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GS Paper: GS2

  • What kind of President does India need?

    Context

    India is going to elect its new President on July 18. The new President will be sworn in on July 25. Choosing the presidential candidate is an intensely political exercise.

    Election of the President

    • Direct or indirect election: The main question debated therein was whether India should have a directly elected President or an indirectly elected one.
    • The Assembly opted for an indirectly elected President.
    • Dr. B.R. Ambedkar said: “Our President is merely a nominal figurehead. He has no discretion; he has no powers of administration at all.”
    • Article 53 of the Constitution says that “the executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.”
    • It means the President exercises these powers only on the aid and the advice of the Council of Ministers.

    People’s presence in the election of the President

    • It is an indirect election in the sense that the people do not directly elect the President.
    • Under Article 54, the President is elected by an electoral college consisting of only the elected members of both Houses of Parliament and the elected members of the State and Union Territory Assemblies.
    • A matter of importance in this context is the vote value of Members of the Legislative Assemblies (MLAs) and the formula for its computation.
    •  The vote of an MLA, though one, is assigned a certain higher value.
    • This value is calculated by first dividing the total population of the State (as per the 1971 Census) by the total strength of the Assembly, and then the quotient is divided by one thousand.
    •  In the computation of the value, the population of the State figures in a significant way.
    •  In other words, the population of the country is a crucial factor in the election of the President, which means the people’s presence in the process of electing the President is very much visible.

    Moral authority of the President

    • Wider base: The people’s presence in the election of the President gives a wider base to the President than a mere vote by the legislators on the basis of one member, one vote.
    • This also gives the President a greater moral authority.
    • So, the Indian President is not and cannot be a mere rubber stamp.
    • Reconsideration of decision: He does not directly exercise the executive authority of the Union, but he can disagree with the decision of the Council of Ministers, caution them, counsel them, and so on.
    • The President can ask the Cabinet to reconsider its decisions.
    • However, the Cabinet, after such reconsideration, sends the same proposal back without any change, the President will have to sign it.

    Role of the President as envisage by the Constitution

    • Broader view of the things: The Constitution of India wants the President to be vigilant and responsive, and gives the freedom to him or her to take a broader view of things uninfluenced by the narrow political view of the executive.
    • Preserve, protect and defend the Constitution: The above point becomes clearer when we take a look at the oath the President takes before entering office.
    • The oath contains two solemn promises.
    • First, the President shall preserve, protect and defend the Constitution.
    • Second, the President shall devote himself or herself to the service and the well-being of the people of India.
    • Thus, it is possible for a President to disagree with the government or intervene on behalf of the citizenry against the tyranny of the executive and persuade it to give up its ways.

    Conclusion

    The method adopted for the election of the President and the promises made in the oath makes it clear that the President cannot act as a gramophone of the Prime Minister as mentioned by professor K.T. Shah.

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  • Assessing Juvenility a ‘Delicate Task’: SC

    The Supreme Court has given some guidelines for the delicate task of deciding whether juveniles aged between 16 and 18, accused of heinous offences such as murder can be tried like adults as per the JJ Act, 2005.

    Juvenile Justice Act, 2015

    • The JJ Act, 2015 replaced the Indian juvenile delinquency law, Juvenile Justice (Care and Protection of Children) Act, 2000.
    • It allows for juveniles in conflict with Law in the age group of 16–18, involved in Heinous Offences, to be tried as adults.
    • The Act also sought to create a universally accessible adoption law for India.
    • The Act came into force from 15 January 2016.

    Key features

    • Change in nomenclature from ‘juvenile’ to ‘child’ or ‘child in conflict with law’, across the Act to remove the negative connotation associated with the word “juvenile”
    • Inclusion of several new definitions such as orphaned, abandoned and surrendered children; and petty, serious and heinous offences committed by children;
    • Setting up Juvenile Justice Boards and Child Welfare Committees in every district. Both must have at least one woman member each.
    • Special provisions for heinous offences committed by children above the age of 16 years: This was in response to the juvenile convict in Nirbhaya Case.
    • Inclusion of new offences committed against children:  Sale and procurement of children for any purpose including illegal adoption, corporal punishment in child care institutions, use of child by militant groups, offences against disabled children and, kidnapping and abduction of children.
    • Penalties for cruelty against a child: Offering a narcotic substance to a child, and abduction or selling a child has been prescribed.

    What is the recent Supreme Court assessment?

    • The “delicate task” of deciding whether juveniles aged between 16 and 18, accused of heinous offences such as murder, can be tried like adults should be based on meticulous psychological investigation.
    • They should not left to the discretion and perfunctory “wisdom” of juvenile justice boards and children’s courts across the country, the Court held.

    What delicate tasks does the apex court is referring to?

    (1) Preliminary Assessment

    • Section 15 of the JJ Act requires a “preliminary assessment” to be done of the mental and physical capacity of juveniles, aged between 16 and 18, who are involved in serious crimes.
    • The assessment is meant to gauge a child’s ability to understand the consequences of the offence and the circumstances in which he or she allegedly committed the offence.
    • If the Juvenile Justice Board is of the opinion that the juvenile should not be treated as an adult, it would not pass on the case to the children’s court and hear the case itself.
    • If the Board decides to refer the case to the children’s court for trial as an adult, the juvenile, if guilty, would even face life imprisonment.

    (2) Mental capacity

    • The evaluation of ‘mental capacity and ability to understand the consequences’ of the child in conflict with law can should not be relegated as a routine task.
    • The process of taking a decision on which the fate of the child in conflict with law precariously rests, should not be taken without conducting a meticulous psychological evaluation.
    • The court said the Board which conducts the assessment of the child should have at least one child psychologist.

    Way forward

    • The court discovered that there were neither guidelines nor a specific framework in place for conduct of the preliminary assessment.
    • The court left it open for the Centre and the National Commission for Protection of Child Rights to consider issuing guidelines or directions in this regard.
    • It should further take the assistance of experienced psychologists or psychosocial workers.

     

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  • Election Symbol Disputes and ECI

    A political party in Maharashtra has approached the Election Commission of India (ECI), requesting it to hear its side before deciding claims to the party’s bow-arrow symbol.

    What is the news?

    • A party has lost a large number of members in the rebellion that eventually caused the fall of the government in Maharashtra.
    • The rebel has claimed to be the only original leader of the party on the basis of the support of more than two-thirds of the party’s legislators in the Maharashtra Assembly.

    Options for ECI

    • The ECI in all likelihood can freeze the symbol so that neither of the two sides is able to use it until a final decision is made.
    • EC hearings are long and detailed, and may take at least six months.

    EC’s powers in Election Symbol Dispute

    • The question of a split in a political party outside the legislature is dealt by Para 15 of the Symbols Order, 1968.
    • It states that the ECI may take into account all the available facts and circumstances and undertake a test of majority.
    • The decision of the ECI shall be binding on all such rival sections or groups emerged after the split.
    • This applies to disputes in recognised national and state parties.
    • For splits in registered but unrecognised parties, the EC usually advises the warring factions to resolve their differences internally or to approach the court.

    How did the EC deal with such matters before the Symbols Order came into effect?

    • Before 1968, the EC issued notifications and executive orders under the Conduct of Election Rules, 1961.
    • The most high-profile split of a party before 1968 was that of the CPI in 1964.
    • A breakaway group approached the ECI in December 1964 urging it to recognise them as CPI(Marxist). They provided a list of MPs and MLAs of Andhra Pradesh, Kerala and West Bengal who supported them.
    • The ECI recognised the faction as CPI(M) after it found that the votes secured by the MPs and MLAs supporting the breakaway group added up to more than 4% in the 3 states.

    What was the first case decided under Para 15 of the 1968 Order?

    • It was the first split in the Indian National Congress in 1969.
    • Indira Gandhi’s tensions with a rival group within the party came to a head with the death of President Dr Zakir Hussain on May 3, 1969.

    Is there a way other than the test of majority to resolve a dispute over election symbols?

    • In almost all disputes decided by the EC so far, a clear majority of party delegates/office bearers, MPs and MLAs have supported one of the factions.
    • Whenever the EC could not test the strength of rival groups based on support within the party organisation (because of disputes regarding the list of office bearers), it fell back on testing the majority only among elected MPs and MLAs.

    What happens to the group that doesn’t get the parent party’s symbol?

    • The EC in 1997 did not recognise the new parties as either state or national parties.
    • It felt that merely having MPs and MLAs is not enough, as the elected representatives had fought and won polls on tickets of their parent (undivided) parties.
    • The EC introduced a new rule under which the splinter group of the party — other than the group that got the party symbol — had to register itself as a separate party.
    • It could lay claim to national or state party status only on the basis of its performance in state or central elections after registration.

     

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  • Places in news: Paracel Islands

    A US destroyer sailed near the disputed Paracel Islands in the South China Sea, drawing an angry reaction from Beijing, which said its military had “driven away” the ship.

    About Paracel Islands

    • The Paracel Islands, also known as the Xisha Islands and the Hoang Sa Archipelago are a disputed archipelago in the South China Sea.
    • The archipelago includes about 130 small coral islands and reefs, most grouped into the northeast Amphitrite Group or the western Crescent Group.

    What is the South China Sea Dispute?

    • It is a dispute over territory and sovereignty over ocean areas, and the Paracels and the Spratlys – two island chains claimed in whole or in part by a number of countries.
    • China, Vietnam, the Philippines, Taiwan, Malaysia, and Brunei all have competing claims.
    • Alongside the fully-fledged islands, there are dozens of rocky outcrops, atolls, sandbanks, and reefs, such as the Scarborough Shoal.
    • China claims by far the largest portion of territory – an area defined by the “nine-dash line” which stretches hundreds of miles south and east from its most southerly province of Hainan.
    • Beijing says its right to the area goes hundreds of centuries to when the Paracel and Spratly island chains were regarded as integral parts of the Chinese nation.
    • It showed the two island groups falling entirely within its territory. Those claims are mirrored by Taiwan.

    Spat over Chinese claims

    • China has backed its expansive claims with island-building and naval patrols.
    • The US says it does not take sides in territorial disputes but has sent military ships and planes near disputed islands, calling them “freedom of navigation” operations to ensure access to key shipping and air routes.
    • Both sides have accused each other of “militarizing” the South China Sea.
    • There are fears that the area is becoming a flashpoint, with potentially serious global consequences.

     

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  • Bail Law and Supreme Court call for Reform

    The Supreme Court underlined the pressing need for reform in the law related to bail and called on the government to consider framing a special legislation on the lines of the law in the United Kingdom.

    What is Bail?

    • Bail is the conditional release of a defendant with the promise to appear in court when required.
    • The term also means the security that is deposited in order to secure the release of the accused.

    Types of Bail in India

    • Depending upon the sage of the criminal matter, there are commonly three types of bail in India:
    1. Regular bail: A regular bail is generally granted to a person who has been arrested or is in police custody. A bail application can be filed for the regular bail under section 437 and 439 of CrPC.
    2. Interim bail: This type of bail is granted for a short period of time and it is granted before the hearing for the grant of regular bail or anticipatory bail.
    3. Anticipatory bail: Anticipatory bail is granted under section 438 of CrPC either by session court or High Court. An application for the grant of anticipatory bail can be filed by the person who discerns that he may be arrested by the police for a non-bailable offense.

    Conditions for Grant of Bail in Bailable Offences

    • Section 436 of the Code of Criminal Procedure, 1973, lays down that a person accused of a bailable offense under IPC can be granted bail if:
    1. There are sufficient reasons to believe that the accused has not committed the offence.
    2. There is sufficient reason to conduct a further inquiry in the matter.
    3. The person is not accused of any offence punishable with death, life imprisonment or imprisonment up to 10 years.

    Conditions for Grant of Bail in Non-Bailable Offences

    • Section 437 of Code of Criminal Procedure, 1973 lays down that the accused does not have the right to apply for bail in non-bailable offences.
    • It is discretion of the court to grant bail in case of non-bailable offences if:
    1. The accused is a woman or a child, bail can be granted in a non-bailable offence.
    2. There is a lack of evidence then bail in non-Bailable offenses can be granted.
    3. There is a delay in lodging FIR by the complainant, bail may be granted.
    4. The accused is gravely sick.

    What is the recent ruling about?

    • The Supreme Court underlined that arrest is a draconian measure that needs to be used sparingly.
    • The ruling is essentially a reiteration of several crucial principles of criminal procedure.

    Why bail needs reform?

    • Huge pendency of undertrials: Referring to the state of jails in the country, where over two-thirds lodged are undertrials,
    • Indiscriminate arrests: Of this category of prisoners, majority may not even be required to be arrested despite registration of a cognizable offense, being charged with offenses punishable for seven years or less.
    • Disadvantageous for some sections: They are not only poor and illiterate but also would include women. Thus, there is a culture of offense being inherited by many of them.
    • Colonial legacy: Theoretically, the court also linked the idea of indiscriminate arrests to magistrates ignoring the rule of “bail, not jail” to a colonial mindset.

    What is the law on bail?

    • The CrPC does not define the word bail but only categories offences under the Indian Penal Code as ‘bailable’ and ‘non-bailable’.
    • The CrPC empowers magistrates to grant bail for bailable offences as a matter of right.
    • This would involve release on furnishing a bail bond, without or without security.

    And what is the UK law?

    • The Bail Act of the United Kingdom, 1976, prescribes the procedure for granting bail.
    • A key feature is that one of the aims of the legislation is “reducing the size of the inmate population”.
    • The law also has provisions for ensuring legal aid for defendants.
    • The Act recognises a “general right” to be granted bail.

    What has the Supreme Court held on reforms?

    The court’s ruling is in the form of guidelines, and it also draws the line on certain procedural issues for the police and judiciary:

    • Separate law on Bail: The court underlined that the CrPC, despite amendments since Independence, largely retains its original structure as drafted by a colonial power over its subjects.
    • Uniform exercise of discretionary powers: It also highlighted that magistrates do not necessarily
    • Avoid indiscriminate arrests: The SC also directed all state governments and Union Territories to facilitate standing orders to comply with the orders and avoid indiscriminate arrests.

     

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  • Child labour in India

    The Centre does not have any data on child labour in the country and a reason for this is the drying up of budgetary provisions meant for the National Child Labour Project (NCLP).

    What is Child Labour?

    • The term “child labour” is often defined as work that deprives children of their childhood, their potential and their dignity, and that is harmful to physical and mental development.
    • It refers to work that:
    1. is mentally, physically, socially or morally dangerous and harmful to children; and/or
    2. interferes with their schooling by: depriving them of the opportunity to attend school; obliging them to leave school prematurely; or requiring them to attempt to combine school attendance with excessively long and heavy work.

    National Child Labour Project (NCLP)

    • The NCLP Scheme is a Central Sector Scheme under the Ministry of Labour.
    • Under this Scheme the District Project Societies (DPS) are set up at the district level under the Chairmanship of the Collector/District Magistrate to oversee the implementation of the project.
    • Under this Scheme, the children in the age group of 9-14 years are withdrawn from work and put into NCLP Special Training Centres.
    • They are provided with bridge education, vocational training, mid-day meal, stipend, health care etc. before being mainstreamed into formal education system.
    • The children in the age group of 5-8 years are directly linked to the formal education system through a close coordination with the Sarva Shiksha Abhiyan.
    • A dedicated online portal named PENCiL (Platform for Effective Enforcement for No Child Labour) is developed for better monitoring and implementation.

    Why in news now?

    • No ministry had any data regarding the status of child labour in our country.
    • The NCLP’s schools for child labourers work for three to four years and they have also more or less stopped functioning due to scarcity of funds.
    • Education Ministry also does not have a mechanism to find out the number of children engaged in child labour.

    Grave concerns of the issue

    • This is a serious situation.
    • It is for the first time that a parliamentary panel is engaged in a detailed examination of the national policy on child labour.
    • Though we have legislation, the Child Labour (Prohibition and Regulation) Act, since 1986 the menace of child labour is continue unchecked.

    Various provisions against Child Labour

    • Article 23 of the Indian Constitution states that any type of forced labour is prohibited.
    • Article 24 states that a child under 14 years cannot be employed to perform any hazardous work.
    • Article 39 states that “the health and strength of workers, men and women, and the tender age of children are not abused”.
    • The Child Labour Act (Prohibition and Regulation) 1986 prohibits children under the age of 14 years to be working in hazardous industries and processes.

     

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  • Reasons for splits and switches in political parties

    Context

    In Maharashtra, recently, and in Madhya Pradesh, a while ago, splits in the ruling party and a subsequent realignment of legislators inaugurated new governments.

    Challenges to the effectiveness of anti-defection law

    • Splits and switches are commonplace in legislatures across the globe, and India has witnessed at least three distinct waves.
    • The first wave occurred towards the latter half of the 1960s when challengers to the Congress attempted to displace it in the States.
    • An attempt to end defections: The next phase was inaugurated with an attempt to end the free movement and regulate the behaviour of legislators through the anti-defection law.
    • Law incentivise collective defection: While the law discouraged individual movement, it incentivised a collective movement of legislators since it laid down specific numbers to legitimise and validate party switches.
    • Defeating the purpose: When legislators switch in groups, the costs are shared, and the move also appears less opportunistic, which in many ways defeats the purpose of the legislation.
    • The third phase was inaugurated in 2014 when already-dominant parties began to use splits and switches to weaken and destroy their competitors.
    • Therefore, the current phase is bizarre when compared to the past because dominant parties appear to be actively cheering splits and shifts and having no respect for the basic rules of the game.
    • The anti-defection law and control of institutions are now weaponised by dominant parties to intervene in the internal working of Opposition parties, and sometimes make and break them.
    • Furthermore, legislators are switching support even if it does not count to the making or maintenance of governments.

    Argument against the split

    • Violation of trust: Switchers violate the trust relationship with their constituents as voters get something other than what they bargained for.
    • Difficulty in ensuring accountability: Assuming voters vote for parties and not candidates, the argument is that uncohesive parties make it difficult for voters to draw definitive lines of responsibility.
    • Consequently, it is difficult for voters to hold party governments accountable for their actions during elections.

    Why do legislators split and switch parties?

    • Changes and transformation in parties: While we keep track of party system change, we ignore the point that the component parts, parties which make up the system, too change and transform.
    • Parties constantly adapt new modes to sustain and find success for themselves.
    • Our popular image of a party is that of the classical mass party, which rises from societal movements and is essentially internally democratic.
    • This is what even the Election Commission of India imagines a party should be since many of its guidelines lay stress on the ‘democratic spirit’ and the need for transparency and participation in internal decision-making.
    • Centralised structure: Today’s parties are centralised vote-getting machines which primarily work to ensure the return of political leaders to office.
    • Focus on getting votes: Mass inputs and ideas do not matter, and it is the central leadership that counts. All party activities begin and end with elections.
    • Since parties are mainly concerned with electoral success, anyone who enjoys the confidence of the top leadership and can help increase the seat share is likely to get a ticket.
    • Dominance of financial power: Moreover, we now know that parties prefer candidates who bring in their own money, fund other candidates and raise resources for the party. All this puts the party on the ground in the shade.
    • Closeness of parties to state: the most significant change is that parties are more closely aligned with the state rather than civil society.
    • Parties as a source of services: Parties exchange material and psychological rewards, and goods and services the state provides for electoral advantage.
    • Voters also see parties as a supplier of services.
    • This connection pushes legislators and parties to be in government or at least close to the government.
    • On the supply side, the party on the ground no longer calls the shots; parties are election vehicles and a supplier of services. The party bond exists only as long as it ensures success for the legislator
    •  On the demand side, the voter does not appear to have any problem, as long as “services” are available.

    Conclusion

    Splits and switches are not seen as objectionable by legislators and are not punished by voters as well. Legislators will, therefore, be willing to do anything if the benefits exceed the costs.

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  • India’s new West Asia approach is a welcome break with past diffidence

    Context

    The first summit this week of I2U2, which brings together India, Israel, the United Arab Emirates and the United States – is exploratory in nature.

    I2U2 forum

    • Following the Abraham Accords between Israel and the UAE, I2U2 was founded in October 2021 to address marine security, infrastructure, and transportation challenges in the region.
    • It was known as the ‘International Forum for Economic Cooperation’at the time. At that time, UAE had referred to the new grouping as the ‘West Asian Quad’.
    • I2U2 seeks to empower the partners and encourages them to collaborate more closely, resulting in a more stable region.
    • India is seen as a large consumer market as well as a large producer of high-tech and highly sought-after items in the United States.
    • This has led India to enhance its relationship with Israel without jeopardising its ties with the UAE and other Arab states.

    How I2U2 matters to India

    • India can contribute to peace and prosperity in the region: The initiative signifies the US bet that India can contribute significantly to peace and prosperity in the region.
    • West Asian engagement: It also underlines a new political will in Delhi to break the old taboos on India’s West Asian engagement.
    • Consolidation of  India’s Middle East Policy: The I2U2 marks the consolidation of a number of new trends in India’s Middle East policy that acquired greater momentum in the past few years.
    • What stands out sharply in India’s new thinking in the Middle East is that the summit involves three countries that Delhi had traditionally kept a safe political distance from.

    India-Israel relations

    • Although India was one of the first countries to extend recognition to Israel in 1950, Jawaharlal Nehru held back from establishing full diplomatic relations with the Jewish state.
    •  PV Narasimha Rao reversed that policy in 1992 but he did not travel to Israel nor did he receive an Israeli prime minister.
    • Atal Bihari Vajpayee of the BJP, which had a more empathetic view of Israel, hosted Israeli PM Ariel Sharon in 2003.
    • While the relationship steadily expanded, there was ideological reluctance in Delhi to give the partnership a political profile.
    • In the past few years India imparted a political character to the Israel ties.
    • No backlash from the Arab countries: There was little negative reaction to the more open pursuit of India’s ties with Israel.
    • The problem was never with the Middle East but Delhi’s ideological preconceptions that distorted India’s view of the region.
    • Turkey, now a champion of political Islam, had diplomatic ties with Israel since 1949.
    • Egypt normalised ties in 1980.
    • Under the Abrahamic accords promoted by the Trump Administration, the UAE, Bahrain, Sudan and Morocco set up formal ties with Israel in 2020.

    India’s relations with the Arab countries

    • India’s engagement with Israel was matched by effort to deepen India’s ties with the Arab world.
    •  During his first visit to Israel in 2018, Prime Minister Mode also became the first Indian PM to visit Palestine.
    • Even more important has been the transformation of India’s relations with the Gulf Kingdoms, especially the UAE and Saudi Arabia.
    • India’s traditional preference in the Arab world was for engaging the republics.
    • Engagement with monarchies: Delhi remained wary of engagement with the monarchies, telling itself that they were pro-Pakistan.
    •  No Indian PM visited Saudi Arabia between 1982 and 2010 and UAE between 1981 and 2015.
    • After 2015 India developed strong ties with these governments without a reference to Pakistan.
    • Despite Delhi’s ideological posturing, the Middle East had long ceased to be a political priority for India.
    • In contrast with the past, recently the prime minister has travelled four times to the UAE alone, negotiated a free trade agreement with it, and has ambitious plans for the transformation of bilateral relations.
    • The UAE has also backed India’s 2019 constitutional changes in Kashmir and is ready to invest in the union territory.

    Change in India’s approach to the region

    • India-US ties: For political Delhi, the US and Western policies in the region were a main part of the problem.
    • The immediate focus of Nehru’s policy after independence was to actively oppose US moves in the region in the name of promoting an “area of peace”.
    • That policy had no lasting impact as many regional countries sought active economic, political, and security cooperation with the US and the West.
    • The I2U2 then marks a big break from the anti-Western tradition in India’s approach to the region.
    • Negotiating the terms of joint engagement: In the past, standing up to the West in the Middle East was part of India’s approach, India now is prepared to confidently negotiate the terms of a joint engagement.

    Conclusion

    India’s participation in the West Asian Quad brings Delhi in line with other major powers– including Europe, China, and Russia – to try and engage all parties in the region. The I2U2 sets the stage for a new and dynamic phase in India’s relations with the Middle East.

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    Back2Basics: Abraham Accords

    • The Israel–UAE normalization agreement is officially called the Abraham Accords Peace Agreement.
    • It was initially agreed to in a joint statement by the United States, Israel and the United Arab Emirates (UAE) on August 13, 2020.
    • The UAE thus became the third Arab country, after Egypt in 1979 and Jordan in 1994, to agree to formally normalize its relationship with Israel as well as the first Persian Gulf country to do so.
    • Concurrently, Israel agreed to suspend plans for annexing parts of the West Bank.
    • The agreement normalized what had long been informal but robust foreign relations between the two countries.

  • Parliamentary Committee opposes Mediation Bill

    The Parliamentary Standing Committee on Law and Justice has recommended substantial changes to the Mediation Bill.

    Mediation Bill, 2021

    • Mediation is a voluntary dispute resolution process.
    • It is an informal, confidential, flexible, and non-binding process in which an impartial person called a “mediator” helps the parties to understand the interests of everyone involved, and their practical and legal choices.
    • The Bill requires persons to try to settle civil or commercial disputes through mediation before approaching any court or tribunal.
    • Agreements resulting from mediation will be binding and enforceable in the same manner as court judgments.

    Key features of the Bill

    (1) Pre-litigation mediation

    • Parties must attempt to settle civil or commercial disputes by mediation before approaching any court or certain tribunals.
    • Even if they fail to reach a settlement through pre-litigation mediation, the court or tribunal may at any stage refer the parties to mediation if they request for the same.

    (2) Disputes not fit for mediation

    • The Bill contains a list of disputes which are not fit for mediation.
    • These include disputes: (i) relating to claims against minors or persons of unsound mind, (ii) involving criminal prosecution, and (iii) affecting the rights of third parties.
    • The central government may amend this list.
    • It will apply to mediations conducted in India: (i) involving only domestic parties, (ii) involving at least one foreign party and relating to a commercial dispute (i.e., international mediation).

     (3) Mediation process

    • Mediation proceedings will be confidential, and must be completed within 180 days (may be extended by 180 days by the parties).
    • A party may withdraw from mediation after two sessions.
    • Court annexed mediation must be conducted as per the rules framed by the Supreme Court or High Courts.

    (4) Mediators

    • Mediators may be appointed by: (i) the parties by agreement, or (ii) a mediation service provider (an institution administering mediation).
    • They must disclose any conflict of interest that may raise doubts on their independence.
    • Parties may then choose to replace the mediator.

    (5) Mediation Council of India

    • The central government will establish the Mediation Council of India.
    • The Council will consist of a chairperson, two full-time members (with experience in mediation or ADR), three ex-officio members (including the Law Secretary, and the Expenditure Secretary), and a part-time member from an industry body.
    • Functions of the Council include: (i) registration of mediators, and (ii) recognising mediation service providers and mediation institutes (which train, educate, and certify mediators).

    (6) Mediated settlement agreement

    • Agreements resulting from mediation (other than community mediation) will be final, binding, and enforceable in the same manner as court judgments.
    • They may be challenged on grounds of: (i) fraud, (ii) corruption, (iii) impersonation, or (iv) relating to disputes not fit for mediation.

    (7) Community mediation

    • This may be attempted to resolve disputes likely to affect the peace and harmony amongst residents of a locality.
    • It will be conducted by a panel of three mediators (may include persons of standing in the community, and representatives of resident welfare associations).

    Issues highlighted by the Parliamentary Committee

    • Compulsion: The panel cautioned against making compulsory pre-litigation mediation.
    • Scope for Delay: Making pre-litigation mediation mandatory may actually result in delaying of cases.
    • Judicial intervention: The provision to give higher courts the power to frame rules for mediation was also questioned.
    • Narrower scope: The members questioned the non-applicability of the provisions to non-commercial disputes involving the Government and its agencies.
    • No bar of experienced professionals: The MCI, established to regulate the profession of mediators, may not have representation of practising mediators with adequate experience.
    • Prior approval from centre: The MCI requires prior approval from the central government before issuing regulations related to its essential functions.  It is not clear why such prior approval is required.
    • Domestic conduct of mediation: The Bill applies to international mediations only if they are conducted in India and not outside.

    Why need a law on Mediation?

    • Fast: Because the amount of time necessary for the parties and therefore the Mediator to organize for the mediation is significantly way less as that needed for trial or arbitration, a mediation of dispute can occur relatively early.
    • Flexible: There exists no set formula for mediation. Different Mediators employ different styles. Procedures are often modified to satisfy the requirements of a specific case.
    • Cost Efficient: Because mediation generally requires less preparation, is very less formal than trial or arbitration, and may occur at an early stage of the dispute.
    • Brings Parties Together: Parties can save and sometimes rebuild their relationship like during a family dispute or commercial dispute.
    • Convenient: The parties can control the time, location, and duration of the proceedings to large extent. Scheduling isn’t subject to the convenience of courts.
    • Creative: Resolutions that aren’t possible through arbitration or judicial determination could also be achieved.
    • Confidential: What’s said during mediation are often kept confidential. Parties wishing to avoid the glare of publicity can use mediation to stay their disputes low-key and personal
    • Control: The parties control the result of the mediation and either party has the advantage of terminating the mediation, if it’s felt that it’s not within the interest of the said party.

     

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  • In news: Pardoning Power of the President

    The Supreme Court has held that the Centre was “bound to advise” the President to remit the life sentence of gangster Abu Salem in the 1993 Mumbai blasts case on his completion of 25 years of his jail term.

    What did the SC say?

    • On the appellant completing 25 years of his sentence, the Central government is bound to advise the President for the exercise of his powers under Article 72 of the Constitution.
    • The Centre could itself consider remission on the completion of 25 years’ sentence in terms of Sections 432 and 433 of the Code of Criminal Procedure.

    What is Pardon?

    • A pardon is a government/executive decision to allow a person to be absolved of guilt for an alleged crime or other legal offense as if the act never occurred.

    Why need Pardon?

    • Pardons can be granted when individuals are deemed to have demonstrated that they have “paid their debt to society”, or are otherwise considered to be deserving of them.
    • Pardons are sometimes offered to persons who were either wrongfully convicted or who claim that they were wrongfully convicted.
    • Pardons are sometimes seen as a mechanism for combating corruption, allowing a particular authority to circumvent a flawed judicial process to free someone that is seen as wrongly convicted.

    What is the Article 72?

    • Article 72 says that the president shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offense.
    • There are five different types of pardoning:
    1. Pardon: means completely absolving the person of the crime and letting him go free. The pardoned criminal will be like a normal citizen.
    2. Commutation: means changing the type of punishment given to the guilty into a less harsh one, for example, a death penalty commuted to a life sentence.
    3. Reprieve: means a delay allowed in the execution of a sentence, usually a death sentence, for a guilty person to allow him some time to apply for Presidential Pardon or some other legal remedy to prove his innocence or successful rehabilitation.
    4. Respite: means reducing the quantum or degree of the punishment to a criminal in view of some special circumstances, like pregnancy, mental condition etc.
    5. Remission: means changing the quantum of the punishment without changing its nature, for example reducing twenty year rigorous imprisonment to ten years.

    Cases as specified by art. 72

    In all cases where the punishment or sentence:

    • is by a court-martial
    • is for an offence against any law relating to a matter to which the executive power of the Union extends
    • is a sentence of death

    Nature of the Pardoning Power

    • The pardoning power of the president is not absolute. It is governed by the advice of the Council of Ministers.
    • This has not been discussed by the constitution but is the practical truth.
    • Further, the constitution does not provide for any mechanism to question the legality of decisions of presidents or governors exercising mercy jurisdiction.
    • But the SC in Epuru Sudhakar Case has given a small window for judicial review of the pardon powers of President and governors for the purpose of ruling out any arbitrariness.
    • The court has earlier held that court has retained the power of judicial review even on a matter which has been vested by the Constitution solely in the Executive.

    Some traditions

    • It is important to note that India has a unitary legal system and there is no separate body of state law.
    • All crimes are crimes against the Union of India.
    • Therefore, a convention has developed that the governor’s powers are exercised for only minor offenses.
    • While requests for pardons and reprieves for major offenses and offenses committed in the UTs are deferred to the President.

    Try this PYQ:

    Who/Which of the following is the custodian of the Constitution of India?

    (a) The President of India

    (b) The Prime Minister of India

    (c) The Lok Sabha Secretariat

    (d) The Supreme Court of India

     

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