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GS Paper: GS2

  • Speedy trial a fundamental right: HC

    The Bombay High Court has said that speedy trial is a fundamental right highlighting the issue of people languishing in prisons waiting for the trial to begin.

    Background

    • The HC was hearing a petition seeking a judicial probe into the death of a tribal rights activist.
    • The petitioner told the court that he was not looking for the cause of the death, but an inquiry into what happened in jail that ultimately led to his death.

    Right to speedy trial

    • It is a right under which it is asserted that a government prosecutor may not delay the trial of a criminal suspect arbitrarily and indefinitely.
    • Otherwise, the power to impose such delays would effectively allow prosecutors to send anyone to jail for an arbitrary length of time without trial.
    • Right to speedy trial is a concept gaining recognition and importance day by day.

    Its constitutional status

    • The right to speedy trial is guaranteed under Article 21 of the Constitution of India.
    • In the case Kartar Singh v. State of Punjab (1961) it was declared that right to speedy trial is an essential part of fundamental right to life and liberty.
    • Article 21 declares that “no person shall be deprived of his life or personal liberty except according to the procedure laid by law.”

    What causes delay?

    • Delay in disposition of cases due to huge pendency
    • Provision for adjournment
    • Vacation of the court
    • Investigative agencies generally delay

    Why speedy trial is necessary?

    The right to a speedy trial serves several important purposes:

    • First, requiring a speedy trial helps to ensure that a defendant does not have to spend an unreasonable amount of time in jail.
    • It also helps to respect and protect the mental health of the defendant by making sure that the defendant is not kept in suspense or anxiety over pending criminal charges for months or years at a time.
    • The right to a speedy trial protects a defendant’s ability to gather evidence for his or her own defense.
    • Over time, physical evidence can become harder and harder to locate, and witnesses may move, lose their memories of an event, or even pass away.

    Alternative solutions

    • The Law Commission of India and the Malimath Committee recommended that the system of plea bargaining should be introduced in Indian criminal justice system.
    • Plea bargaining refers to a person charged with a criminal offence negotiating with the prosecution for a lesser punishment than what is provided in law by pleading guilty to a less serious offence.
    • This will facilitate the speedy disposal of criminal cases and reduces the burden on the courts at least for some minor trials and not serious criminal offences.

  • [pib] SMILE Scheme for persons engaged in the act of begging

    The Ministry of Social Justice and Empowerment has formulated a scheme “SMILE – Support for Marginalized Individuals for Livelihood and Enterprise”.

    SMILE Scheme

    • This scheme is sub-scheme under the ‘Central Sector Scheme for Comprehensive Rehabilitation of persons engaged in the act of Begging’.
    • It covers several comprehensive measures including welfare measures for persons who are engaged in the act of begging.
    • The focus of the scheme is extensively on rehabilitation, provision of medical facilities, counselling, basic documentation, education, skill development, economic linkages and so on.
    • The scheme would be implemented with the support of State/UT Governments/Local Urban Bodies, Voluntary Organizations, Community Based Organizations (CBOs), institutions and others.
    • Scheme provides for the use of the existing shelter homes available with the State/UT Governments and Urban local bodies for rehabilitation of the persons engaged in the act of Begging.
    • In case of non-availability of existing shelter homes, new dedicated shelter homes are to be set up by the implementing agencies.

  • SC quashes some provisions of 97th Amendment dealing with co-operative societies

    In a major boost for federalism, the Supreme Court has struck down parts of the 97th Constitution amendment which shrank the exclusive authority of States over their cooperative societies.

    Background

    • The Gujarat High Court in 2013 had held that the amendment, to the extent it introduced conditions for state laws on co-operative societies, was liable to be struck down.
    • This amendment was passed without the ratification of one-half of the state legislatures as mandated by Article 368(2) of the Constitution.
    • As per Article 368(2), ratification of one-half of state legislatures is required for an amendment that makes changes to an entry in the state list.
    • Since co-operative societies were a state subject as per Entry 32 in List II of the Seventh Schedule, the amendment introducing Part IX B required ratification as per Article 368(2), the High Court ruled.

    What was 97th Amendment about?

    • The 97th constitutional amendment dealt with issues related to the effective management of cooperative societies in the country.
    • It was passed by Parliament in December 2011 and had come into effect from February 15, 2012.
    • Part IXB, introduced in the Constitution through the 97th Amendment of 2012, dictated the terms for running cooperative societies.
    • The provisions in the amendment went to the extent of determining the number of directors a society should have or their length of tenure and even the necessary expertise.

    What is the recent Judgement?

    • In a majority judgment, the supreme court has held that cooperative societies come under the “exclusive legislative power” of State legislatures.
    • The judgment may be significant in the background of fears voiced by the States whether the new Central Ministry of Cooperation would disempower them.
    • The change in the Constitution has amended Article 19(1)(c) to give protection to the cooperatives and inserted Article 43 B and Part IX B, relating to them.
    • The Centre has contended that the provision does not denude the States of its power to enact laws with regard to cooperatives.

    Exceptions to the amendment

    • The Supreme court did not strike down the portions of Part IXB of the Amendment concerning “Multi-State Cooperative Societies” due to the lack of ratification.
    • When it comes to Multi-State Co-operative Societies (MSCS) with objects not confined to one State, the legislative power would be that of the Union of India.

    What was the dissenting opinion?

    • In his dissent, Justice K.M. Joseph said the doctrine of severability would not operate to distinguish between single-State cooperatives and MSCS.
    • The judge said the entire Part IXB should be struck down on the ground of absence of ratification.

    Back2Basics: Doctrine of Severability

    • Article 13 deals with laws inconsistent with or in derogation of fundamental rights.
    • It also deals with all laws enforced in India, before the commencement of the Constitution.
    • The doctrine of Severability in Article 13 can be understood in two dimensions
    1. Article 13(1) validates all Pre-Constitutional Law and thereby declares that all pre-Constitutional laws in force before the commencement of the Indian Constitution shall be void if they are inconsistent with the fundamental rights.
    2. Article 13(2) mandates the State that it shall not make any law that takes away or abridges the fundamental rights conferred in Part III of the Indian Constitution and any law contraventions this clause shall be void.
    • This doctrine widens the scope for Judicial Review on unconstitutional parts of any law.

  • What is Privilege Motion?

    A spokesperson of the non-ruling political party has said that he will move a privilege motion against the Health Minister for misleading Parliament that no deaths were reported specifically because of shortage of oxygen.

    Breach of Privilege

    • Parliamentary privilege refers to the right and immunity enjoyed by legislatures, in which legislators are granted protection against civil or criminal liability for actions done or statements made in the course of their legislative duties.
    • The powers, privileges and immunities of either House of the Indian Parliament and of its Members and committees are laid down in Article 105 of the Constitution.
    • Article 194 deals with the powers, privileges and immunities of the State Legislatures, their Members and their committees.

    What is a privilege motion?

    • Parliamentary privileges are certain rights and immunities enjoyed by members of Parliament, individually and collectively, so that they can “effectively discharge their functions”.
    • When any of these rights and immunities are disregarded, the offence is called a breach of privilege and is punishable under law of Parliament.
    • A notice is moved in the form of a motion by any member of either House against those being held guilty of breach of privilege.
    • Each House also claims the right to punish as contempt actions which, while not breach of any specific privilege, are offences against its authority and dignity.

    What are the rules governing privilege?

    • Rule No 222 in Chapter 20 of the Lok Sabha Rule Book and correspondingly Rule 187 in Chapter 16 of the Rajya Sabha rulebook govern privilege.
    • It says that a member may, with the consent of the Speaker or the Chairperson, raise a question involving a breach of privilege either of a member or of the House or of a committee thereof.
    • The rules however mandate that any notice should be relating to an incident of recent occurrence and should need the intervention of the House.
    • Notices have to be given before 10 am to the Speaker or the Chairperson.

    What is the role of the Speaker/Rajya Sabha Chair?

    • The Speaker/RS chairperson is the first level of scrutiny of a privilege motion.
    • The Speaker/Chair can decide on the privilege motion himself or herself or refer it to the privileges committee of Parliament.
    • If the Speaker/Chair gives consent under Rule 222, the member concerned is given an opportunity to make a short statement.

    What is the privileges committee?

    • In the Lok Sabha, the Speaker nominates a committee of privileges consisting of 15 members as per respective party strengths.
    • A report is then presented to the House for its consideration. The Speaker may permit a half-hour debate while considering the report.
    • The Speaker may then pass final orders or direct that the report be tabled before the House.
    • A resolution may then be moved relating to the breach of privilege that has to be unanimously passed.
    • In the Rajya Sabha, the deputy chairperson heads the committee of privileges, which consists of 10 members.

    Answer this PYQ in the comment box:

    Q.With reference to the Parliament of India, which of the following Parliamentary Committees scrutinizes and reports to the House whether the powers to make regulations, rules, sub-rules, by-laws etc. conferred by the constitution of delegated by the Parliament are being properly exercised by the Executive within the scope of such delegation?

    (a) Committee on Government Assurances

    (b) Committee on Subordinate Legislation

    (c) Rules Committee

    (d) Business Advisory Committee

  • Surveillance reform is the need of the hour

    Context

    The ‘Pegasus Project’ report says that over “300 verified Indian mobile telephone numbers, including those used by ministers, opposition leaders, journalists, the legal community, businessmen, government officials, scientists, rights activists and others”, were targeted using spyware made by the Israeli firm, NSO Group.

    Threat to press freedom

    • Revelations highlight a disturbing trend with regard to the use of hacking software against dissidents and adversaries.
    • A significant number of Indians reportedly affected by Pegasus are journalists.
    • This is not surprising since the World Press Freedom Index produced by Reporters Without Borders has ranked India 142 out of 180 countries in 2021. 
    • The press requires (and in democracies is afforded) greater protections on speech and privacy.
    • Privacy and free speech are what enable good reporting.
    • This has been recognised in Supreme Court decisions.
    • In the absence of privacy, the safety of journalists, especially those whose work criticises the government, and the personal safety of their sources is jeopardised.
    • Such a lack of privacy, therefore, creates an aura of distrust around these journalists and effectively buries their credibility.

    Issues with the legal provision

    • Provisions of law under the Indian Telegraph Act of 1885 and the Information Technology (IT) Act of 2000 are used by the government for its interception and monitoring activities. 
    • While the provisions of the Telegraph Act relate to telephone conversations, the IT Act relates to all communications undertaken using a computer resource.
    • Both provisions are problematic and offer the government total opacity in respect of its interception and monitoring activities.
    • Section 69 of the IT Act and the Interception Rules of 2009 are even more opaque than the Telegraph Act, and offer even weaker protections to the surveilled.
    • No provision, however, allows the government to hack the phones of any individual since the hacking of computer resources, including mobile phones and apps, is a criminal offence under the IT Act.

    Issues with surveillance system

    • Surveillance itself, whether under a provision of law or without it, is a gross violation of the fundamental rights of citizens.
    • Violation of freedom of speech: The very existence of a surveillance system impacts the right to privacy and the exercise of freedom of speech and personal liberty under Articles 19 and 21 of the Constitution, respectively.
    • It prevents people from reading and exchanging unorthodox, controversial or provocative ideas.
    • No scope for judicial scrutiny: There is also no scope for an individual subjected to surveillance to approach a court of law prior to or during or subsequent to acts of surveillance since the system itself is covert.
    • No oversight: In the absence of parliamentary or judicial oversight, electronic surveillance gives the executive the power to influence both the subject of surveillance and all classes of individuals, resulting in a chilling effect on free speech.
    • Against separation of power: Constitutional functionaries such as a sitting judge of the Supreme Court have reportedly been surveilled under Pegasus.
    • Vesting such disproportionate power with one wing of the government threatens the separation of powers of the government.
    • The existing provisions are insufficient to protect against the spread of authoritarianism since they allow the executive to exercise a disproportionate amount of power.

    Way forward

    • There needs to be oversight from another branch of the government.
    • Judicial oversight: Only the judiciary can be competent to decide whether specific instances of surveillance are proportionate, whether less onerous alternatives are available, and to balance the necessity of the government’s objectives with the rights of the impacted individuals.
    • Surveillance reforms: Not only are existing protections weak but the proposed legislation related to the personal data protection of Indian citizens fails to consider surveillance while also providing wide exemptions to government authorities.
    • Surveillance reform is the need of the hour in India.

    Consider the question “Discuss the threats posed by the use of surveillance systems by the government. Suggest the measures to deal with these threats.”

    Conclusion

    The only solution to the problem of spyware is immediate and far-reaching surveillance reform.

  • China’s role in stabilising Afghanistan

    Context

    Amid the gloom that has enveloped Afghanistan, one hope for many countries has been China’s potential role in stabilising it.

    Factors that call for China to play role in Afghanistan

    • Scope for India-China cooperation: In the past, even India thought that Afghanistan would be a natural area for India and China to work together.
    • But little came out of the understanding after the Wuhan summit in 2018.
    • Northern neighbours: Afghanistan’s northern neighbours, Turkmenistan, Uzbekistan, and Tajikistan all have expanding political and economic ties with China but have traditionally relied on Russia for their security.
    • They might support a larger role for Beijing in Afghanistan in partnership with Russia.
    • Iran, Kabul’s western neighbour, also has deepening ties with China.
    • Bilateral cooperation with the U.S.: Washington, now locked in an escalating confrontation with Beijing, sees Afghanistan as a potential area of bilateral cooperation. 
    • Role of Pakistan: Beijing is indeed critical in Pakistan’s plans for Afghanistan.
    • Afghan leaders have also been eager to draw China’s BRI into their plans for economic modernisation.
    • China was also important for Kabul’s political calculus in limiting Pakistan’s quest for dominance.

    Two challenges in China playing role in stabilising Afghanistan

    1) Caution in Chinese policy

    • The first relates to the deep sources of caution in Chinese policy.
    • Neither the prospect of mining Afghanistan’s natural resources nor the vanity of being the newest superpower will compel China to rush into the Afghan vacuum.
    • China has deep concerns about Taliban’s ideology and its potential role in fomenting instability in its restive Muslim-majority province, Xinjiang. 
    • Beijing cannot depend on its special relationship with the Pakistan army to ensure the security of China’s frontiers as well as its investments in Afghanistan.
    •  The growing attacks on CPEC projects in Pakistan, underline the difficulty of pursuing economic development amid endemic violence.

    2) Priorities of Taliban

    • The second set of problems relate to the priorities of Taliban.
    • It remains to be seen whether the economic development of Afghanistan is a top priority for the Taliban or not.
    • Also, is it open to let in foreign capital and all the baggage that comes with it?
    • More fundamentally, there is no clarity on the role of economic modernisation in Taliban’s fierce insistence on the creation of an Islamic emirate in Afghanistan.

    Conclusion

    It is against this backdrop that the chances of China playing a major role in stabilising Afghanistan remain slim.

  • Issue of undertrials

    Context

    After the death of Stan Swamy, questions about the conditions of jails and treatment of the incarcerated have been raised anew.

    Issue of deaths of prisoners

    • The NCRB data reports the death of over 1,800 prisoners in the year 2018. An estimated 70 percent of prison inmates are undertrials.
    • Despite constitutional provisions like Article 21, which says, no person shall be denied life or liberty except by the due process of law, the number of undertrials is increasing.

    How prisoners are subjected to additional torture

    • Overcrowding, delayed medical attention, unhygienic conditions and malnutrition exist in all Indian prisons.
    • It is the responsibility of the State and the judiciary to ensure that they are only deprived of their liberty and are not exposed to any additional torture in the form of medical deprivation, unhygienic conditions, bad or inadequate food, etc.
    • Yet, thousands are dying every year and the prison authorities are not made accountable.

    Way forward

    • Acts of extreme neglect that could result in the death of inmates should be acknowledged as extrajudicial torture and made an offense.
    • The SC in Sunil Batra (I) v. Delhi Administration (1978), held that “the humane thread of jail jurisprudence that runs right through is that no prison authority enjoys amnesty for unconstitutionality”.
    • ARC Recommendations on Prison Reforms: The Union and State Governments should work out, fund and implement at the
      earliest, modernization and reforms of the Prison System as recommended by the All India Committee on Jail Reforms (1980-83).
      b. The attendant legislative measures should also be expedited.
      c. Rules regarding Parole and Remission need to be reviewed.
    • Infrastructure: Prisoner Information System, Biometric Identification, facilities for pregnant women, up-gradation of hospitals, etc is needed.
    • Strengthening the Open Prison System.

    Conclusion

    The government needs to take urgent measures to address the issue of additional torture in various forms and the death of prisoners.

  • Lokpal

    More than two years after the Lokpal came into being, the Centre is yet to appoint a director of inquiry for conducting a preliminary inquiry into graft complaints sent by the anti-corruption ombudsman.

    Who is ‘Director of Inquiry’?

    • According to the Lokpal and Lokayuktas Act, 2013, there shall be a director of inquiry, not below the rank of Joint Secretary to the GoI.
    • He/ She shall be appointed by the Central government for conducting preliminary inquiries referred to the Central Vigilance Commission (CVC) by the Lokpal.

    About the Lokpal

    • The Lokpal, the apex body to inquire and investigate graft complaints against public functionaries, came into being with the appointment of its chairperson and members in March 2019.
    • In March 2019, former SC judge Justice Pinaki Chandra Ghose was selected as the first head of the Lokpal.

    Lokpal and Lokayuktas Act, 2013

    • The Lokpal Act 2013 is anti-corruption legislation that seeks to provide for the establishment of the institution of Lokpal.
    • It seeks to inquire into allegations of corruption against certain important public functionaries including the PM, cabinet ministers, MPs, Group A officials of the Central Government etc.
    • The Bill was introduced in the parliament following massive public protests led by anti-corruption crusader Anna Hazare and his associates.
    • The Bill is one of the most widely discussed and debated Bills in India in recent times.

    Its history

    • The term Lokpal was coined in 1963 by Laxmi Mall Singhvi, a member of parliament during a parliamentary debate about grievance mechanisms.
    • The Administrative Reforms Commission (ARC) headed by Morarji Desai submitted an interim report on “Problems of Redressal of Citizen’s Grievances” in 1966.
    • In this report, ARC recommended the creation of two special authorities designated as ‘Lokpal’ and ‘Lokayukta’ for redress of citizens’ grievances.
    • Maharashtra was the first state to introduce Lokayukta through The Maharashtra Lokayukta and Upa-Lokayuktas Act in 1971.

    Also read:

    https://www.civilsdaily.com/news/explained-how-lokpal-will-form-function/

  • Need for social security to migrant and informal workers

    Context

    The migrants’ crisis after the two covid waves compelled policy-makers to make certain provisions for them in the schemes announced for the assistance of the poor.

    Supreme Court judgement on the issue

    • On June 29, the Supreme Court finally delivered its judgment on the plight of migrant labour.
    • The judgement was notable for two main reasons.
    • First, it recognised that there was the large-scale exclusion of migrant workers and other informal workers from existing schemes due to the lack of their registration and outdated eligibility lists.
    • It noted that no benefits will be denied to migrant workers for want of an Aadhaar card and that food assistance will be provided for migrants who were not covered by the National Food Security Act.
    • Second, it connected informal workers and migrant workers, both of whom experience exclusion, and mandated that the portal for registration of all informal/migrant workers should be fully operational before July 31.

    Advantages of providing social protection

    • Investment in social protection is not charity, it is an investment in workers’ productivity and in equitable growth.
    • Providing social protection is, as the UN mooted in 2009 when it spelt out the social protection floor (SPF) initiative after the global financial crisis, the surest way out of a crisis by boosting demand at the bottom of the pyramid.
    • The report of the Advisory Committee of the ILO, in which India was represented by its labour secretary, provides a strong rationale for instituting a universal SPF during economic crises.
    • As a result, all constituents of the ILO adopted Recommendation 202 on social protection floors at the International Labour Conference in 2012.

    Inadequate provisions by government

    • The Unorganised Workers’ Social Security Act, was approved by Parliament in December 2008.
    • But it lacks the mandatory elements of the NCEUS’s proposals and included neither a National Minimum Social Security Package, nor the provision for mandatory registration.
    • Estimates show that the central government’s expenditure on all major social protection programmes declined from 1.96 per cent of GDP in 2008-09 to 1.6 per cent in 2013-14 and to only 1.28 per cent in 2019-20.

    Way forward

    • The National Commission for Enterprises in the Unorganised Sector (NCEUS) had pointed out that the circular migrant workers were a disadvantaged segment among informal workers.
    • Comprehensive law: The NCEUS had advocated a comprehensive law for the protection of the rights of all informal workers, including migrants, home workers, and domestic workers.
    • Universal registration: NCEUS had also recommended a universal registration mechanism based on self-declaration, with the issuance of a smart social security card, and a National Minimum Social Security Package.
    • Guaranteed social security/social protection: We need the provision of a minimum level of guaranteed social security/social protection for all informal workers and their households within a definite time frame.
    • More public spending: Guaranteed social protection would involve a clear framework and a commitment to greater public resources being spent on social protection as a large class of workers in India do not have an identifiable employer and a contributory social insurance framework will not work for them.
    • Recommendation 202: Government should embrace ILO’s Recommendation 202 and work towards these in a time-bound manner.

    Conclusion

    To end the silent, painful, and enduring crisis for the workers, as well as the crisis for the economy, the government must urgently recognise the right to social security, embedded both in the Indian Constitution and international covenants.

  • Explained: Shreya Singhal case that struck down Section 66A of IT Act

    Six years after it struck down Section 66A of the Information Technology Act, 2000, the Supreme Court earlier this month termed its continued use by law enforcement agencies of various states as “a shocking state of affairs” and sought a response from the Centre.

    What did Section 66A do?

    • Introduced in 2008, the amendment to the IT Act, 2000, gave the government power to arrest and imprison an individual for allegedly “offensive and menacing” online posts, and was passed without discussion in Parliament.
    • Section 66A empowered police to make arrests over what policemen, in terms of their subjective discretion, could construe as “offensive” or “menacing” or for the purposes of causing annoyance, inconvenience, etc.
    • It prescribed the punishment for sending messages through a computer or any other communication device like a mobile phone or a tablet, and a conviction could fetch a maximum of three years in jail.
    • In 2015, the apex court struck down the law in the landmark case Shreya Singhal v. Union of India, calling it “open-ended and unconstitutionally vague”, and thus expanded the contours of free speech to the Internet.

    Why was the law criticized?

    • The problem was with the vagueness about what is “offensive”.
    • The word having a very wide connotation was open to distinctive, varied interpretations.
    • It was seen as subjective, and what might have been innocuous for one person, could lead to a complaint from someone else and, consequently, an arrest arbitrarily.

    So, how did 66A come under the Supreme Court’s scrutiny?

    • The first petition came up in the court following the arrest of two girls in Maharashtra by Thane Police in November 2012 over a Facebook post.
    • The girls had made comments on the shutdown of Mumbai for the funeral of a political leader.
    • The arrests triggered outrage from all quarters over the manner in which the cyber law was used.
    • The petition was filed by Shreya Singhal, then a 21-year-old law student.

    What were the grounds for the challenge?

    • The objective behind the 2008 amendment was to prevent the misuse of information technology, particularly through social media.
    • The petitioners argued that Section 66A came with extremely wide parameters, which allowed whimsical interpretations by law enforcement agencies.
    • Most of the terms used in the section had not been specifically defined under the Act.
    • The law was a potential tool to gag legitimate free speech online and to curtail freedom of speech and expression guaranteed under the Constitution, going far beyond the ambit of “reasonable restrictions” on that freedom.

    What did the Supreme Court decide?

    • In March 2015, a bench of Justices J. Chelameswar and R.F. Nariman ruled in Shreya Singhal v. Union of India declared Section 66A unconstitutional for “being violative of Article 19(1)(a) and not saved under Article 19(2).”
    • Article 19(1)(a) gives people the right to speech and expression whereas 19(2) accords the state the power to impose “reasonable restrictions” on the exercise of this right.
    • The decision was considered a landmark judicial pushback against state encroachment on the freedom of speech and expression.
    • The bench also read down Section 79– now at the centre of the ongoing “intermediary liability” battle between the Centre and micro-blogging platform Twitter– defining key rules for the relationship between governments and commercial internet platforms.
    • Section 79 says that any intermediary shall not be held legally or otherwise liable for any third party information, data, or communication link made available or hosted on its platform.