: The bill regulate personal data related to individuals, and the processing, collection and storage of such data.
• Data Principal: Under the bill, a data principal is an individual whose personal data is being processed.
• Data fiduciary: The entity or individual who decides the means and purposes of data processing is known as data fiduciary.
• Data processing: The Bill governs the processing of personal data by both government and companies incorporated in India.
• Data localization: It also governs foreign companies, if they deal with personal data of individuals in India.
• General consent: The Bill provides the data principal with certain rights with respect to their personal data. Any processing of personal data can be done only on the basis of consent given by data principal.
• Data Protection Authority: To ensure compliance with the provisions of the Bill, and provide for further regulations with respect to processing of personal data of individuals, the Bill sets up a DPA.

Issues with the PDP Bill

• Exemptions to the govt: Section 35 of the bill permits the Central Government to exempt any agency of the Government from the provisions of the law.
• No reasonable exemptions: There is no sufficient reason for government agencies to be exempted from basic provisions of the Bill.
• Easy breach: Though this would be subject to procedures, safeguards, and oversight mechanisms to be prescribed by the Government.
• Executive hegemony: There is no scope for oversight over the executive’s decision to issue such an order.
• Arbitrary and intrusive: As demonstrated by the Pegasus case, the current frameworks for protecting citizens from arbitrary and intrusive State action lack robustness.

Why is the state given exemption?

• Biggest needy of Data: The State is one of the biggest processors of data, and has a unique ability to impact the lives of individuals.
• Welfare objectives: It has a monopoly over coercive powers as well have the obligation to provide welfare and services.

Issues with Exemption to State

• Grounds of expediency: the use of this provision on grounds of expediency is an extremely low bar for the Government to meet.
• Non requirement for exemption order: There is no requirement for an exemption order to be proportionate to meeting a particular State function.
• No oversight on executive actions: There is no scope for oversight over the executive’s decision to issue such an order or any safeguards prescribed for this process.
• State surveillance: Section 36(a) of the Bill provides for an exception where personal data is being processed against criminal investigation. This provision could therefore encourage vigilantism or enable privatized surveillance.

Best practices followed across the world

• The European GDPR (General Data Protection Regulation) is commonly seen as the pinnacle of data protection regulation worldwide.
• The EU law has in place a separate law that deals with the processing of personal data by law enforcement agencies.
• UK’s Data Protection Act dedicates Part 3 that liberalises certain obligations while at the same time ensuring that data protection rights are also protected.

Way forward

• Balancing privacy interests with those of public needs (such as that of State security) is a difficult task.
• This should undergo rigorous consultations in Parliament taking into confidence all stakeholders.
• Once debated in Parliament, one can only hope that adequate time and attention is given to finding a better balance between competing interests.

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