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GS Paper: GS2

  • Live Streaming of SC proceedings: the rationale and the concerns

    From September 27 onward, all proceedings of Supreme Court Constitution Benches will be live-streamed, a full court meeting of the top court has decided.

    Background of the move

    • History was made on August 26 (2022) when the proceedings from the Chief Justice’s Court in the Supreme Court (SC) were live streamed.
    • In the ‘Swapnil Tripathi’ judgment, in September 2018, the SC had cleared the deck for live streaming of cases of national and constitutional importance.

    Immediate triggers for live streaming

    • They had agreed to hear a public interest litigation seeking live streaming of judicial proceedings on matters of constitutional and national importance.
    • Prime considerations cited are:
    1. De-congestion of courts and
    2. Improving physical access to courts for litigants who have to otherwise travel long distances

    Recommended by A-G

    • The Supreme Court approved a set of guidelines suggested by the A-G, which included allowing transcripts and archiving the proceedings.
    • However, the A-G suggested that the court must retain the power to withhold broadcasting, and to also NOT permit it in cases involving:
    1. Matrimonial matters,
    2. Matters involving interests of juveniles or the protection and safety of the private life of the young offenders,
    3. Matters of National security,
    4. To ensure that victims, witnesses or defendants can depose truthfully and without any fear.
    5. To protect confidential or sensitive information, including all matters relating to sexual assault and rape,
    6. Matters where publicity would be antithetical to the administration of justice, and
    7. Cases which may provoke sentiments and arouse passion and provoke enmity among communities.

    Live streaming in HCs

    • Following the SC’s decision, Gujarat High Court began live streaming its proceedings in July 2021.
    • Currently, the Jharkhand, Karnataka, Madhya Pradesh, Orissa, and Patna High Courts live stream their proceedings.
    • Allahabad High Court is learnt to be considering doing the same.

    Global examples of live streaming

    • United States of America: While the US Supreme Court has rejected pleas for broadcast of its proceedings, it has since 1955 allowed audio recording and transcripts of oral arguments.
    • United Kingdom: In 2005, the law was amended to remove contempt of court charges for recording proceedings of the Supreme Court.

    Why need live streaming of court?

    • Improved accountability: Live-streaming of court proceedings would serve as an instrument for greater accountability and formed part of the Code of Criminal Procedure, 1973.
    • Living up the expectation of Constitution: Live Streaming of Court proceedings is manifested in public interest. Public interest has always been preserved through the Constitution article 19 and 21
    • Empowering the masses: It will enable the legal system to deliver on its promise of empowering the masses.
    • More transparency: It will encourage the principle of open court and reduce dependence on second-hand views. It will effectuate the public’s right to know.
    • This would inspire confidence in the functioning of the judiciary as an institution and help maintain the respect that it deserved as a co-equal organ of the state.
    • Academic help: Live streaming may also be a help for academic purposes.

    Concerns around live streaming

    • Contempt of court: Video clips of proceedings from Indian courts are already on YouTube and other social media platforms with sensational titles and little context, such as “HIGH COURT super angry on army officer”.
    • Disinformation and sensationalism: There are fears that irresponsible or motivated use of content could spread disinformation among the public.
    • Unnecessary activism: With the advent of social media, every citizen became a potential journalist. Study shows that justices behave like politicians when given free television time, they act to maximize their individual exposure.

    Issues to judicial functioning

    • Decency of questions: During hearings judges may not ask questions or make comments that could be perceived as unpopular.
    • Triggers for oral observations: There is an increasing trend of oral observations of the court, which are not binding on parties replacing reasoned judgment and orders that are consequential.
    • Dignity of court may be compromised: Similarly, lawyers, aware of their new audience, may choose to grandstand and play to the gallery, especially in a case they expect to lose.

    Way forward

    • Selective broadcast: The solution may lie in carefully determining how the live streaming proceeds.
    • Careful selection of cases: Not uploading archived stream on the SC website until it is legally/technologically possible to ensure that such videos cannot be spliced.
    • Understanding public perception and sentiments: Other similar measures that reflect an understanding of how the public consumes (dis)information will ensure that live streaming enriches constitutionalism across the country.

    Conclusion

    • A hasty and wholesale introduction on the other hand is likely to land the SC right in the middle of the majoritarian and toxic information swamp that prevails in the country.

     

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  • Rules for Identifying Criminals now notified

    On September 19, the Ministry of Home Affairs (MHA) notified the rules governing The Criminal Procedure (Identification) Act, 2022. The Act was passed in March by the Parliament.

    Why in news?

    Rules for Identifying Criminals now notified - Civilsdaily

    • Until rules are notified, an Act cannot be implemented or come into force.
    • The legislation would enable police and central investigating agencies to collect, store and analyse physical and biological samples including retina and iris scan of arrested persons.

    What is the Criminal Procedure (Identification) Act, 2022?

    Ans. It is about critical measurements of Criminals.

    • This act provides legal sanction to law enforcement agencies for taking measurements of convicts and other persons for the purposes of identification and investigation of criminal matters.
    • The Minister of Home Affairs has observed that with advancements in forensics, there was a need to recognise more kinds of “measurements” that can be used by law enforcement agencies for investigation.

    What is the use of identification details in criminal trials?

    • Measurements and photographs for identification have three main purposes:
    1. To establish the identity of the culprit against the person being arrested
    2. To identify suspected repetition of similar offences by the same person and third
    3. To establish a previous conviction

    What was the previous Identification of Prisoners Act, 1920 about?

    • Even though the police has powers of arrest, mere arrest does not give Police the right to search a person.
    • The police requires legal sanction to search the person and collect evidence.
    • These legal sanctions are designed so as to maintain a balance between the rights of an individual and the interests of society in prosecution and prevention of offences.
    • The Identification of Prisoners Act, 1920 became a necessity when the recording of newer forms of evidence such as fingerprints, footprints and measurements started becoming more accurate and reliable.

    What was the need to replace this Act?

    Ans. Changing nature of Crime

    • Over the years, the need to amend/update the Identification of Prisoners Act, 1920 has been voiced several times.
    • In 1980, the 87th Report of the Law Commission of India undertook a review of this legislation and recommended several amendments.
    • This was done in the backdrop of the State of UP vs. Ram Babu Misra case, where the Supreme Court had highlighted the need for amending this law.
    • The first set of recommendations laid out the need to amend the Act to expand the scope of measurements to include “palm impressions”, “specimen of signature or writing” and “specimen of voice”.
    • The second set of recommendations raised the need of allowing measurements to be taken for proceedings other than those under the Code of Criminal Procedure (CrPC).

    What are the main highlights and differences in both the legislations?

    • Both provide legal sanction: Like the 1920 Law, the new Criminal Procedure (Identification) Act, 2022 provides for legal sanction to law enforcement agencies for the collection of measurements.
    • Creating usable database of evidences: The purpose is to create a useable database of these measurements.
    • Notifying designated state agencies: At the State level, each State is required to notify an appropriate agency to collect and preserve this database of measurements.
    • NCRB at centre stage: At the national level, the National Crime Records Bureau (NCRB) is the designated agency to manage, process, share and disseminate the records collected at the State level.

    What are some of the concerns with the present legislation?

    • Striking a balance: The new legislation has raised some concerns related to the protection of fundamental rights.
    • Unresolved right to Privacy debate: The legislation comes in the backdrop of the right to privacy being recognised as a fundamental right.
    • Notion of physical privacy: A fundamental facet of the right to privacy is protection from the invasion of one’s physical privacy.
    • Justifying necessity: As per the Puttaswamy judgment, there is a need for the measure to be taken in pursuance of a legitimate aim of the state, be backed by the law and be “necessary and proportionate” to the aim being sought to be achieved.

    (1) Various tests behind

    • In this case, while the first two tests are satisfied, as:
    1. “prevention and investigation of crime” is a legitimate aim of the state
    2. “measurements” are being taken under a valid legislation,
    • Satisfaction of the third test of “necessity and proportionality” has been challenged on multiple counts.

    (2) A probable police state in making

    • Analysis and measurement of behavioural attributes have raised concerns that data processing may go beyond recording of core “measurements”.
    • That is some of these measurements could be processed for predictive policing.

    (3) Includes petty offences

    • The current law allows for “measurements” to be taken if a person has been convicted/arrested for any offence, including petty offences.
    • The necessity of taking measurements of such persons for investigation of offences is unclear, and such discretion is likely to result in abuse of the law at lower levels.
    • This would definitely overburden the systems used for collection and storage of these measurements.

    (4) Period of storage of data

    • Given that these records will be stored for 75 years from the time of collection, the law has been criticised as being disproportionate.

    (5) Surveillance state

    • Such collection can also result in mass surveillance, with the database under this law being combined with other databases such as those of the Crime and Criminal Tracking Network and Systems (CCTNS).

    (6) Promotes self-incrimination

    • Concerns are being raised that the present law violates the right against self-incrimination enshrined in Article 20(3) of the Constitution of India.
    • However, this argument is nebulous since the Supreme Court has already settled this point.
    • In the State of Bombay vs Kathi Kalu Oghad, the Supreme Court had conclusively held that “non-communicative” evidence i.e. evidence which does not convey information within the personal knowledge of the accused cannot be understood to be leading to self-incrimination.
    • Therefore, no challenge lies to the law on this ground.

    Way forward

    • Extensive pre-legislative consultation is must for any sensitive law as such.
    • Privacy and data protection-related concerns must be addressed in the Rules formulated under the legislation and through model Prison Manuals that States can refer to.

     

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  • Ratan Tata, KT Thomas appointed trustees of PM CARES

    The Union government has appointed veteran industrialist Ratan Tata, former Supreme Court judge K.T. Thomas, and former Lok Sabha Deputy Speaker Kariya Munda as trustees of the PM CARES Fund.

    PM CARES Fund

    • The PM CARES Fund was created on 28 March 2020 following the COVID-19 pandemic in India.
    • The fund will be used for combat, containment and relief efforts against the coronavirus outbreak and similar pandemic like situations in the future.
    • The PM is the chairman of the trust. Members will include the defence, home and finance ministers.
    • The fund will also enable micro-donations. The minimum donation accepted is ₹10 (14¢ US).

    Some intriguing facts about PM-CARES fund

    • PM CARES has been created not by law, not by notification, but by the mere creation of a webpage, and set up last year in March to raise funds for those affected by the COVID-19 pandemic.
    • The page lists its structure, functions and duties in an arbitrary manner.
    • The official appeals for funds are made under the national emblem.
    • The most significant lie of this sworn statement is that the Government has no control over the Fund.

    The other funds

    (1) National Disaster Response Fund (NDRF)

    • The statutorily constituted NDRF was established under the Disaster Management (DM) Act of 2005.
    • The NDRF is mandated to be accountable, and answerable under the RTI Act, being a public authority, and auditable by the Comptroller and Auditor General of India.

    (2) Disaster Response Fund

    • The DM Act also provided for a Disaster Response Fund — state and district level funds (besides the national level).
    • It also collects and uses the donations at the local level, with mandatory transparency and audit provisions.

    (3) Prime Minister’s National Relief Fund

    • There is the PMNRF operative since the days of Jawaharlal Nehru. It was established with public contributions to assist displaced persons from Pakistan.
    • The resources are now utilised primarily to render immediate relief to families of those killed in natural calamities and to the victims of the major accidents and riots.
    • However, it has the President of India and the Leader of Opposition also as trustees.

    Issues over PM-CARES Fund

    • No defined purpose: It is deliberately ignored while a new, controversial, unanswerable, and ‘non-accountable vehicle is created; its character is not spelt out till today.
    • Non-accountable: The government seems to consider statutory provisions for enquiry and information seeking to be embarrassing obstacles.
    • Centralization of donations: It centralises the collection of donations and its utility, which is not only against the federal character but also practically inconvenient. The issue is seeming, the trusteeship of the fund.

    Questions and gaps

    • Law/statute: The PM CARES Fund was neither created by the Constitution of India nor by any statute.
    • Authority: If that is the case, under what authority does it use the designation of the Prime Minister, designated symbols of the nation, the tricolour and the official (gov.in) website of the PMO, and grant tax concessions through an ordinance.
    • Collection and dispensation: The amount received by the Fund does not go to the Consolidated Fund of India. If it goes to the CFI, it could have been audited by the CAG.
    • Uncontrolled: The This Trust is neither intended to be or is in fact owned, controlled or substantially financed by any instrumentality of the any govt even being chaired by the PM.

    Issue over tax benefits

    • Income tax: An ordinance was promulgated to amend Income Tax Act, 1961 and declare that the donations to the PM CARES Fund “would qualify for 80G benefits for 100% exemption”.
    • CSR Funds: It will also qualify to be counted as Corporate Social Responsibility (CSR) expenditure under the Companies Act, 2013.
    • Foreign donations: It has also got exemption under the FCRA [Foreign Contribution Regulation Act] and a separate account for receiving foreign donations has been opened.

    What can be inferred from all these?

    • The Centre now considers it as another obstacle and has created a new trust with the Prime Minister and his Ministers only.
    • The manner in which the PM CARES Fund was set up — with its acronym created to publicise the point that the PM cares for people — shows a bypassing of the statutory obligations of a public authority.

    Query and response: Again ironical

    • After initial denials, the Government has conceded it to be a public charitable trust, but still maintains that it is not a ‘public authority’.
    • The point is that the PMO operates the Fund, but says it cannot supply any information about the PM CARES Fund because it is not a public authority.

    Severe interpretations: Is it an Office of Profit?

    • If the PM CARES Fund is unconnected with the Government, then the Fund could become an office of profit.

    Conclusion

    • In order to uphold transparency, the PM CARES Fund should be declared as a Public Authority under the RTI Act, and all RTI queries answered truthfully.
    • The fund should be designated as a “public authority” under Section 2(h) of the RTI Act.

     

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  • Donations to recognised Political Parties come under EC lens

    The Election Commission’s ongoing drive to clean up the electoral space has now gone beyond RUPPs (registered unrecognised political parties) to cover recognised national and State parties.

    What is Political Funding?

    • Political Funding implies the methods that political parties use to raise funds to finance their campaign and routine activities.
    • A political party needs money to pitch itself, its objectives, and its intended actions to get votes for itself. (Reference)

    Why need political funding?

    • Across the world, political parties need access to money in order to reach out to the electorate, explain their policies and receive inputs from people.
    • And in order to do the same, parties resort to political party funding.

    Generally who makes these funding?

    • Individuals: One of the primary sources of this funding is voluntary contributions made by individuals.
    • Corporates: Besides this, corporates pay hefty donations to parties in different forms.
    • Foreign aid: This is yet another source but highly controversial.

    Statutory Provisions

    • Section 29B of the Representation of the People Act (RPA) entitles parties to accept voluntary contributions by any person or company, except a Government Company.
    • Section 29C of the RPA mandates political parties to declare donations that exceed 20,000 rupees. Such a declaration is made by making a report and submitting the same to the EC. Failure to do so on time disentitles a party from tax relief under the Income Tax Act, 1961.

    Methods used by Indian Political Parties

    1. Individual Persons: Section 29B of RPA allows political parties to receive donations from individual persons.

     

    1. State/Public Funding: Here, the government provides funds to parties for election related purposes. State Funding is of two types:
    • Direct Funding: The government provides funds directly to the political parties. Direct funding by tax is prohibited in India.
    • Indirect Funding: It includes other methods except direct funding, like free access to media, free access to public places for rallies, free or subsidized transport facilities. It is allowed in India in a regulated manner.

     

    1. Corporate Funding: In India, donations by corporate bodies are governed under the Companies Act, 2013. Section 182 of the Act provides that:
    • A company needs to be at least three years old to be able to donate to a political party.
    • Companies can donate up to 7.5% of average net profits made during three simultaneous preceding financial years. (Now removed after Finance Act, 2017)
    • Such contributions must be disclosed in the company’s profit and loss account. (Removed)

     

    1. Electoral Trusts: A non-profit company created in India for orderly receipt of voluntary contributions from any person like an individual or a domestic company.
    • According to the Election Commission Guidelines, all electoral trusts formed after January 2013 are required to declare details of the money received and disbursed.
    • The Central Government rules mandate these firms to donate 95% of their total income to registered political parties in a financial year.

    Issues with Political Funding

    • Money laundering: One of the biggest disadvantages of the corporate funding is the use of fake companies to route black money.
    • Influence of contributor: Influence of people and companies over political parties to which they provide funds.
    • Election malpractices: There are various gaps in Indian rules, the benefit of which political parties take to avoid any kind of reporting.
    • Money politics: Hidden sources of funding lead to more spending of funds in election campaigns, thus impacting the economy of the country.

    Recent steps taken

    • FCRA Reforms: In March, 2018, the government passed a key amendment to the Foreign Contribution Regulation Act, 2010 allowing foreign companies to fund political parties in India.
    • Electoral Bonds Schemes: The government notified the Electoral Bond Scheme on 2nd January, 2018 to establish and cleanse the system of political funding in the country.

    What is Electoral Bond Scheme?

    • An electoral bond is a bearer instrument like a Promissory Note.
    • It can be purchased by any citizen of India or a body incorporated in India to donate to the political party of their choice.
    • Donor’s name is not there on the bond.
    • These bonds can be used for making donations to the political parties registered under Section 29A of the RP Act, 1951.
    • The party should have secured not less than one per cent of the votes polled in the last general election to the Lok Sabha or a Legislative Assembly.

    Issues with the scheme

    • Opaque funding: While the identity of the donor is captured, it is not revealed to the party or public. So transparency is not enhanced for the voter.
    • No IT break: Also income tax breaks may not be available for donations through electoral bonds. This pushes the donor to choose between remaining anonymous and saving on taxes.
    • No anonymity for donors: The privacy of the donor is compromised as the bank will know their identity.
    • Differential benefits: These bonds will help any party that is in power because the government can know who donated what money and to whom.

    Way forward

    Former Chief Election Commissioner SY Quraishi has suggested an alternative worth exploring:

    • A National Electoral Fund to which all donors can contribute.
    • The funds would be allocated to political parties in proportion to the votes they get.
    • Not only would this protect the identity of donors, it would also weed out black money from political funding.
    • There can be a tax benefit for those who donate to the fund.

     

    Try this question from our AWE Initiative

    Q.2) Examine the issues with political funding in India. How far has the introduction of electoral bonds succeeded in dealing with the issues with political funding? (10 marks)

     

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  • The hijab case and the doctrine of essentiality

    doctrine of essentialityContext

    • A two-judge Bench of the Supreme Court of India is presently hearing arguments on the correctness of a Karnataka High Court judgment that upheld the ban on the use of the hijab by students in Karnataka which raises question on doctrine of essentiality.

     What is ‘doctrine of essentiality’?

    • A seven-judge Bench of the Supreme Court invented the doctrine of “essentiality” in the Shirur Mutt case in 1954. The court held that the term “religion” will cover all rituals and practices “integral” to a religion.

    Importance doctrine of essentiality

    • In the legal framework, the doctrine of essentiality is a doctrine that has evolved to protect the religious practices that are essential or integral and does not violate any fundamental right. India being a secular country has discrete religious beliefs and to deny any is to violate the freedom of religion.

    Why hijab is not an essential practice?

    • Wearing of hijab (head scarf) by Muslim women does not form a part of essential religious practices in Islamic faith and it is not protected under the right to freedom of religion guaranteed under Article 25 of the Constitution of India, the High Court of Karnataka declared on March 15 2022.

    doctrine of essentialityIs hijab essential part of Islam?

    • The Qur’an instructs Muslim women and men to dress modestly, and for some, the hijab is worn by Muslim girls and women to maintain modesty and privacy from unrelated males. According to the Encyclopedia of Islam and Muslim World, modesty concerns both men’s and women’s “gaze, gait, garments, and genitalia”.

    How do you identify essential religion practice?

    • The Court observed that in order to determine whether or not a particular practice is an essential part of religion, the test must be whether the absence of the practice itself

    Meaning of Article 26

    • Freedom to manage religious affairs Subject to public order, morality and health, every religious denomination or any section thereof shall have the right.

    doctrine of essentialityExamples of the essential religious practices test

    • While these issues are largely understood to be community-based, there are instances in which the court has applied the test to individual freedoms as well.
    • In a 2004 ruling, the Supreme Court held that the Ananda Marga sect had no fundamental right to perform the Tandava dance in public streets since it did not constitute an essential religious practice of the sect.
    • For example, in 2016, the Supreme Court upheld the discharge of an airman from the Indian Air Force for keeping a beard.
    • It distinguished the case of a Muslim airman from that of Sikhs who are allowed to keep a beard.
    • In 2015, the Supreme Court restored the Jain religious practice of Santhara/Sallekhana (a ritualistic fast unto death) by staying an order of the Rajasthan HC.

    doctrine of essentialityWhat is the Supreme Court’s judgement on Doctrine of Essentiality?

    • The doctrine of “essentiality” was invented by a seven-judge Bench of the Supreme Court in the ‘Shirur Mutt’ case in 1954.
    • It is a contentious doctrine evolved by the court to protect only such religious practices which were essential and integral to the religion.
    • The court held that the term “religion” will cover all rituals and practices “integral” to a religion, and took upon itself the responsibility of determining the essential and non-essential practices of a religion.
    • Referring to the Ayodhya case, the Constitution Bench had ruled in 1994 that A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in open.

    How has the doctrine been used in subsequent years?

    • The ‘essentiality doctrine’ of the Supreme Court has been criticised by several constitutional experts.
    • Scholars of constitutional law have argued that the essentiality/integrality doctrine has tended to lead the court into an area that is beyond its competence, and given judges the power to decide purely religious questions.
    • As a result, over the years, courts have been inconsistent on this question — in some cases they have relied on religious texts to determine essentiality.
    • In others it relied on the empirical behaviour of followers, and in yet others, based on whether the practice existed at the time the religion originated.

    Issues over the doctrine

    • In the beginning, the court engaged with the question of whether untouchability, manifested in restrictions on entry into temples, was an “essential part of the Hindu religion”.
    • After examining selected Hindu texts, it came to the conclusion that untouchability was not an essential Hindu practice.
    • The idea of providing constitutional protection only to those elements of religion which the court considers “essential” is problematic as it assumes that one element or practice of religion is independent of other elements or practices.
    • So, while the essentiality test privileges certain practices over others, it is, in fact, all practices taken together that constitute a religion.

    How does essentiality square up against religious freedom?

    • Freedom of religion was meant to guarantee freedom to practice one’s beliefs based on the concept of “inward association” of man with God.
    • The apex court in ‘Ratilal Panachand Gandhi vs The State of Bombay and Ors’ (March 18, 1954) acknowledged that “every person has a fundamental right to entertain such religious beliefs as may be approved by his judgment or conscience”.
    • The framers of the Constitution wanted to give this autonomy to each individual. Scholars have argued that the essentiality test impinges on this autonomy.
    • The apex court has itself emphasised autonomy and choice in its Privacy (2017), 377 (2018), and Adultery (2018) judgments.

    Its effect on society

    • Narrowing of safeguards to religious customs: It has allowed the Court to narrow the extent of safeguards available to religious customs by directly impinging on the autonomy of groups to decide for themselves what they deem valuable, violating, in the process, their right to ethical independence.
    • Negated legislation that might otherwise enhance the cause of social justice: It has also negated legislation that might otherwise enhance the cause of social justice by holding that such laws cannot under any circumstances encroach on matters integral to the practice of a religion. For example, in 1962, the Court struck down a Bombay law that prohibited excommunications made by the Dai of the Dawoodi Bohra community when it held that the power to excommunicate is an essential facet of faith and that any measure aimed at social welfare cannot reform a religion out of its existence.
    • A principle of anti-exclusion: Its application would require the Court to presume that a practice asserted by a religious group is, in fact, essential to the proponents of its faith. But regardless of such grounding, the Constitution will not offer protection to the practice if it excludes people on grounds of caste, gender, or other discriminatory criteria.

    Conclusion

    • For now, any Court hearing a matter touching upon a matter of faith has the unenviable task of acting not merely as an expert on law but also as an expert on religion.

    Mains question

    Q. Every person has a fundamental right to entertain such religious beliefs as may be approved by his judgment or conscience. Critically examine in context of doctrine of essentiality.

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  • Global digital governance

    digital governanceContext

    • In an interview earlier this month, Telecom Minister Ashwini Vaishnaw spoke about a comprehensive policy roadmap for India’s digital economy and digital governance.

    What is digital governance ?

    • Electronic governance or e-governance can be defined as the usage of Information and Communication Technology (ICT) by the government to provide and facilitate government services, exchange of information, communication transactions and integration of various standalone systems and services.

    What is “global digital governance”?

    • Global digital governance encompasses the norms, institutions, and standards that shape the regulation around the development and use of these technologies. Digital governance has long-term commercial and political implications.

    Why is it important?

    • The main objective of e-governance is to provide a friendly, affordable, and efficient interface between a government and its people. It is about ensuring greater transparency, accountability and objectivity, resulting in cost-effective and high-quality public service.

    What are the three domains of e-governance?

    • E-administration: improving government processes
    • E-services: connecting individual citizens with their government
    • E-society: building interactions with and within civil society.

    digital governanceIs there a historical parallel to governing key economic sectors globally?

    • Digital economy is not unprecedented: Sectors critical to the global economy are subject to international cooperation frameworks and pacts. Therefore, the idea of setting up a single multilateral organization with a mandate to govern the digital economy is not unprecedented.
    • The International Commission for Air Navigation (ICAN): Global aviation has been regulated since 1903 when the International Commission for Air Navigation (ICAN) first met, subsequently replaced by the International Civil Aviation Organization (ICAO) in 1947.
    • Bank for International Settlements (BIS): Similarly, the modern international banking system is governed by the Bank for International Settlements (BIS), an institution initially set up in the interwar period in 1930 to oversee Germany’s reparations to the Allies under the Treaty of Versailles. The BIS acquired a more global mandate beginning in the 1950s and is now partially responsible for global financial stability.

    Who are the key players in the global contest for digital governance?

    • China seeks to champion the concept of cyber sovereignty: An authoritarian vision drives the first model. Most notably, China is emerging as the standard-bearer for this model with its desire to “reinvent the internet.” China seeks to champion the concept of “cyber sovereignty,” allowing countries to control access to the internet, censor content, and institute data localization requirements, as a pretext to protecting individual national interests.
    • European Union’s General Data Protection Regulation (GDPR): Which provides a more democratic concept for digital governance. This model primarily seeks to protect the privacy and rights of internet users and online content consumers. Adopted with the overwhelming support of the European Parliament in 2014, the GDPR came into effect in May 2018, giving firms that rely on digital technologies the opportunity to modify their data usage and privacy policies. The adoption of the GDPR has been a turning point for global internet governance as consumers gained unprecedented control over their data in a manner that preserved freedom and openness online.

    digital governanceWhy global digital governance is important?

    • Minimum rights and protections for platform workers: Under the G20, the International Labour Organisation has already placed a proposal in the employment working group for digital labour platforms to develop an international governance system determining minimum rights and protections for platform workers.
    • Implementation of central bank digital currency projects: Similarly, on digital money, a reincarnated Bretton Woods is being advocated to address the distrust in private currencies and to coordinate the implementation of central bank digital currency projects.
    • Digital taxation: Finally, in the deeply contested area of digital taxation, the OECD facilitated Base Erosion and Profit Shifting (BEPS) negotiations and helped arrive at a global solution.
    • Digital sovereignty: The internet is splintering and digital sovereignty is now commonplace; yet, there is no better time for countries to come together and build a framework for global digital governance.

    digital governanceWhat are the big 5 tech companies called?

    • The Big Five tech giants—Apple, Amazon, Google (Alphabet), Meta, and Microsoft.

    Conclusion

    • The rapid digitalisation of the world along with a new focus on trust in the global supply chains for digital products and services presents tremendous opportunities for India and its youth.  It is now up to all of us to engage in a collective “sabka prayas” to realise New India’s economic potential.

    Mains question

    Q. The rapid digitalisation of the world along with a new focus on trust in the global supply chains for digital products and services presents tremendous opportunities for India. Comment.

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  • Death Penalty: SC moots fair hearing

    death

    The Supreme Court has referred to a Constitution Bench the question of how to provide accused in death penalty cases a “meaningful, real and effective” hearing of their mitigating circumstances before a trial judge.

    Death Penalty: A backgrounder

    • Capital punishment, sometimes called death penalty, is execution of an offender sentenced to death after conviction by a court of law for a criminal offense.
    • It should be distinguished from extrajudicial executions carried out without due process of law.
    • The term death penalty is sometimes used interchangeably with capital punishment, though imposition of the penalty is not always followed by execution, because of the possibility of commutation to life imprisonment.

    When is it awarded?

    • The term “Capital Punishment” stands for most severe form of punishment.
    • It is the punishment which is to be awarded for the most heinous, grievous and detestable crimes against humanity.
    • While the definition and extent of such crimes vary, the implication of capital punishment has always been the death sentence.

    Special factors on the death penalty jurisprudence in India

    (a) Increase in Sexual Offences

    • The report on death penalty published by NLU Delhi shows that the rate of awarding capital punishment to the offences of rape with murder is much higher than other offences.
    • There is no doubt that rape is one of the most heinous crimes.

    (b) Sedition and waging War against India

    • India has seen many cases of treason, terrorism and seditious activities.
    • It is in fact the most vulnerable state for such crimes.

    Judicial observations related to Death Penalty

    The Supreme Court has always said that the death sentence should be given rarely.

    Judgments against:

    (a) Mithu vs State of Punjab (1983):

    • The Supreme Court ruled that the mandatory death penalty is unconstitutional.
    • It struck down Section 303 in the IPC, which entailed a mandatory death sentence for a person who commits murder while serving a life term in another case.
    • The Supreme Court ruled Section 303 violated Articles 14 (right to equality) and 21 (right to life) since an unreasonable distinction was sought to be made between two classes of murders.

    (b) State of Punjab vs Dalbir Singh (2012):

    • Similarly, the Supreme Court ruled that mandatory death penalty as punishment for crimes under Section 27 (3) of the Arms Act, 1959, was unconstitutional.

    (c) Channulal Verma vs State of Chhattisgarh (2018):

    • In Channulal, the Supreme Court, through Justice Kurian Joseph noted that the time was appropriate to review the constitutionality of the death penalty and take into consideration reformative aspects of punishment

    Judgments in favour:

    • In Jagmohan Singh vs State of UP’ (1973), then in ‘Rajendra Prasad vs State of UP’ (1979), and finally in ‘Bachan Singh vs State of Punjab’ (1980) the Supreme Court affirmed the constitutional validity of the death penalty.
    • It said that if capital punishment is provided in the law and the procedure is a fair, just and reasonable one, the death sentence can be awarded to a convict.
    • This will, however, only be in the “rarest of rare” cases, and the courts should render “special reasons” while sending a person to the gallows.

    Avenues available to a Death-Row Convict

    • Confirmation by HC: After a trial court awards the death penalty, the sentence must be confirmed by a High Court. The sentence cannot be executed till the time the High Court confirms it, either after deciding the appeal filed by the convict, or until the period allowed for preferring an appeal has expired.
    • Review Petition: If the High Court confirms the death penalty and it is also upheld by the Supreme Court, a convict can file a review petition.
    • Curative Petition: If the review petition is rejected, the convict can file a curative petition for reconsideration of the judgment.
    • Mercy Petition: Under Article 72 of the Indian Constitution, the President shall have the power to grant pardons, reprieves, respites, or remissions of punishments or to suspend, remit or commute the sentence of any convicted person.

    Debate over Death Penalty

    Arguments in favor:

    • Forfeiture of life: Supporters of the death penalty believe that those who commit murder, because they have taken the life of another, have forfeited their own right to life.
    • Moral indignation of the victim: It is a just form of retribution, expressing and reinforcing the moral indignation not only of the victim’s relatives but of law-abiding citizens in general.
    • Highest form of Justice: For heinous crimes such as the Nirbhaya Gangrape Case, no other punishment could have deterred the will of the convicts.
    • Deterrent against crime: Capital punishment is often justified with the argument that by executing convicted murderers, we will deter would-be murderers from killing people.
    • Proportional punishment: The guilty people deserve to be punished in proportion to the severity of their crime.
    • Prevailing lawlessness: The crimes we are now witnessing cannot be addressed by simple punishments. We are seeing horrific attacks on women, young girls, minority communities and Dalits etc.
    • Prevention of crime is non-existent: Despite of stringent regulations, it is certainly visible that some crimes can never be prevented in our society.

    Arguments against:

    • Eye for an eye: Reformative justice is more productive, that innocent people are often killed in the search for retribution, and that “an eye for an eye makes the whole world blind.
    • Deterrence is a myth: Death penalty is not a deterrent to capital crimes state that there is no evidence to support the claim that the penalty is a deterrent.
    • Political tool of suppression: The authorities in some countries, for example Iran and Sudan, use the death penalty to punish political opponents.
    • Reverence for life’ principle: Death penalty is an immoral punishment since humans should not kill other humans, no matter the reasons, because killing is killing.
    • Stigma against killing: With the introduction of lethal injection as execution method, medical professionals participate in executions. Many professionals have now refused to administer such deaths.
    • Skewed justice systems: In many cases recorded by Amnesty International, people were executed after being convicted in grossly unfair trials, on the basis of torture-tainted evidence and with inadequate legal representation.
    • Discriminatory nature: The weight of the death penalty is disproportionally carried by those with less advantaged socio-economic backgrounds or belonging to a racial, ethnic or religious minority.
    • Penalizing the innocents: The risk of executing the innocent precludes the use of the death penalty. Our colonial history has witnessed many such executions.

    Other issues with such executions

    (a) Socio-Economic Factors

    • The recent statistics shows that the death row prisoners in India are more from the backward classes of the society.
    • The death row prisoners belong to backward classes and religious minorities and the majority of convicts’ families are living in adjunct poverty.
    • These people who are backward both in economic and social respects, are not in a position to here expensive lawyers and get proper representation in the Court.

    (b) Delayed Execution

    • The law provides for a long process before the execution of the convicts actually takes place.
    • The unexplained delay in execution can be a ground for commutation of death penalty, and an inmate, his or her kin, or even a public-spirited citizen could file a writ petition seeking such commutation.
    • Their trials are often cruelly forced to endure long periods of uncertainty about their fate.

    Way forward: Law Commission recommendations on death penalty

    The Law Commission of India in its 262nd Report (August 2015) recommended that:

    • Death penalty be abolished for all crimes other than terrorism related offences and waging war.
    • Measures such as police reforms, witness protection scheme and victim compensation scheme should be taken up expeditiously by the government.
    • It felt that time has come for India to move towards abolition of the death penalty. However the concern is often raised that abolition of death penalty for terrorism-related offences and waging war, will affect national security.

    Further, the Commission sincerely hopes that the movement towards absolute abolition will be swift and irreversible

     

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  • SC quota for Dalit Muslims and Christians

    The Centre is likely to soon decide on setting up a national commission to study the social, economic and educational status of Dalits who converted to religions other than Hinduism, Buddhism and Sikhism.

    What is the news?

    • Several petitions are pending before the Supreme Court seeking Scheduled Caste (SC) reservation benefits for Dalits who converted to Christianity or Islam.

    Dalit Convertees and Quota Benefits

    • The original rationale behind giving reservation to Scheduled Castes was that these sections had suffered from the social evil of untouchability, which was practised among Hindus.
    • Under Article 341 of the Constitution, the President may specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall…be deemed to be Scheduled Castes.
    • The first order under this provision was issued in 1950, and covered only Hindus.
    • Following demands from the Sikh community, an order was issued in 1956, including Sikhs of Dalit origin among the beneficiaries of the SC quota.
    • In 1990, the government acceded to a similar demand from Buddhists of Dalit origin, and the order was revised to state: “No person who professes a religion different from the Hindu, the Sikh or the Buddhist religion shall be deemed to be a member of Scheduled Caste.”

    Does this religion-based bar apply to converted STs and OBCs as well?

    • It does not.
    • The Department of Personnel and Training (DoPT) website states, “The rights of a person belonging to a Scheduled Tribe are independent of his/her religious faith.”
    • Following the implementation of the Mandal Commission report, several Christian and Muslim communities have found place in the Central and state lists of OBCs.

    What efforts have been made to include Muslims and Christians of Dalit origin among SCs?

    • After 1990, a number of Private Member’s Bills were brought in Parliament for this purpose.
    • In 1996, a government Bill called The Constitution (Scheduled Castes) Orders (Amendment) Bill was drafted, but in view of a divergence of opinions, the Bill was not introduced in Parliament.
    • Then government headed by PM Manmohan Singh set up two important panels:
    1. Ranganath Misra Commission: The National Commission for Religious and Linguistic Minorities, popularly known as the Ranganath Misra Commission, in October 2004 and
    2. Sachar Committee: A seven-member high-level committee headed by former Chief Justice of Delhi High Court Rajinder Sachar to study the social, economic, and educational condition of Muslims in March 2005.

    What did they recommend?

    • The Sachar Committee Report observed that the social and economic situation of Dalit Muslims and Dalit Christians did not improve after conversion.
    • The Ranganath Misra Commission, which submitted its report in May 2007, recommended that SC status should be completely de-linked from religion and Scheduled Castes should be made fully religion-neutral like Scheduled Tribes.

    Reception to these recommendations

    • The report was tabled in Parliament in 2009, but its recommendation was not accepted in view of inadequate field data and corroboration with the actual situation on the ground.
    • Few studies, commissioned by the National Commission for Minorities, was also not considered reliable due to insufficient data.

    What lies ahead?

    • Based on the recommendations of the Ranganath Misra Commission, there are some petitions pending before the Supreme Court, seeking reservation benefits for Christians and Muslims of Dalit orgin.
    • In the last hearing, a three-judge Bench gave the Solicitor General of India three weeks’ time to present the stand of the Union government on the issue.
    • The next hearing is awaited.

     

     

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  • What is the Plant Treaty?

     

    The ninth session of the governing body of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) has recently begun in New Delhi.

    Theme of this years event

    • The theme of the meeting is ‘Celebrating the Guardians of Crop Diversity: Towards an Inclusive Post-2020 Global Biodiversity Framework’.

    What is the Plant Treaty?

    • The International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) was adopted by the Food and Agriculture Organization of the United Nations November 3, 2001.
    • It was signed in 2001 in Madrid, and entered into force on 29 June 2004.
    • It is the first legally-binding international instrument to formally acknowledge the enormous contribution of indigenous people and small-holder farmers as traditional custodians of the world’s food crops.
    • It also calls on nations to protect and promote their rights to save and use the seeds they have taken care of for millennia.
    • The parties to this treaty have come together after nearly three years to discuss governance of agricultural biodiversity and global food security.

    Objectives of the treaty

    The treaty aims at:

    1. Guaranteeing food security through the conservation
    2. Exchange and sustainable use of the world’s plant genetic resources for food and agriculture (PGRFA)
    3. Fair and equitable benefit sharing arising from its use, as well as
    4. Recognition of farmers’ rights.

    Key feature: Annex 1 Crops

    • The treaty has implemented a Multilateral System (MLS) of access and benefit sharing, among those countries that ratify the treaty, for a list of 64 of some of the most important food and forage crops essential for food security and interdependence.
    • The genera and species are listed in Annex 1 to the treaty. The treaty facilitates the continued open exchange of food crops and their genetic materials.
    • The list of plant genetic material included in the Multilateral System of the Treaty is made of major food crops and forages.
    • The Forages are also divided in legume forages and grass forages.
    • They were selected taking into account the criteria of food security and country interdependence

     

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  • AP approaches SC over Three Capitals Issue

    capitals

    After much discontent on the High Court (HC) verdict in the three capitals case, the Andhra Pradesh government has finally challenged it in the Supreme Court through a special leave petition (SLP).

    AP’s move for three capitals

    • AP had introduced a ‘Three Capitals Act’ titled Andhra Pradesh Decentralisation and Inclusive Development of All Regions Act, 2020.
    • Thus, it was decided that:
    1. Amaravati was to be the Legislative capital
    2. Visakhapatnam the Executive capital and
    3. Kurnool the Judicial capital
    • However, the Andhra Pradesh High Court repealed this Act citing that the legislature has no competence to enact any law for shifting the three organs of the capital.

    Concerns raised by AP government

    • AP contended that the judgement was in violation of the basic structure of the Constitution as the HC cannot hold that the State does not have the powers to decide on its capital.
    • The judgement was against the doctrine of separation of powers as it sought to preempt the legislature from taking up the issue (of three capitals).
    • Further, it is argued that under the federal structure of the Constitution, every State has an inherent right to determine where it should carry out its capital functions from.

    Reasons for AP’s consideration

    (1) Viable option of Visakhapatnam

    • Vizag always had been the biggest city, after Hyderabad, even in the combined State.
    • It has all the settings to become a good living space.

    (2) Sri Krishna panel recommendations

    • The advantages and qualities of Visakhapatnam to become the capital was elaborately deliberated by the Sri Krishna Committee to study the alternatives for a new capital for the State of Andhra Pradesh.
    • Coming to suggestion for the alternative capital, the Committee primarily took up three things for consideration — creation of single city or super city in greenfield location, expanding existing cities and distributed development.

    (3) Decentralisation

    • This idea was elaborately described in the Sri Bagh pact.
    • The pact clearly defined decentralisation, for the benefit of all three main regions such as Coastal AP, Godavari and Krishna districts and Rayalaseema.

    Major practical problems

    • Continuum of work: The government argues that the Assembly meets only after gaps of several months, and government Ministers, officers, and staff can simply go to Amaravati when required.
    • Logistics nightmare: coordinating between seats of legislature and executive in separate cities will be easier said than done.
    • Time and costs of travel: The distances in Andhra Pradesh are not inconsiderable. Executive capital Visakhapatnam is 700 km from judicial capital Kurnool, and 400 km from legislative capital Amaravati.

    Examples of multi-capital states in India

    • Among Indian states, Maharashtra has two capitals– Mumbai and Nagpur (which holds the winter session of the state assembly).
    • Himachal Pradesh has capitals at Shimla and Dharamshala (winter).
    • The former state of Jammu & Kashmir had Srinagar and Jammu (winter) as capitals where Darbar Move is carried out.

    Back2Basics: Special Leave Petition

    • SLP hold a prime place in the Indian judicial system.
    • It provides the aggrieved party a special permission to be heard in Apex court in appeal against any judgment or order of any Court/tribunal in the territory of India.
    • It has been provided as a “residual power” in the hands of Supreme Court of India to be exercised only in cases when any substantial question of law is involved, or gross injustice has been done.
    • Article 136 vests the Supreme Court of India with a special power to grant special leave, to appeal against any judgment or order or decree.
    • It is discretionary power vested in the Supreme Court of India and the court may in its discretion refuse to grant leave to appeal.
    • The aggrieved party cannot claim special leave to appeal under Article 136 as a right, but it is privilege vested in the Supreme Court to grant leave to appeal or not.

     

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