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GS Paper: GS2

  • What is Recusal of Judges?

    In the last week, two Supreme Court judges have recused themselves from hearing cases relating to West Bengal.

    Can you list down some basic principles of judicial conduct?

    Independence, Impartiality, Integrity, Propriety, Competence and diligence and Equality are some of them as listed under the Bangalore Principles of Judicial Conduct.

    What is the Recusal of Judges?

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

    Rules on Recusals

    • There are no written rules on the recusal of judges from hearing cases listed before them in constitutional courts. It is left to the discretion of a judge.
    • The reasons for recusal are not disclosed in an order of the court. Some judges orally convey to the lawyers involved in the case their reasons for recusal, many do not. Some explain the reasons in their order.
    • The decision rests on the conscience of the judge. At times, parties involved raise apprehensions about a possible conflict of interest.

    Issues with recusal

    • Recusal is also regarded as the abdication of duty. Maintaining institutional civilities are distinct from the fiercely independent role of the judge as an adjudicator.
    • In his separate opinion in the NJAC judgment in 2015, Justice Kurian Joseph highlighted the need for judges to give reasons for recusal as a measure to build transparency.
    • It is the constitutional duty, as reflected in one’s oath, to be transparent and accountable, and hence, a judge is required to indicate reasons for his recusal from a particular case.

  • What is Chicago Convention of 1944?

    A private commercial flight was forced to make an emergency landing in Minsk by a MiG-29 fighter jet of Belarus.  The incident received considerable global attention.

    How justified was Belarus in taking such a decision?

    • The answer lies at the junction of Belarus’s domestic laws as a sovereign country and international laws governing the action that states can legitimately take to deal with threats to security, real or perceived.
    • The issue of the use of military aircraft to neutralize potential threats posed by civilian aircraft acquired a different kind of urgency in the aftermath of terrorist attacks in the US on September 11, 2001.
    • Generally speaking, international law grants sovereignty to nations over their airspace as it does in territorial waters.

    The Chicago Convention of 1944

    • The Convention on International Civil Aviation, better known as the Chicago Convention of 1944, to which Belarus is a signatory state, prohibits any unlawful intervention against a civilian aircraft.
    • At the same time, it has various provisions under Article 9 which permit a sovereign state the right to impose restrictions.
    • This includes enforced landings at a designated airport in its territory, in “exceptional circumstances or during a period of emergency, or in the interest of public safety”.
    • Once a flight has landed, Article 16 provides the host country the right to board/search the aircraft.
    • This is probably the clause that provided cover for the local authorities to board Mr. Morales’s aircraft in Austria in 2013.
    • But the Chicago Convention applies only to civilian aircraft of the contracting parties.

    Other such laws

    • International law might also have to be examined in light of the International Air Services Transit Agreement (IASTA), also concluded in Chicago in 1944.
    • According to this agreement, contracting states grant to one another the freedom of air transit in respect of scheduled international air services, that is, the privilege to fly across territories without landing.
    • Belarus is not a signatory of IASTA.

  • Delimitation in Jammu and Kashmir: how, why

    The Union government’s invitation to 14 key political leaders from Jammu and Kashmir for a meeting with the PM has led to speculation about the possible scheduling of the Assembly elections. However, the delimitation of constituencies is crucial for kick-starting any political process in J&K.

    What is Delimitation and why is it needed?

    • Delimitation is the act of redrawing boundaries of an Assembly or Lok Sabha seat to represent changes in population over time.
    • This exercise is carried out by a Delimitation Commission, whose orders have the force of law and cannot be questioned before any court.
    • The objective is to redraw boundaries (based on the data of the last Census) in a way so that the population of all seats, as far as practicable, be the same throughout the State.
    • Aside from changing the limits of a constituency, the process may result in change in the number of seats in a state.

    Do not forget to answer this PYQ in the comment box:

    Q.With reference to the Delimitation Commission, consider the following statements:

    1. The orders of the Delimitation Commission cannot be challenged in a Court of Law.
    2. When the orders of the Delimitation Commission are laid before the Lok Sabha or State Legislative Assembly, they cannot affect any modifications in the orders.

    Which of the statements given above is/are correct?

    (a) 1 only

    (b) 2 only

    (c) Both 1 and 2

    (d) Neither 1 nor 2

    How often has delimitation been carried out in J&K?

    • Delimitation exercises in J&K in the past have been slightly different from those in the rest of the country because of the region’s special status — which was scrapped by the Centre in August 2019.
    • Until then, the delimitation of Lok Sabha seats in J&K was governed by the Constitution of India, but the delimitation of the state’s Assembly was governed by the J&K Constitution and J&K Representation of the People Act, 1957.
    • Assembly seats in J&K were delimited in 1963, 1973 and 1995.
    • The last exercise was conducted by the Justice (retired) K K Gupta Commission when the state was under President’s Rule and was based on the 1981 census, which formed the basis of the state elections in 1996.
    • There was no census in the state in 1991 and no Delimitation Commission was set up by the state government after the 2001 census as the J&K Assembly passed a law putting a freeze until 2026.

    Why is it in the news again?

    • After the abrogation of J&K’s special status in 2019, the delimitation of Lok Sabha and Assembly seats in the newly-created UT would be as per the provisions of the Indian Constitution.
    • On March 6, 2020, the government set up the Delimitation Commission, headed by retired Supreme Court judge Ranjana Prakash Desai, which was tasked with winding up delimitation in J&K in a year.
    • As per the J&K Reorganization Bill, the number of Assembly seats in J&K would increase from 107 to 114, which is expected to benefit the Jammu region.

    What is the status of this 2020 Delimitation?

    • Although the Commission was tasked to finish delimitation in a year, on March 4 this year, it was granted a year’s extension.
    • This was done at the request of the panel members since it couldn’t make much progress due to the Covid-19-induced shutdown across the country.

  • Significance of recent judgments in UAPA cases

    Recent judgements involving UAPA highlights the issues with certain provisions resulting in long years of undertrial imprisonment.

    Context

    In the past week, three seminal judgments involving the Unlawful Activities (Prevention) Act, 1967 (UAPA) have been delivered. While these judgments are welcome developments, they also remind us that thousands continue to languish under the UAPA regime.

    Issues with the provisions of UAPA

    • Originally enacted in 1967, the UAPA was amended to be modelled as an anti-terror law in 2004 and 2008.
    • The period of detention is increased, enlarging the period of custody prior to which default bail cannot be granted.
    • Regular bail is subject to the satisfaction of the judge that no prima facie case exists.
    • Bail apart, the dilatory trial procedures ensure lengthy periods of pre-trial incarceration for the accused who are presumed guilty of heinous terror crimes.

    NCRB data reveal long years of undertrial imprisonment

    • As per the National Crime Records Bureau (NCRB) data, a total of 4,231 FIRs were filed under various sections of the UAPA between 2016 and 2019.
    •  While the number of acquittals is low,  the real picture emerges in the pendency rates.
    • The pendency rate at the level of police investigation is very high, at an average of 83 per cent.
    • This denotes that chargesheets are filed by the police on an average in about 17 per cent of the total cases taken up for investigation.
    • The rate of pendency at the level of trial is at an average of 95.5 per cent.
    • This indicates that trials are completed every year in less than 5 per cent cases.

    What did the courts say in various judgements?

    • The Supreme Court, in Union of India v K A Najeeb, held that despite restrictions on bail under the UAPA, constitutional courts can still grant bail on the grounds that the fundamental rights of the accused have been violated.
    • In Asif Iqbal Tanha v State of NCT of Delhi, the Delhi High Court took this reasoning a step further, holding that it would not be desirable for courts to wait till the accused’s rights to a speedy trial are entirely vitiated before they are set at liberty.
    • Courts should exercise foresight, and in cases with hundreds of prosecution witnesses where a trial will not see a conclusion for years to come, courts should apply the principles laid down in Najeeb.

    Way forward

    •  Even within the constraints of the UAPA, much can be achieved if a responsive and independent judiciary follows the basic principles of natural justice and due process.
    • But access to the judiciary remains limited for most of the thousands incarcerated under this widely-used law.

    Conclusion

    The governments need to consider the issue of pendency of cases under UAPA and take steps to address the issues by either repealing certain provisions or ensuring speedy trials.

  • What govt proposes to change in film certification

    The Centre has recently released the draft Cinematograph (Amendment) Bill 2021 to the general public for comments.

    Cinematograph (Amendment) Bill 2021

    • The new draft proposes to amend the Cinematograph Act of 1952 with some provisions.
    • It seeks to give the Centre “revisionary powers” and enable it to “re-examine” films already cleared by the Central Board of Film Certification (CBFC).

    A look at what the draft proposes to change:

    (a) Revision of certification

    • This will equip the Centre with revisionary powers on account of violation of Section 5B(1) (principles for guidance in certifying films).
    • The current Act, in Section 6, already equips the Centre to call for records of proceedings in relation to a film’s certification.
    • The Ministry of I&B explained that the proposed revision “means that the Central Government, if the situation so warranted, has the power to reverse the decision of the Board”.
    • Currently, because of a judgment by the Karnataka High Court, which was upheld by the Supreme Court in November 2020, the Centre cannot use its revisionary powers on films that have already been granted a certificate by the CBFC.

    Issues

    • The draft comes shortly after the abolition of the Film Certificate Appellate Tribunal, which was the last point of appeal for filmmakers against the certificate granted to their film.
    • The draft has been criticized by filmmakers and term it a “super censor”.

    (b) Age-based certification

    • The draft proposes to introduce age-based categorisation and classification. Currently, films are certified into three categories — ‘U’ for unrestricted public exhibition; ‘U/A’ that requires parental guidance for children under 12; and ‘A’ for adult films.
    • The new draft proposes to divide the categories into further age-based groups: U/A 7+, U/A 13+ and U/A 16+.
    • This proposed age classification for films echoes the new IT rules for streaming platforms.

    (c) Provision against piracy

    • The Ministry noted that at present, there are no enabling provisions to check film piracy in the Cinematograph Act, 1952.
    • The draft proposes to add Section 6AA that will prohibit unauthorized recording.
    • The proposed section states, no person shall, without the written authorization of the author, be permitted to make an audio-visual recording device.
    • Violation shall be punishable with imprisonment for a term of not less than three months and may extend to three years and with a fine which shall not be less than Rs 3 lakh which may extend to 5 per cent of the audited gross production cost or with both.

    (d) Eternal certificate

    • The draft proposes to certify films for perpetuity.
    • Currently, a certificate issued by the CBFC is valid only for 10 years.

  • Russia-China Relations and its effects on India-Russia Relations

    The article highlights Russia’s increasing inclinations towards China and its implications for India.

    Context

    Russian President Vladimir Putin has recently asserted that both the Indian Prime Minister, Narendra Modi, and the Chinese President, Xi Jinping, are “responsible” enough to solve issues between their countries, while underlining the need to debar any “extra-regional power” to interfere in the process.

    Implications for India-Russia ties

    • By this remark, Russia expects India to give up all efforts to reverse Beijing’s encroachment strategies.
    • The remarks can only be seen as reinforcing China’s claim that the Quadrilateral or Quad is aimed at containing China’s influence in the Indo-Pacific region.
    • Russia’s continued criticism of the Indo-Pacific and the Quad suggests the divergent perspectives of India and Russia on how to deal with China’s rise to global prominence.
    • While India needs Russia’s partnership for its defence needs, India cannot endorse the Russian perspective on the Indo-Pacific and the Quad
    • The Russian attitude toward China’s growing power and influence will be the touchstone of Russia’s relations with India.
    • Russia has rejected the Indo-Pacific construct in favour of the Asia-Pacific on the ground that the first is primarily an American initiative designed to contain both China and Russia.
    • With the rise of populist nationalism amidst the decline of globalisation, the resolution of the Sino-Indian boundary dispute appears a difficult task.

    Background of India’s balancing strategies

    • Following the disintegration of the Union of Soviet Socialist Republics (USSR), India soon realised Russia was much weaker than the erstwhile USSR and incapable of helping India balance potential threats from Beijing. 
    • On the other hand, Russia began to cast Moscow as the leader of a supposed trilateral grouping of Russia-India-China against a U.S.-led unipolar world.
    • Russia became an early proponent of the ‘strategic triangle’ to bring together the three major powers.
    • India’s fear of the unipolar moment too made it easier for India to become part of this initiative.
    • But China’s dismissive attitude toward Indian capabilities, coupled with an emerging China-Pakistan nexus, prevented the success of this trilateral.
    • India, instead, invested its diplomatic energies in rapprochement with the United States.
    • Thus, India decided to get integrated in the economic order it once denounced.
    • Economic liberalisation also allowed India to buy sophisticated weapons from a wider global market that included suppliers such as Israel and France.
    • As the logic of intensive engagement with the West was effectively established, strategic partnership with the U.S. was a logical corollary.
    • India has been searching for other major powers to balance against China as it does not have the sufficient means for hard balancing.
    • India has deepened its ties with Japan and Australia in a way that is close to soft balancing. 
    •  among all of India’s balancing efforts, the stupendous growth in ties with the U.S. has been the greatest source of concern for China which views the India-U.S. rapprochement as containment.

    Way forward for India-Russia ties

    • While other powers such as France, Australia, Japan and Russia will have an impact on the emerging maritime structures of the Indo-Pacific region, it is the triangular dynamic between India, China and the U.S. that is going to be the most consequential.
    • Russia is yet to realise that it will gain immensely from the multilateralism that the Indo-Pacific seeks to promote.
    • Being China’s junior partner only undermines Moscow’s great-power ambitions.
    • Given Russia’s preoccupation with ‘status’ rivalry with the U.S., Russia’s view of India-China relations seems understandable.
    • But there is a danger in permitting it to harden into a permanent attitude as an increasingly pro-Beijing Russia might adopt more aggressive blocking of India’s policy agendas.
    • That is why India is particularly interested in a normalisation of relations between Washington and Moscow.
    • The normalisation of relations between the U.S. and Russia will help India steer ties among the great powers.

    India-China ties

    • Non-alignment, painful memories of colonial subjugation, opposition to great-power hegemony, and strong beliefs in sovereignty and strategic autonomy have been the key influencers in shaping India’s and China’s engagement with each other as well as the western world.
    •  But this has begun to change as Beijing is asserting its hegemony over Asia.
    • In such circumstances, multilateral forums such as the Russia-India-China (RIC) grouping and BRICS (Brazil, Russia, India, China and South Africa) have little practical value for Indian diplomacy.
    • Without China’s reciprocity, options before India are limited.
    • The response cannot be just symbolic or rhetorical. The absence of any material evidence of reciprocity is bound to doom an attempt at Sino-Indian rapprochement.

    Conclusion

    China is undoubtedly the most powerful actor in its neighbourhood but it cannot simply have its way in shaping Asia’s new geopolitics.

  • Centre must make way for states in Covid fight

    The States are better equipped to deal with the health emergencies and the Centre needs to augment them in their efforts. The article deals with this issue.

    Role of the States in health crisis

    • Covid-19 pandemic is a national crisis calling for concerted efforts by both, the Government of India (GoI) and state governments.
    • Health is a state subject, and the states have been pioneering many health programmes on their own, some with support and funding from the GoI, for a very long time.
    • The number of employees in the health wing of the GoI is negligible as compared to that in any state government.
    • The GoI must help them, motivate them to do better and assist them in their task.
    • Also, the GoI must and can play a major role is in vaccination.

    Role of the Central government

    • It must try to augment supplies by encouraging companies to produce more and through imports/gifts.
    •  However, whatever it procures must be allotted to states in proportion to their eligible population.
    • State governments must be involved in this policy.
    • The vaccination policy may be left to the state governments based on the allocation. 
    • The GoI must also augment supplies of critical medical goods through imports and donations from friendly nations in view of their acute shortage.
    • It must distribute them to the needy states transparently and equitably.

    Steps that need to be taken

    • Lockdowns need to be lifted in a calibrated manner depending on local conditions.
    • Lockdowns are not the solution, they just buy breathing time which can be used by governments to ramp up capacity.
    • State governments must set up efficient and well-functioning control rooms and telemedicine centres to guide people on home treatment and timely admission to hospitals.
    • The private sector can also be fully involved in these efforts.
    • Bed capacity must be increased in both private and public sectors, with all necessary requirements such as oxygen, medicines, and health workers.
    • It is also important to put in place a standard guidance protocol for health workers and control rooms to guide patients through the disease.
    •  Enforcement of masks and distancing in public places must go on till the country is fully vaccinated.
    • The measures suggested above require hard work and efficient management by state governments, by a team of reputed professionals and civil servants.
    • Daily briefing by a professional, not a politician, is the need of the hour at both the Centre and state level, giving some confidence and assurance to the public.

    Consider the question “In dealing with the health crisis the Union Government and the State governments are better placed for certain roles.  In light of this, examine the important role of the States in dealing with the Covid pandemic and how the Union government can complement it.”

    Conclusion

    The central government must realise that states are on the forefront in this war, and therefore, play a supporting and proactive role. It has only a minor, behind-the-scenes role in the health sector.

  • NATO and China

    In a communiqué issued following the June 14 summit of its member-states in Brussels, the North Atlantic Treaty Organization (NATO), for the first time, explicitly described China as a security risk.

    Try answering this question:

    Q.NATO has been an ideal vehicle for power-projection around the world by the US. Critically comment.

    China as a global threat

    • China has never figured in NATO summit declarations before, except for a minor reference in 2019 to the “opportunities and challenges” it presented.
    • But China’s stated ambitions and assertive behaviour present systemic challenges to the rules-based international order and to areas relevant to NATO security.
    • China has reacted sharply. It has urged NATO to view China’s development rationally, stop exaggerating various forms of China threat theory.
    • The other two threats identified by the NATO communiqué are on predictable lines: Russia and terrorism.

    Focus over two nations

    • There is a significant difference, however, between a strategic focus on countering Russia and casting China as a “systemic challenge”.
    • This goes back to NATO’s founding mandate and subsequent history.

    What is NATO, btw?

    • NATO, the planet’s largest — and largest-ever — military alliance, was formed in 1949 by 12 Allied powers to counter the massive Soviet armies stationed in Eastern and Central Europe after Second World War.
    • According to Paul-Henri Spaak, the second Secretary-General of NATO, it was, ironically enough, Joseph Stalin who is the true father of NATO.
    • It was Stalin’s overreach — especially with the Berlin blockade of 1948-49 and the orchestrated coup in Czechoslovakia in 1948 — that convinced a diverse set of war-ravaged European nations to come together under an American security blanket.
    • The collective defence principle enshrined in NATO’s Article V states that “an attack against one ally is considered as an attack against all allies”.
    • The formation of NATO, and its Soviet counterpart, the Warsaw Pact, in 1955, inaugurated the Cold War era.

    NATO and its relevance now

    • NATO was completely successful in its mission of protecting the “Euro-Atlantic area” from Soviet expansion and preventing war between the two superpowers.
    • When the Soviet Union collapsed in 1991, questions were raised about NATO’s relevance and future.
    • Since the Non-aligned Movement (NAM) became irrelevant when the Communist bloc disappeared, one cannot justify the continuation of a military alliance formed to protect Europe from Communist expansion.

    Post-Cold War era mandate of NATO

    • Its bureaucracy succeeded in refashioning NATO for the post-Cold war era.
    • The refashioning rested on a paradigm shift — from collective defence, which implied a known adversary, to collective security, which is open-ended, and might require action against any number of threats.
    • The threat included unknown ones and non-state actors.
    • In other words, the elimination of one threat to Europe — communist Russia — did not necessarily mean that security risks to Europe have vanished.

    Why dismantle a beneficial arrangement

    • Another factor in the persistence of NATO is that, like all successful alliances, it has been a mutually beneficial arrangement.
    • For Europe, it was an attractive bargain where, in exchange for a marginal loss in autonomy, it enjoyed absolute security at a cheap price.
    • Not having to spend massively on defence allowed Europe to focus on building powerful economies and invest its surplus in a strong welfare state.
    • NATO also offered the added bonus of keeping Germany down — historically a major factor for peace and stability in the region.

    An effective American weapon

    • For the US, NATO has been an ideal vehicle for power projection around the world — in places beyond the Euro-Atlantic area, such as Iraq, Afghanistan and Libya.
    • It views NATO as a tool to ensure the primacy of American interests across the globe.
    • Unsurprisingly, NATO’s post-Cold War role has evolved in tandem with U.S. foreign policy priorities.
    • The NATO doctrine of “enlargement”, which Russia calls “expansion”, is essentially about extending the American military footprint by bringing in new members.
    • That is how NATO’s membership today stands at 30, having added 14 members between 1999 and 2020.

    The final truth

    • The Biden administration wants to mobilize NATO member-states behind its larger objective of containing China.
    • NATO’s European member states may view China as an economic rival and adversary, but they are unconvinced by the American line that it is an outright security threat.
    • This line also, in a way, points to the underlying logic behind NATO’s persistence in the post-Soviet world.
    • Unlike the Soviet Union, China offers no alternative vision of society that could make Western capitalism insecure.
    • In fact, its own economy is already deeply integrated into Western markets. China, nonetheless, is perceived as posing a ‘threat’.
    • It remains to be seen how far an ageing Europe would be willing to commit itself to a strategic path that prefers confrontation to collaboration like the US.

    Also read:

    India & NATO

  • Section 27A of the NDPS Act

    Last week, the Tripura High Court, in a significant verdict, discovered an oversight in drafting the 2014 amendments to the Narcotics Drugs and Psychotropic Substances Act, 1985.

    What is Section 27A?

    • The NDPS had unintentionally rendered a key provision of the Act, Section 27A which provides for punishment of those financing illicit trafficking, inoperable.
    • This section has been consistently evoked since a year after the alleged suicide of a notable Bollywood actor after drugs intoxication.

    What is the provision?

    • The NDPS Act, 1985 is the principal legislation through which the state regulates the operations of narcotic drugs and psychotropic substances.
    • It provides a stringent framework for punishing offenses related to illicit traffic in narcotic drugs and psychotropic substances through imprisonments and forfeiture of property.
    • Section 27A of the NDPS Act, 1985, prescribes the punishment for financing illicit traffic and harboring offenders.
    • The court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.”

    So why is this provision inoperable?

    • The text of the provision says that offences mentioned under Section 2(viiia) sub-clauses i-v are punishable through Section 27A.
    • However, Section 2 (viiia) sub-clauses i-v, which is supposed to be the catalog of offences, does not exist after the 2014 amendment.
    • So, if Section 27A penalises a blank list or a non-existent provision, it can be argued that it is virtually inoperable.

    What was the 2014 amendment?

    • In 2014, a key amendment was made to the NDPS Act to allow for better medical access to narcotic drugs.
    • Since the regulation under NDPS was very stringent, despite being a leading manufacturer of morphine, an opioid analgesic used as a painkiller, it was difficult to access the drug even for hospitals.

    Exceptions for essential drugs

    • The 2014 amendment essentially removed state-barriers in transporting, licensing drugs classified as “essential narcotic drugs”, and made it centralized.
    • This was done by first introducing a provision in Section 2 that defines essential narcotic drugs, and subsequently in Section 9 allowing the manufacture, possession, transport, import inter-State, export inter-State, sale, purchase, consumption and use of essential narcotic drugs.
    • The amendment to add the definition of essential narcotic drugs re-lettered the old Section 2(viii)a that was the catalog of offences as Section 2(viii)b, and under the Section 2(viii)a, defined essential narcotic drugs.
    • However, the drafters missed amending the enabling provision in Section 27A to change Section 2(viii)a to Section 2(viii)b.

    How was this error noticed?

    • In 2016, an accused sought bail before a special judge in West Tripura in Agartala citing this omission in drafting.
    • The accused’s plea was that since Section 27A penalized a blank list, he could not be charged under the offence.
    • The district judge then referred the case to the Tripura High Court.

    What did the HC decide?

    • The Law Ministry had argued that the court must overlook the omission and read the legislation as a whole. It also told the court that the provision would be amended to rectify the dissonance.
    • The Tripura HC agreed with the government’s view, but said that it may not be the best solution.
    • The amendment is yet to take place. However, criminal laws cannot be amended retrospectively.
    • Article 20 of the Constitution guarantees protection against double jeopardy.
    • So even if the amendment is brought in, the result of the drafting error could lead to more constitutional questions being raised.

    Back2Basics: Article 20 of the Indian Constitution

    The Article 20 is one of the pillars of fundamental rights guaranteed by the Constitution of India. It mainly deals with protection of certain rights in case of conviction for offences.

    (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

    (2) No person shall be prosecuted and punished for the same offence more than once.

    (3) No person accused of any offense shall be compelled to be a witness against himself.

  • How poll results are challenged, and when courts have set them aside

    West Bengal CM has filed an election petition in the Calcutta High Court challenging the Assembly election result of Nandigram constituency, where she had contested and lost.

    What is an election petition?

    • The Election Commission’s role ends with the declaration of results, that is once the Returning Officer has signed the final result sheet (Form 20).
    • After that, an election petition is the only legal remedy available to a voter or a candidate who believes there has been malpractice in an election.
    • Such a person can challenge the result through an election petition submitted to the High Court of the state in which the constituency is located.
    • Such a petition has to be filed within 45 days from the date of the poll results; nothing is entertained by courts after that.
    • Although the Representative of the People Act of 1951 suggests that the High Court should try to conclude the trial within six months, it usually drags on for much longer, even years.

    On what grounds can an election petition be filed?

    Under Section 100 of the RP Act, an election petition can be filed on the grounds that:

    • On the day of the election, the winning candidate was not qualified to contest.
    • The winning candidate, his poll agent or any other person with the consent of the winning candidate has indulged in a corrupt practice. Section 123 of the RP Act has a detailed list of what amounts to corrupt practice, including bribery, use of force or coercion, appeal to vote or refrain from voting on grounds of religion, race, community, and language.
    • Improper acceptance of the nomination of the winning candidate or improper rejection of a nomination.
    • Malpractice in the counting process, which includes improper reception, refusal or rejection of any vote, or the reception of any vote which is void.
    • Non-compliance with the provisions of the Constitution or the RP Act or any rules or orders made under the RP Act.

    What happens if the court finds that a contention of malpractice is correct?

    • This depends on relief that is claimed by the petitioner in her election petition.
    • Under Section 84 of the RP Act, the petitioner may ask that the results of all or the winning candidates may be declared void.
    • In addition to that, the petitioner may also ask the court to declare her (in case the petition is filed by a candidate) or any other candidate as the winner or duly elected.
    • So the verdict on an election petition, if found in favour of the petitioner, may result in a fresh election or the court announcing a new winner.

    Have there been any election results that were declared void because of an election petition?

    • There are many examples, the most famous being the Allahabad High Court verdict of 1975 which set aside Indira Gandhi’s election from Rae Bareli constituency, four years earlier, on grounds of corrupt practice.
    • The election petition was filed by her nearest rival Raj Narain who had lost by over one lakh votes.
    • The High Court found that Indira Gandhi’s election agent Yashpal Kapur, the DM of Rae Bareli, the Superintendent of Police of Rae Bareli and the Home Secretary of UP government helped in the arrangements for her election tour.
    • This amounted to a corrupt practice under Section 123 (7) of the RP Act.