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GS Paper: GS2

  • Unconstitutional Expansion of Delhi’s Government Authority

    Central Idea

    • The recent promulgation of The Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 by the President of India has sparked a debate concerning the scope of the Supreme Court’s verdict and the constitutionality of the ordinance.

    Court’s Verdict and interpretations

    • In interpreting Article 239AA(3)(a), the Court ruled:
    1. It determined that the Legislative Assembly of the NCT Delhi has the authority with the exception
    2. The Court clarified that the executive power of the NCTD is co-extensive with its legislative power, encompassing all matters within its legislative jurisdiction.
    3. It established that the Union of India has executive power over three entries in List II, which the NCTD does not have legislative competence
    • Court’s verdict: Based on these interpretations, the Court concluded that the executive power over services falls exclusively under the Government of the NCTD. This interpretation aligns with the language of Article 239AA(3)(a) of the Constitution.
    • However, the subsequent ordinance promulgated by the President on May 19, through the exercise of legislative power under Article 123, expanded the scope of excepted matters in Article 239AA(3)(a).

    Facts for prelims

    Article Description
    Article 123 Empowers the President to issue ordinances during Parliament’s recess.
    Article 239 Deals with the administration of Union Territories.
    Article 239A Provides for the creation of a Legislative Assembly for the Union Territory of Delhi.
    Article 239AA Contains special provisions for the Union Territory of Delhi, including the establishment of a Legislative Assembly and governance structure.
    Article 368 Outlines the procedure for amending the Constitution.
    Article 144 Deals with the binding nature of the Supreme Court’s judgments on all courts and authorities in India.
    Article 213 Empowers the Governor of a state to promulgate ordinances during the recess of the state legislature.

    Why the constitutionality of the ordinance in this regard is highly questionable?

    • Bypassing the constitutional amendment process: The ordinance expanded the scope of excepted matters in Article 239AA(3)(a). However, such an expansion would require a constitutional amendment under Article 368. By utilizing Article 123, which grants legislative power during the period of Parliament’s recess, instead of following the constitutional amendment process, the ordinance may be considered unconstitutional.
    • Limits of legislative power: The power conferred on Parliament under Article 239AA(3)(b) is to make fresh laws, not to directly amend Article 239AA(3)(a) of the Constitution. Therefore, altering the scope of Article 239AA(3)(a) would require a constitutional amendment under Article 368.
    • Colorable exercise of power: By expanding the scope of excepted matters without amending the Constitution through the appropriate procedure, the ordinance may be seen as a colorable exercise of power. It is essential to adhere to the constitutional amendment process to ensure the validity and legitimacy of legislative actions.

    Implications of the Court’s Judgment

    • Binding nature: When a Constitution Bench of the Supreme Court declares or interprets the law, its decision becomes binding on all courts and authorities in India according to Articles 141 and 144, respectively. The Court’s interpretation of Article 239AA(3)(a), which affirmed the exclusive executive power of the Government of the National Capital Territory of Delhi (NCTD) over services, is legally binding on all courts and authorities. This means that the government and other entities must adhere to this interpretation.
    • Limits on executive power: The Court’s verdict clarified the extent of executive power held by the NCTD and the Union of India. This delineation of executive power sets clear boundaries and ensures a proper division of responsibilities between the NCTD and the Union government.
    • Requirement of constitutional amendment: The Court’s verdict highlighted the need for a constitutional amendment to alter the scope of Article 239AA(3)(a) and expanding the exceptions in Article 239AA(3)(a) would require a constitutional amendment under Article 368. This reaffirms the importance of adhering to the constitutional amendment process to ensure the integrity and legitimacy of any changes made to the Constitution.
    • Questioning the validity of the ordinance: The Court’s judgment raises questions about the validity of the subsequent ordinance promulgated by the President. The ordinance, which expanded the scope of excepted matters in Article 239AA(3)(a), may be deemed unconstitutional.

    Conclusion

    • The Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 raises constitutional concerns. Its expansion of excepted matters without a constitutional amendment is likely to be struck down. The ordinance is void ab initio and represents a colorable exercise of power. Only Parliament, through proper amendment procedures, can alter the scope of Article 239AA(3)(a).

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    Also read:

    Power Struggle in Delhi: Balancing Democracy, Governance, and Accountability

     

  • Why do judges seek ‘RECUSAL’ for themselves?

    Central Idea

    Recusals by judges have been a frequent occurrence in recent weeks, raising important questions about the circumstances under which judges should recuse themselves, the need for recording reasons for recusal, and the reliance on individual judges’ discretion.

    What is Recusal?

    • Recusal is the removal of oneself as a judge or policymaker in a particular matter, especially because of a conflict of interest.
    • Recusal usually takes place when a judge has a conflict of interest or has a prior association with the parties in the case.
    • For example, if the case pertains to a company in which the judge holds stakes, the apprehension would seem reasonable.
    • Similarly, if the judge has, in the past, appeared for one of the parties involved in a case, the call for recusal may seem right.
    • A recusal inevitably leads to delay. The case goes back to the Chief Justice, who has to constitute a fresh Bench.

    Reasons for Judicial Recusal

    • Conflict of interest: Recusal often occurs when a judge has a direct conflict of interest or a prior association with the parties involved in a case. For instance, if a judge holds stakes in a company involved in the case, it would be reasonable to recuse themselves.
    • Earlier difference of opinion: Similarly, if the judge previously represented one of the parties in a case, recusal may be necessary.
    • Prevent bias: Some judges may recuse themselves based on apprehension of bias, while others may refuse to withdraw, considering the potential damage to the institution.
    • Absence of Codified Rules: India currently lacks codified rules specifically governing recusals, but the Supreme Court has addressed the issue through various judgments.

    Procedure for Recusal

    • Automatic and Plea-based Recusal: Recusal can happen automatically when a judge recognizes a conflict of interest or when a party raises a plea for recusal due to bias or personal interest.
    • Judge’s Discretion: The decision to recuse rests solely on the conscience and discretion of the judge; no party can compel a judge to withdraw.
    • Transfer of the Case: When a judge recuses, the case is transferred to the Chief Justice, who reassigns it to an alternate bench to ensure the continuity of proceedings.

    Recording Reasons for Recusal

    • Responsibility of Judges: Since there are no statutory rules, judges are responsible for recording their reasons for recusal.
    • Oral or Written Disclosure: Reasons for recusal can be specified orally in open court or through a written order, or they may remain undisclosed.

    Criticism

    • Lack of transparency: This regarding reasons for recusal has faced criticism, particularly when mass recusals occur in sensitive cases.
    • Motives undisclosed: Some judgments have argued for the need to indicate reasons to avoid attributing motives to recusals, while others express concerns that specifying reasons could lead to challenges and hinder the recusal process.
    • Inevitable delay: Recusal inevitably leads to delays in the proceedings as the case is transferred back to the Chief Justice, who must assign it to a fresh bench.

    Past Supreme Court Rules on Recusal

    • Factors for Impartiality: The Supreme Court has established various factors to determine the impartiality of a judge in previous judgments.
    • Reasonableness of Apprehension: The reasonableness of the party’s apprehension of bias is a crucial consideration when deciding whether recusal is necessary.
    • Definition of Judicial Bias: Judicial bias is defined as a predisposition that compromises a judge’s impartiality.
    • Real Danger Test: Pecuniary interests automatically disqualify a judge, while other cases require applying the “real danger” test to evaluate the possibility of bias.

    Issues with Recusal

    • Abdication of Duty: Recusal has been viewed as a potential abdication of a judge’s duty, raising concerns about maintaining institutional civility while fulfilling the independent role of judges as adjudicators.
    • Importance of Providing Reasons: Justice Kurian Joseph, in his separate opinion in the 2015 National Judicial Appointments Commission (NJAC) judgment, emphasized the importance of judges providing reasons for recusal to enhance transparency.
    • Constitutional Duty for Transparency: Indicating reasons for recusal is a constitutional duty, reflecting the need for judges to be transparent and accountable.

    Practices in Foreign Jurisdictions

    • United States: It has well-defined laws and codes that explicitly detail grounds for recusal, such as financial interests, prior involvement as a lawyer or witness, and relationships with parties.
    • United Kingdom: It has adopted the “real danger” test to disqualify judges based on substantive evidence of bias, although this approach has faced criticism.

    Importance of Appearance of Bias

    • The European Convention of Human Rights emphasizes the significance of the “appearance of bias” to ensure fairness from the perspective of a reasonable observer.

    Way Forward

    • To ensure fairness and maintain public trust in the justice system, it is crucial to establish clear guidelines and rules for recusal in India.
    • Codifying principles, requiring judges to record reasons for recusal, and promoting transparency can address concerns about bias and uphold the integrity of the judiciary.
    • Learning from foreign jurisdictions, such as studying the comprehensive recusal laws in the United States, can provide valuable insights for developing a robust framework for recusal in India.
    • Enhancing transparency and accountability in the recusal process will contribute to a stronger and more trusted judicial system.

     

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  • Code of Conduct for Civil Servants: A Review

    Central Idea

    • The civil services in India have witnessed a resurgence in popularity, with a growing number of candidates applying each year.
    • In this article, we delve into the various rules that govern civil servants and the restrictions they face throughout their career.

    Civil Services and Services Allocation

    • Successful applicants in the civil services examination can join various services based on their rank and personal preferences.
    • Three prominent services, known as All India Services, include the Indian Administrative Service (IAS), Indian Police Service (IPS), and Indian Forest Service (IFS).
    • Other services, known as Central Civil Services, are under the central government and do not have a state cadre system.

    Rules for Conduct of Civil Servants

    • Civil servants are governed by two sets of rules:
    1. All India Services Conduct Rules, 1968, and
    2. Central Civil Services Conduct Rules, 1964
    • These rules cover a wide range of issues, outlining the expected behaviour and conduct of civil servants.

    Issues with these rules

    (1) Vague and Specific Rules

    • The Conduct Rules include both vague and specific provisions.
    • Rule 3(1) emphasizes maintaining absolute integrity and devotion to duty without engaging in any behaviour unbecoming of a civil servant.
    • Rule 4(1) prohibits the use of one’s position or influence to secure employment for family members with private organizations or non-governmental organizations.

    (2) Restrictions on Political Affiliation and Expression of Opinion

    • Rule 5(1) prohibits civil servants from being members of political parties or organizations involved in politics.
    • Rule 7 restricts civil servants from making adverse criticisms of government policies or actions in public media or documents.

    (3) Prohibition on Dowry

    • Giving or taking dowry is strictly prohibited for civil servants under Rule 11(1-A).
    • Civil servants are required to report any gifts exceeding Rs. 25,000 received from near relatives or personal friends.

    Amendments and Updates to the Rules

    • The Conduct Rules are not static and have been amended and updated over time.
    • The government determines the political nature of organizations, impacting civil servants’ association with them.
    • Additional sub-rules were added in 2014, focusing on maintaining high ethical standards, integrity, political neutrality, and accountability.

    Coverage and Penalties

    • Civil servants are covered by these rules as soon as they join training, which is part of their probation period.
    • Violations of the rules can result in major penalties, including dismissal from the service.
    • The Prevention of Corruption Act (POCA) complements the Conduct Rules in addressing corruption issues.

    Challenges in Enforcement

    • While the rules outline penalties, enforcing them can be challenging.
    • Complaints with proper details are necessary for action to be taken.
    • Proper channels, such as the Central Vigilance Commission and investigation agencies, exist for filing complaints.

    Way Forward

    • Ensuring the effective implementation of the Conduct Rules requires streamlining the complaint process and encouraging transparency.
    • Regular review and updates of the rules can help address emerging challenges and ensure their relevance.
    • Training programs and awareness campaigns can enhance civil servants’ understanding of their responsibilities and the consequences of non-compliance.
    • Collaborative efforts between government bodies, civil society, and the public can foster a culture of accountability and ethical conduct among civil servants.

     

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  • GANHRI defers accreditation of India’s NHRC

    india nhrc ganhri

    Central Idea

    The Global Alliance of National Human Rights Institutions (GANHRI), a UN-recognized organization, has deferred the accreditation of India’s National Human Rights Commission (NHRC-India) for the second time in a decade.

    GANHRI (Global Alliance of National Human Rights Institutions)
    Purpose Promote and protect human rights globally
    Year Established 1993
    Headquarters Geneva, Switzerland
    Members National Human Rights Institutions (NHRIs) from various countries
    Key Functions – Promoting and strengthening NHRIs worldwide

    – Advocating for human rights at national, regional, and global levels

    – Facilitating cooperation and sharing of best practices among NHRIs

    – Providing capacity-building support to NHRIs etc.
    Organizational Structure – President: Elected from GANHRI members for a specified term

    – Bureau: Assists the President in overseeing GANHRI’s work

    – Sub-Committees: Focused on specific thematic or regional issues
    Key Documents – Paris Principles: Provide guidance for the establishment and operation of NHRIs

    – GANHRI Strategy: Outlines the organization’s strategic objectives and actions

     

    Reasons for India’s Deferment

    The GANHRI’s letter to the NHRC cited several reasons for the deferment of accreditation, including:

    • Political Interference: The NHRC-India faced objections related to political interference in appointments, compromising its independence.
    • Police Involvement: Involving the police in probes into human rights violations raised concerns about impartiality and fair investigations.
    • Lack of Cooperation: The NHRC’s poor cooperation with civil society was criticized, hindering its effectiveness in protecting human rights.
    • Lack of Diversity: The GANHRI highlighted the lack of diversity in staff and leadership positions within the NHRC.
    • Insufficient Protection of Marginalized Groups: The NHRC was found to have taken insufficient action to protect marginalized groups, contrary to the U.N.’s principles on national institutions (the ‘Paris Principles).

    Concerns highlighted against India

    • Many NGOs such as Amnesty International, Front Line Defenders etc. wrote a joint letter to GANHRI expressing their objections to NHRC India’s ‘A’ rank.
    • They highlighted the commission’s failure to protect marginalized communities, religious minorities, and human rights defenders.
    • The letter emphasized that the NHRC’s functioning has regressed since 2017, undermining its independence and adherence to the Paris Principles.

    Paris Principles and Accreditation Criteria

    The United Nations’ Paris Principles, adopted in 1993, serve as international benchmarks for accrediting National Human Rights Institutions (NHRIs). The Paris Principles outline six main criteria that NHRIs must meet:

    • Mandate and Competence: NHRIs should have a clear mandate and the necessary expertise to protect human rights effectively.
    • Autonomy from Government: NHRIs must operate independently from government influence or control.
    • Independence: NHRIs should have their independence guaranteed by a statute or constitution.
    • Pluralism: NHRIs should ensure diversity and inclusivity in their staffing and leadership positions.
    • Adequate Resources: NHRIs should have sufficient resources to carry out their mandated functions effectively.
    • Powers of Investigation: NHRIs should possess adequate investigative powers to address human rights violations.

    Background of NHRC-India

    • The NHRC-India was established under the Protection of Human Rights Act enacted by Parliament in 1993.
    • It has held ‘A’ status accreditation since the beginning of the NHRI accreditation process in 1999, which it retained in 2006, 2011, and 2017, despite a previous deferment.
    • This status allows participation in the work and decision-making of GANHRI, the Human Rights Council, and other U.N. mechanisms

    Response from India

    • The NHRC clarified that the deferment by the Sub Committee on Accreditation (SCA) does not affect its current ‘A’ status accreditation and associated privileges.
    • The reaccreditation process is still ongoing, and the SCA has recommended advocating with the government and Parliamentarians for legislative amendments to improve compliance with the Paris Principles.
    • The NHRC assured that they have addressed most of the issues raised by the SCA and will submit a response shortly as part of the ongoing process.

    Way Forward

    To address the concerns raised by GANHRI and human rights organizations, the NHRC-India should take the following steps:

    • Strengthen Independence: Ensure that the NHRC operates independently without political interference, safeguarding its credibility and effectiveness.
    • Promote Diversity: Take measures to enhance diversity in staffing and leadership positions within the NHRC to ensure a broader representation of society.
    • Improve Protection of Marginalized Groups: Develop comprehensive strategies and policies to provide effective protection and support to marginalized communities, religious minorities, and human rights defenders.
    • Address Legislative Amendments: Actively engage with the government and Parliamentarians to advocate for necessary legislative amendments that align with the Paris Principles and enhance compliance with international human rights standards.

    Conclusion

    • By implementing these measures, the NHRC-India can strengthen its functioning, regain the confidence of GANHRI and human rights organizations, and ensure the effective protection of human rights in India.

     

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  • WTO reforms a top priority: India

    wto

    Central Idea

    • India has stressed the urgent need for prioritizing reforms within the World Trade Organisation (WTO).
    • India has been advocating for WTO reforms and improved dispute settlement mechanisms during G20 discussions.

    About WTO

    Functions and Principles
    Establishment 1 January 1995
    Functions
    • Negotiating trade agreements
    • Enforcing trade rules
    • Providing technical assistance and capacity building
    • Sharing trade-related information and conducting research
    Fundamental principles
    • Non-discrimination
    • Reciprocity
    • Transparency
    • Predictability and stability
    Membership 164 member countries representing over 98% of global trade
    Decision-making
    • Decisions made by consensus among member countries
    • General Council is the highest decision-making body

     

    Prioritizing WTO Reforms

    • India’s Push for Reforms: India has been actively advocating for reforms within the World Trade Organisation.
    • Better Dispute Settlement Mechanisms: Alongside reforms, India is pushing for improved dispute settlement mechanisms within the WTO.
    • Reaffirming Foundational Principles: The discussions aim to reaffirm the principles enshrined in the Marrakesh Agreement and the multilateral trade agreements, emphasizing the importance of an open, fair, inclusive, and transparent WTO.

    Reforms that India is seeking

    • Structural Reforms: There is an urgent need for reforms within the WTO to address issues such as transparency, shorter time frames, the establishment of a permanent panel body, and special and differential treatment for developing countries.
    • Benefit for Developing Countries: Developing countries, including India, can benefit from these reforms if proposals specific to their needs are accepted.
    • Trade Facilitation for Services: While the WTO has made progress with the Trade Facilitation Agreement (TFA) concerning goods, there is a need for reforms in trade facilitation for services. India, as a major service provider, stands to benefit from improved cross-border movement of people.
    • Inclusivity: It is crucial to establish procedures and practices that are more inclusive, particularly for developing countries.
    • Peace Clauses: Adoption of “peace clauses” for developing countries’ implementation of current agreements can formalize commitments by major trading powers to allow grace periods and exercise due restraint.
    • Evolving Negotiation Modes: The single package approach used in the Uruguay Round is not effective in the Doha Round, necessitating the exploration of new negotiation modes.
    • Strengthened Dispute Settlement Mechanism: The dispute settlement mechanism within the WTO requires strengthening and expediting to enhance its effectiveness.
    • Separation of Political and Human Rights Issues: There is a need to separate political and human rights issues from trade disputes under Sanitary and Phytosanitary (SPS) norms.

    Crossroads for WTO

    • Stalled Multilateral Trade Negotiations: The multilateral trade negotiations, including the Doha Round, have reached an impasse, with limited progress in overall rule-making.
    • Challenges from Alternative Trade Pacts: Alternative trade pacts, such as mega-regional arrangements, have emerged and posed challenges to the position of trade multilateralism.
    • Disagreements on Market Access and Protection: The impasse in the Doha Round primarily stems from differences between highly industrialized countries and large developing countries regarding market access and protection of vulnerable economic sectors.

    Importance of Addressing WTO Reforms

    • Vital Role of WTO: The Minister emphasized that addressing WTO reforms is of utmost importance as the organization plays a crucial role in ensuring fairness and transparency in global trade.
    • Backbone of Multilateral Trading System: The WTO forms the backbone of the multilateral trading system and its reforms are necessary to strengthen its functioning.

    India’s Aspirations in International Trade

    • Global Leadership Ambition: India has expressed India’s aspiration to emerge as a global leader in the international trade landscape.
    • E-commerce Market Potential: India is poised to become the world’s second-largest e-commerce market, reflecting its transformation driven by open markets, global integration, and a strong entrepreneurial spirit.

    Way Forward

    • The urgent need for WTO reforms necessitates concerted efforts and global attention to ensure the fairness, transparency, and effectiveness of the multilateral trading system.
    • India’s active participation in advocating for reforms, along with its ambition to become a global leader in international trade, reflects its commitment to fostering a thriving and inclusive global trade environment.
    • It is essential for countries to collaborate and engage in constructive dialogue to address the challenges and opportunities in the evolving global trade landscape.

    Back2Basics: WTO Agreements and Accords

    • General Agreement on Tariffs and Trade (GATT): The GATT is the predecessor to the WTO and was in effect from 1948 to 1994. It aimed to reduce trade barriers and promote international trade through negotiations and tariff concessions.
    • Agreement on Agriculture (AoA): This agreement aims to establish fair and market-oriented agricultural trading systems. It addresses issues such as market access, domestic support, and export subsidies related to agricultural products.
    • Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS): The TRIPS agreement sets minimum standards for protecting intellectual property rights, including patents, copyrights, trademarks, and trade secrets.
    • Agreement on Trade-Related Investment Measures (TRIMs): This agreement prohibits certain investment measures that restrict trade or are inconsistent with the GATT’s principles.
    • Agreement on Sanitary and Phytosanitary Measures (SPS): The SPS agreement sets out rules for food safety and animal and plant health standards to ensure that countries do not use sanitary and phytosanitary measures as unjustified trade barriers.
    • Agreement on Technical Barriers to Trade (TBT): The TBT agreement aims to ensure that technical regulations, standards, and conformity assessment procedures do not create unnecessary obstacles to trade.
    • Agreement on Subsidies and Countervailing Measures (SCM): The SCM agreement regulates the use of subsidies and provides a framework for countervailing measures to address unfair trade practices arising from the use of subsidies.
    • Trade Facilitation Agreement (TFA): The TFA aims to simplify and streamline customs procedures, enhance transparency, and improve efficiency in international trade, with a focus on reducing trade costs and facilitating cross-border trade.

     

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  • The Paradox of BRICS: Prospects for Expansion and Internal Imbalance

    Central Idea

    • Mysterious are the ways in which multilateral groupings prosper and wither away. The case of BRICS grouping is truly remarkable. Despite initial achievements, BRICS has started losing its sparkle due to various global and regional challenges. However, the paradox lies in the fact that numerous nations are eager to join the group, showcasing the continuing appeal of BRICS.

    BRICS’s Origins and Evolution

    • Conception of BRIC: The term BRIC was coined by economist Jim O’Neill in a 2001 research paper, identifying Brazil, Russia, India, and China as emerging economies with significant growth potential.
    • Formalization of BRIC: The first formal meeting of BRIC leaders took place in 2009 on the sidelines of the G20 Summit in Russia, marking the group’s establishment as a platform for cooperation and dialogue.
    • Addition of South Africa: In 2011, South Africa was invited to join BRIC, expanding the group to BRICS. China advocated for South Africa’s inclusion, seeking broader representation in Africa and increasing the group’s diversity.
    • Economic Focus: Initially, BRIC was primarily an economic grouping, emphasizing the rising influence of these countries in the global economy due to their large populations, expansive territories, and rapid economic growth rates.
    • Geopolitical Cooperation: Over time, BRICS evolved to include geopolitical cooperation and joint positions on global issues. Leaders began discussing political matters and advocating for a more equitable international order.
    • Annual Summits: BRICS started holding annual summits where leaders from member countries gather to discuss and coordinate their positions on various global challenges and explore avenues for cooperation

    Key achievements of the BRICS

    • Economic Cooperation: BRICS has fostered economic cooperation among member countries, leading to increased trade, investment, and business opportunities. The group has launched initiatives to expand trade and investment cooperation, promoting economic growth and development.
    • New Development Bank (NDB): BRICS established the New Development Bank, also known as the BRICS Bank, which provides financial assistance for infrastructure projects and sustainable development initiatives in member countries and other emerging economies. The NDB has committed significant funds to various projects, contributing to infrastructure development and regional connectivity.
    • Contingent Reserve Arrangement (CRA): The CRA, established by BRICS, acts as a financial mechanism to provide liquidity support during times of financial stress and protect against global liquidity pressures. This arrangement has helped member countries mitigate potential financial crises and enhance financial stability.
    • Geopolitical Influence: BRICS has projected a non-western perspective on global and regional issues, strengthening the world’s march towards multipolarity and curbing the dominating influence of the West. The group has articulated common positions on various global challenges, such as climate change, terrorism, and global governance reform.

    Facts for prelims

    New Development Bank (NDB)

    • Establishment: The NDB was established by the BRICS countries (Brazil, Russia, India, China, and South Africa) in 2014.
    • Headquarters: The NDB’s headquarters are located in Shanghai, China.
    • Objectives: The bank aims to mobilize resources for infrastructure and sustainable development projects in emerging economies and developing countries.
    • Authorized Capital: The initial authorized capital of the NDB is set at $100 billion.
    • Governance Structure: The NDB operates on the principle of equal representation, with each member country having an equal say in decision-making. It is governed by a Board of Governors, a Board of Directors, and a President.
    • Funding: The NDB’s funding comes from the contributions of its member countries. Each BRICS member contributes an equal share to the bank’s capital.
    • Sustainability Focus: The NDB places a strong emphasis on sustainability and green finance. It aims to allocate a significant portion of its lending portfolio to projects that promote renewable energy, energy efficiency, and climate change mitigation and adaptation.

    Internal Imbalance and Challenges withing BRICS

    • Diverse Economic Systems: BRICS member countries have diverse economic systems, ranging from state-controlled economies to market-based economies. These differences in economic models can lead to variations in policy priorities, approaches to trade and investment, and economic challenges, creating potential frictions within the group.
    • Varying Levels of Development: BRICS member countries represent a wide spectrum of development stages. While China has emerged as a global economic powerhouse, other members like Brazil, India, Russia, and South Africa face developmental challenges and socioeconomic disparities. These differing levels of development can result in differing priorities and resource allocation, potentially straining cooperation within BRICS.
    • Geopolitical Ambitions and Rivalries: BRICS member countries have their individual geopolitical ambitions and interests. As emerging powers, they may compete for influence and resources in certain regions, leading to potential rivalries or divergent approaches to geopolitical issues. These geopolitical dynamics can complicate decision-making and alignment within BRICS.
    • Political and Governance Differences: BRICS comprises countries with varying political systems and governance structures. While some members uphold democratic values, others have different approaches to governance and human rights. These differences can result in divergent perspectives on political and human rights issues, potentially creating challenges in reaching consensus on certain matters.
    • Economic Vulnerabilities: BRICS member countries are susceptible to economic vulnerabilities, including structural issues, external shocks, and fluctuations in commodity prices. Economic challenges, such as high inflation, fiscal imbalances, and currency volatility, can strain the economic cooperation and stability within BRICS.
    • Coordination and Decision-Making Processes: BRICS operates as a consensus-based grouping, requiring agreement among member countries on various issues. Coordination and decision-making can be complex due to the diverse interests, priorities, and institutional frameworks of member countries. Reaching consensus on critical matters can be time-consuming and challenging.
    • Institutional Development: The institutional development within BRICS, such as the New Development Bank and the Contingent Reserve Arrangement, requires effective governance structures, operational frameworks, and decision-making processes. Establishing and managing these institutions while addressing the diverse needs and interests of member countries can pose institutional challenges.

    The demand for expansion in BRICS

    • Global Influence: Many countries see BRICS as a prominent grouping that holds influence on the global stage. Joining BRICS would provide an opportunity for countries to enhance their global influence and have a voice in shaping global agendas.
    • Economic Opportunities: BRICS represents a significant portion of the world’s population and economy. Joining the group could potentially provide countries with access to a large market and increased economic cooperation, including trade and investment opportunities among member countries.
    • Limited Options: Some countries may see BRICS as an attractive option for collaboration and engagement, particularly if they face limited opportunities to join other major multilateral groupings or regional blocs.
    • South-South Cooperation: BRICS is seen as a platform for South-South cooperation, promoting dialogue and collaboration among countries in the Global South. Joining BRICS allows countries to strengthen ties with like-minded nations and contribute to a collective voice for the interests of developing countries.
    • Counterbalance to Western Influence: The demand for expansion in BRICS can also stem from a desire to counterbalance the dominance of Western powers in global affairs. By joining BRICS, countries may seek to align themselves with a grouping that projects a non-western perspective and advocates for a more equitable international order.

    Prospects for expansion of BRICS and the criteria for new member admission

    1. Prospects for Expansion:
    • There is a growing interest from several countries in joining BRICS, indicating the perceived significance and appeal of the group.
    • As of now, 19 countries, including Argentina, Egypt, Indonesia, UAE, and Bangladesh, have expressed their desire to become members of BRICS.
    • The interest in expansion stems from various factors such as the desire to enhance global influence, the fear of missing out on membership in a prominent group, limited options for joining other groupings, and the aspiration to create a substantial forum for the Global South.
    1. Criteria for New Member Admission
    • Economic Size and Potential: Potential new members should have a significant and growing economy, demonstrating the potential to contribute to the group’s economic strength and cooperation.
    • Regional Representation: BRICS has aimed to have diverse regional representation, as seen with the inclusion of South Africa to represent Africa. New members could be considered based on their regional representation and the desire to ensure a broader geographic scope.
    • Political Stability and Compatibility: Political stability and compatibility with the values and principles of BRICS, including democracy, human rights, and governance, could be important considerations in the admission process.
    • Commitment to Cooperation: Prospective members should demonstrate a genuine commitment to international cooperation, multilateralism, and the principles and objectives of BRICS.
    • Mutual Benefits: The admission of new members should be mutually beneficial for both the existing members and the prospective members, contributing to enhanced economic cooperation, geopolitical influence, and the achievement of common goals.
    • Consensus Among Existing Members: Consensus among the existing BRICS member countries would be crucial in determining the admission of new members. The existing members would need to agree on the expansion and the specific countries to be admitted.

    The Future of BRICS: Key aspects

    • Economic Collaboration: BRICS has the potential to deepen economic collaboration and promote intra-BRICS trade and investment. By leveraging their collective market size and resources, member countries can explore new areas of economic cooperation, such as digital economy, technology, sustainable development, and infrastructure investment.
    • Institutional Development: The New Development Bank (NDB) and the Contingent Reserve Arrangement (CRA) are key institutions established by BRICS. The group can focus on further developing and expanding the role of these institutions to effectively address financial challenges and support sustainable development projects.
    • Geopolitical Influence: By coordinating their positions on global governance, security, and geopolitical issues, member countries can amplify their collective voice and influence international discussions and decision-making processes. BRICS can also foster South-South cooperation and advocate for the interests of developing countries in global forums.
    • Expansion and Outreach: The interest from other countries to join BRICS presents an opportunity for expansion and outreach. The group can carefully consider the admission of new members, ensuring that the expansion aligns with the group’s objectives, principles, and criteria. By including new members, BRICS can broaden its geographic representation and potentially strengthen its collective influence.
    • Innovation and Technology Cooperation Member countries can collaborate in areas such as artificial intelligence, renewable energy, space exploration, and digital governance. Sharing expertise, research, and best practices can propel the group’s technological advancement and foster mutual growth.
    • Adaptation to Global Challenges: BRICS should collectively address global challenges such as climate change, public health crises, and sustainable development. By coordinating efforts, sharing knowledge, and pooling resources, the group can contribute to finding solutions and shaping global agendas on critical issues.

    Conclusion

    • The paradox of BRICS lies in its diminishing allure while attracting numerous nations eager to join. Despite facing internal tensions, BRICS has made significant contributions to the world’s multipolarity and economic cooperation. By addressing internal imbalances, seizing opportunities for growth, and staying responsive to global dynamics, BRICS can continue to play a significant role in shaping the international order and promoting the interests of emerging economies and the Global South.

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    Understanding the “China’s BRICS” game

     

  • Power Struggle in Delhi: Balancing Democracy, Governance, and Accountability

    Power Struggle

    Central Idea

    • In recent times, we have witnessed a significant development in the power struggle between the Delhi government and the Central government. The Supreme Court’s unanimous recognition of the Delhi government’s control over administrative services marked an emancipation of the people’s will. However, the subsequent promulgation of an ordinance by the Central government to nullify the court’s decision has subverted the Delhi government’s power and handed it back to Central government appointees.

    The Delhi government’s struggle for control

    • Stripping of Control: In 2015, the Union Ministry of Home Affairs took away the elected Delhi government’s control over administrative services and handed it to the Lieutenant Governor (LG), an appointee of the Union government. This decision severely impeded the functioning of the Delhi government.
    • Day-to-Day Problems: The transfer of control over services resulted in day-to-day problems in the functioning of important departments. Secretaries were frequently changed, leading to a lack of continuity, vision, and efficiency in governance.
    • Frequent Transfers of Officials: The Delhi government witnessed frequent transfers of officials, hindering their ability to familiarize themselves with the departments they were working in. This constant reshuffling minimized the potential for effective governance and hindered the government’s relief efforts during crises like the COVID-19 pandemic.
    • Lack of Functional Control: As the elected government had no functional control over services, it faced challenges in punishing errant officers and addressing issues such as vacancies, vigilance enquiries, and corruption cases. The government also witnessed a high number of vacancies in crucial positions due to mismanagement by the Lieutenant Governor.
    • Conflicting Directives: Officials faced a dilemma in following directives as they felt duty-bound to honor the will of the elected government expressed by the people, while also staying under the functional control of the LG. This created confusion and hindered effective decision-making.
    • Lack of Answerability: The Services Department, under the control of the LG, refused to answer questions raised by Members of the Legislative Assembly (MLAs) in the Vidhan Sabha. This limited transparency and accountability, preventing MLAs from obtaining crucial information related to vacancies, corruption cases, and other issues.
    • Penalization of Officials: Honest and efficient officials were often penalized for their merits and subjected to punishment postings. This created an environment of uncertainty and discouraged officials from performing their duties effectively.

    The Supreme Court’s intervention in the Delhi government’s struggle for control

    • Recognition of Delhi Government’s Control: The Supreme Court, in a landmark decision, recognized the control of the Delhi government over administrative services. A five-judge Bench unanimously upheld the government’s authority, ensuring that decisions on appointments and transfers would be made by the elected government.
    • Restoration of Chain of Accountability: The Court’s judgment restored the chain of accountability involving the people, the legislature, the government, and the bureaucracy. It reinforced the principle that elected governments have the power to govern and make decisions regarding the bureaucracy.
    • Empowerment of the Elected Government: The Supreme Court’s decision empowered the elected Delhi government to make appointments and transfers based on performance and merit. It allowed the government to take action against errant officials and implement its policies effectively.
    • Efficient and Compassionate Bureaucracy: The Court’s ruling paved the way for an efficient, honest, responsive, accountable, and compassionate bureaucracy. It provided clarity on the roles and responsibilities of officials, enabling them to work towards the development of Delhi and the welfare of its people.
    • Clarification on Services Department: The Court’s intervention brought clarity regarding the Services Department, which had previously refused to answer questions raised by MLAs in the Vidhan Sabha. The judgment ensured that the elected government had functional control over the department, enabling transparency and answerability.
    • Encouragement for Overhauling the Bureaucracy: The Delhi government, empowered by the Court’s decision, planned to overhaul the bureaucracy. It sought to establish a skilled administration model, leveraging the success of its health and education models.

    The significance of the Supreme Court judgment

    • Upholding Democratic Principles: The Supreme Court judgment recognizing the control of the Delhi government over administrative services upholds democratic principles. It affirms the importance of elected governments in decision-making and governance, ensuring that the will of the people expressed through their votes is respected.
    • Restoration of Accountability: The judgment restores the chain of accountability involving the people, the legislature, the government, and the bureaucracy. It clarifies the roles and responsibilities of the elected government and the bureaucracy, fostering transparency and answerability.
    • Empowering Elected Government: By recognizing the control of the elected Delhi government, the Court empowers the government to make appointments and transfers based on performance. It enables the government to take action against errant officials and implement its policies effectively, leading to improved governance.
    • Strengthening Good Governance: The judgment paves the way for an efficient, honest, and responsive bureaucracy. It ensures that officials work towards the development of Delhi and the welfare of its people. It promotes vision, consistency, and efficiency in governance, fostering good governance practices

    Impact of the ordinance issued by the Central government on the power dynamics in Delhi

    • Shift of Control: The ordinance has effectively shifted control over services in Delhi back to the Lieutenant Governor (LG), appointed by the Central government. This overturns the Supreme Court’s decision recognizing the control of the elected Delhi government over administrative services. It diminishes the authority of the elected government and centralizes power in the hands of the LG.
    • Undermining Democratic Process: The ordinance undermines the democratic process by disregarding the elected government’s role in matters of services. It reduces the value of the citizen’s vote and weakens the accountability of officers to the elected representatives. This move goes against the principles of cooperative federalism and disempowers opposition-run governments.
    • Disruption of Policy Implementation: The ordinance hampers the implementation of policies and initiatives by the elected government. It allows the LG to exercise sole discretion in matters of services, potentially leading to conflicting views and hindrances in executing the government’s policies. This can result in delays, inefficiencies, and a lack of coordination in governance.
    • Disempowerment of Elected Government: The ordinance disempowers the elected Delhi government by granting the LG significant decision-making powers. It limits the government’s ability to appoint officers who align with its policies and goals, undermining the concept of an accountable and responsive administration.
    • Potential for Discord and Inefficiency: The ordinance introduces the possibility of discord between the LG and the elected government, as the LG can veto the Chief Minister’s views. This can create conflicts and hinder effective decision-making and cooperation between the two entities. The lack of coordination and cooperation can lead to bureaucratic delays, inefficiencies, and an inability to address the needs of the people.
    • Centralization of Power: The ordinance reflects a trend of centralizing power in the hands of the Central government and the LG. It institutionalizes the use of the Governor/LG position to undermine democratically elected non-BJP governments and weaken their authority. This concentration of power challenges the principles of federalism and decentralization.

    Power Struggle

    Facts for prelims

    The constitutional provisions related to the ordinance powers

    • Article 123: It grants the President of India the power to issue ordinances during the recess of Parliament. The President can promulgate ordinances when both Houses of Parliament are not in session if they deem it necessary to take immediate action. The ordinances have the same force and effect as an act of Parliament but must be laid before both Houses for approval.
    • Article 213: It grants similar powers to the Governor of a state to issue ordinances during the recess of the state legislature. The Governor can promulgate ordinances when the state legislature is not in session if they believe it is necessary to take immediate action. Like in the case of the President, the ordinances issued by the Governor must be laid before the state legislature for approval.
    • Article 123(3) and Article 213(3): These provisions require that any ordinance promulgated by the President or the Governor, respectively, must be laid before both Houses of Parliament or the state legislature, as the case may be, as soon as it reconvenes. The ordinance ceases to operate if it is not approved within a specified period or if both Houses pass resolutions disapproving it.
    • Article 213(2)(a): This provision states that an ordinance issued by the Governor will have the same force and effect as an act of the state legislature but is subject to the power of the state legislature to pass an act inconsistent with the ordinance

    The way forward

    • Respect for Judicial Decisions: It is crucial for all stakeholders to respect and abide by the decisions of the Supreme Court. Upholding the rule of law and the independence of the judiciary is essential for a functioning democracy. Any further legal challenges should be pursued through proper legal channels.
    • Dialogue and Collaboration: It is important for the Central government and the elected Delhi government to engage in constructive dialogue and collaboration. Both entities should work towards finding common ground and resolving their differences through discussions and negotiations. This will help establish a cooperative and inclusive approach to governance.
    • Clarity on Roles and Responsibilities: There should be a clear delineation of roles and responsibilities between the elected government and the Lieutenant Governor. This will help avoid conflicts and ensure effective coordination in decision-making and policy implementation. Establishing transparent guidelines for the exercise of power and cooperation is essential.
    • Strengthening Cooperative Federalism: Both the Central government and state governments, including the government of Delhi, should uphold the principles of cooperative federalism. This involves respecting the autonomy and authority of elected state governments and promoting meaningful collaboration for the benefit of the people.
    • Effective Governance Mechanisms: Efforts should be made to establish effective governance mechanisms that promote transparency, accountability, and efficiency. This includes streamlining administrative processes, ensuring timely appointments and transfers, and implementing performance-based evaluation systems for officials.
    • Public Participation and Engagement: Engaging the public in decision-making processes and policy formulation can foster a sense of ownership and enhance the quality of governance. Platforms for public participation, such as citizen feedback mechanisms and public consultations, should be established to ensure the voices of the people are heard.
    • Strengthening Institutions: The strengthening of democratic institutions, including the judiciary and administrative bodies, is crucial. Upholding their independence, ensuring merit-based appointments, and promoting professionalism and accountability within these institutions will contribute to effective governance.
    • Focus on Development and Welfare: Irrespective of the power dynamics, the primary focus should be on the development and welfare of the people of Delhi. Efforts should be made to deliver essential services, address pressing issues, and implement policies that cater to the needs and aspirations of the citizens.

    Conclusion

    • The battle for control in Delhi between the elected government and the Central government has witnessed both the emancipation and subversion of the people’s will. It is crucial for all parties involved to prioritize the well-being of the citizens and work together to establish a cooperative and inclusive governance framework. By doing so, Delhi can overcome the challenges posed by the power struggle and strive towards effective governance that caters to the needs and aspirations of its people.

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    Governor’s Constitutional Limits: A Resolution to President

  • India-Australia ties built on Trust: PM

    australia

    Central Idea

    • PM Modi addressed a community event in Sydney, emphasizing the strong foundations of trust and respect between India and Australia.
    • He credited the Indian diaspora for the success of this relationship.
    • The event aimed to strengthen cultural ties and was attended by over 21,000 people, including Australian PM Anthony Albanese.

    India-Australia Relations: A Backgrounder

    • The India-Australia bilateral relationship has undergone evolution in recent years, developing along a positive track, into a friendly partnership.
    • The two nations have much in common, underpinned by shared values of a pluralistic, Westminster-style democracies, Commonwealth traditions, expanding economic engagement etc.
    • Several commonalities include strong, vibrant, secular and multicultural democracies, free press, independent judicial system and English language.

    Historical Perspective

    • Early colonization: The historical ties between India and Australia started immediately following European settlement in Australia from 1788.
    • A penal colony: All trade, to and fro from the penal colony of New South Wales was controlled by the British East India Company through Kolkata.
    • Diplomatic ties: India and Australia established diplomatic relations in the pre-Independence period, with the establishment of India Trade Office in Sydney in 1941.
    • Expansion of ties: The end of the Cold War and simultaneously, India’s decision to launch major economic reforms in 1991 provided the first positive move towards development of bilateral ties.

    Various dimensions of ties

    [A] Political partnership

    • Both countries are members of-
    1. G-20
    2. ASEAN Regional Forum (ARF),
    3. IORA (Indian Ocean Rim Association),
    4. Asia Pacific Partnership on Climate and Clean Development,
    5. East Asia Summit and
    6. The Commonwealth
    7. QUAD (Quadrilateral Security Dialogue)
    • Australia has been extremely supportive of India’s quest for membership of the APEC (Asia Pacific Economic Cooperation).
    • Australia wholeheartedly welcomed India’s joining of the MTCR (Missile Technology Control Regime).

    [B] Trade and Economy

    • 5th largest trade partner: India is the 5th largest trade partner of Australia with trade in goods and services.
    • Huge trade volume: Two-way trade between India and Australia was worth A$ 24.3 billion ($18.3 billion) in 2020, up from just $13.6 billion in 2007, according to the Australian government.
    • Uranium exports: After a series of attempts, in 2016, Australia opened the door for uranium exports to India.
    • R&D: An Australia-India Strategic Research Fund (AISRF) which was established in 2006, supports collaboration between scientists in India and Australia on cutting-edge research.

    [C] Cultural ties

    • P2P ties: There is a longstanding people-to-people ties, ever increasing Indian students coming to Australia for higher education.
    • Bond over cricket and tourism: Growing tourism and sporting links, especially Cricket and Hockey, have played a significant role in further strengthening bilateral relations between the two countries.
    • Skilled workforce: India is one of the top sources of skilled immigrants to Australia.
    • Indian students: The number of Indian students continue to grow with approximately 105,000 students presently studying in Australian universities.
    • Diaspora: After England, India is the second largest migrant group in Australia in 2020.

    [D] Strategic Partnership

    • In 2009, India and Australia established a ‘Strategic Partnership’, including a Joint Declaration on Security Cooperation which has been further elevated to Comprehensive Strategic Partnership in 2020.
    • The Mutual Logistics Support Agreement has been signed during the summit that should enhance defence cooperation and ease the conduct of large-scale joint military exercises.
    • There is a technical Agreement on White Shipping Information Exchange.
    • Both nations conduct bilateral maritime exercise AUSINDEX. In 2018, Indian Air Force participated for the first time in the Exercise Pitch Black in Australia.
    • Foreign and Defence Ministers of both countries agreed to meet in a ‘2+2’ format
    • The first-ever Quad Leaders’ Virtual Summit held on 12 March 2021 saw the participation of Prime Ministers of India, Australia, Japan and President of USA.
    • A Civil Nuclear Cooperation Agreement between the two countries was signed in September 2014 during the visit of then PM Tony Abbott to India.

    Significance of the ties

    • COVID Management: Australia is one of the few countries that has managed to combat COVID-19 so far through “controlled adaptation” by which the coronavirus has been suppressed to very low levels.
    • STEM: From farming practices through food processing, supply and distribution to consumers, the Australian agribusiness sector has the desired R&D capacity, experience and technical knowledge.
    • Natural resources: Australia is rich in natural resources that India’s growing economy needs. It also has huge reservoirs of strength in higher education, scientific and technological research.
    • Alliance with US: The two countries also have increasingly common military platforms as India’s defence purchases from the US continue to grow.
    • Affinity with ASEAN: Australia has deep economic, political and security connections with the ASEAN and a strategic partnership with one of the leading non-aligned nations, Indonesia.
    • Containing China: The Indo-Pacific region has the potential to facilitate connectivity and trade between India and Australia. Both nations can leverage their equation in QUAD to contain China.

    International cooperation

    • Support at UNSC: Australia supports India’s candidature in an expanded UN Security Council.
    • APEC: Australia is an important player in APEC and supports India’s membership of the organisation. In 2008, Australia became an Observer in SAARC.

    Some irritants in ties

    • Trade imbalance: India’s trade deficit with Australia has been increasing since 2001-02 due to India-Australia Free Trade Agreement. It is also a contentious issue in the ongoing RCEP negotiations which India left.
    • High tariff on agri products in India: India has a high tariff for agriculture and dairy products which makes it difficult for Australian exporters to export these items to India.
    • Non-tariff barriers in Australia: At the same time, India faces non-tariff barriers and its skilled professionals in the Australian labour market face discrimination.
    • Visa Policy: India wants greater free movement and relaxed visa norms for its IT professionals, on which Australia is reluctant.
    • Future of QUAD: Australian lobby has sparked speculation over the fate of the Quadrilateral Consultative Dialogue (the ‘Quad) involving India, Australia, Japan and the United States.
    • Nuclear reluctance: Building consensus on non-nuclear proliferation and disarmament has been a major hurdle given India’s status as a nuclear power.
    • Racism against Indians: Increasing Racist attacks on Indians in Australia has been a major issue.

    Way forward

    • Upgradation of 2+2 format: It is prudent too for New Delhi and Canberra to elevate the ‘two plus two’ format for talks from the Secretary level to the level of Foreign and Defence Ministers.
    • Removal of trade barriers: Both nations need to resolve disputes at the WTO with regard to the Australian sector can act as a serious impediment.
    • Balancing China: An ‘engage and balance’ China strategy is the best alternative to the dead end of containment.

     

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  • Delhi Governance New Ordinance

    ordinance

    Central Idea

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

    Issues with this ordinance

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

    Key issues with the current model of Governance of Delhi

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

    What is Ordinance?

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

    Features of Ordinances

    Several characteristics and provisions are associated with ordinances:

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

    Issues with the Ordinances

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

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

    Judicial Safeguards to avoid re-promulgation of ordinances

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

    Way ahead

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

    Conclusion

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

     

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  • Highlights of the proposed Digital India Act, 2023

    Central Idea

    • The Digital India Bill, a comprehensive overhaul of Internet laws, will be unveiled in June 2023. This bill represents a significant update since the Information Technology Act of 2000.

    What is the Digital India Bill?

    • DIA will consist of 4 parts:
    1. Digital Personal Data Protection Bill,
    2. DIA rules,
    3. National Data Governance Policy, and
    4. Indian Penal Code amendments

    Need for such legislation

    • India has 850 million internet users, making it the world’s largest “digitally connected democracy.”
    • The IT Act, created for the pre-digital era, lacks provisions for user rights, trust, safety, and modern cyber threats.
    • Growing cyber crimes, disinformation, and privacy concerns necessitate an updated legislation.

    Goals of the Digital India Bill 

    • Evolvable digital law: Flexible rules adaptable to changing technological trends.
    • Adjudicatory mechanism: Accessible mechanism for resolving online civil and criminal offenses.
    • Principles and rules-based approach: A legislative framework based on overarching governing principles.

    Key components of the DIA

    • Open Internet: Promotes choice, competition, diversity, fair market access, and ease of doing business, preventing the concentration of power.
    • Online Safety and Trust: Safeguards users against cyber threats, revenge porn, defamation, cyberbullying, and moderates fake news. Advocates for digital rights and protects minors.
    • KYC Requirements: Mandates Know Your Customer (KYC) for privacy-invading devices like spy camera glasses.
    • Monetization Rules: Overhauls rules for platform and user-generated content to align with the DIA.

    Key feature: Reconsideration of Safe Harbour

    • The government is reconsidering a key aspect of cyberspace — ‘safe harbour’.
    • Safe harbour is the principle that so-called ‘intermediaries’ on the internet are not responsible for what third parties post on their website.
    • This is the principle that allows social media platforms to avoid liability for posts made by users.
    • Safe harbour has been reined in in recent years by regulations like the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, which require platforms to take down posts when ordered to do so by the government, or when required by law.

    Way Forward

    • The detailed timeline is undisclosed, but the government aims to conduct a comparative study of global laws and consult with experts, industry, the public, and relevant forums.
    • The draft Bill will undergo consultation, followed by a draft Cabinet note before the final version is released.

     

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