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GS Paper: GS2

  • Explained: What is Mandamus?

    • The Supreme Court has ruled that reservation in the matter of promotions in public posts is not a fundamental right, and a state cannot be compelled to offer the quota if it chooses not to.
    • It ruled that there  is no fundamental right which inheres in an individual to claim reservation in promotions.
    • Hence no mandamus can be issued by the court directing state governments to provide reservations,” the bench of Justices L Nageswara Rao and Hemant Gupta said.

    What is ‘Mandamus’?

    • Mandamus is among the “prerogative writs” in English common law — meaning the extraordinary writs or orders granted by the Sovereign when ordinary legal remedies are inadequate.
    • These are habeas corpus, mandamus, prohibition, certiorari, and quo warranto.
    • In India, the Supreme Court can issue prerogative writs under Article 32 of the Constitution, and the High Courts under Article 226.
    • Mandamus literally means ‘we command’. When issued to a person or body, the writ of mandamus demands some activity on their part.
    • It orders the person or body to perform a public or quasi-public duty, which they have refused to perform, and where no other adequate legal remedy exists to enforce the performance of that duty.

    When is it used?

    • The writ cannot be issued unless the legal duty is of public nature, and to whose performance the applicant of the writ has a legal right.
    • The remedy is of a discretionary nature — a court can refuse to grant it when an alternative remedy exists.
    • However, for enforcing fundamental rights, the alternative remedy argument does not hold as much weight, since it is the duty of the Supreme Court and the High Courts to enforce fundamental rights.
    • When a public officer or government does an act that violates the fundamental right of a person, the court would issue a writ of mandamus against such authorities so that the person’s rights are not infringed.
    • The writ can also be issued against inferior courts or other judicial bodies when they have refused to exercise their jurisdiction and perform their duty.

    Limitations

    • Under Article 361, mandamus cannot be granted against the President or Governor of a State, “for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties”.
    • The writ also cannot be issued against a private individual or body, except where the State is in collusion with the private party for contravening a provision of the Constitution or a statute.

  • Indian nationals living abroad

    There are over 1.36 crore Indian nationals living abroad, according to data tabled by the Ministry of External Affairs in Lok Sabha.

    Indians abroad

    • The highest number of Indians abroad are living in the United Arab Emirates, where the 34,20,000 Indians comprise about one-fourth of all Indians abroad.
    • The UAE is followed by Saudi Arabia (25,94,947), the US (12,80,000), Kuwait (10,29,861), Oman (7,79,351), Qatar (7,56,062), Nepal (5,00,000), UK (3,51,000), Singapore (3,50,000) and Bahrain (3,23,292).
    • The CPV (Consular, Passport and Visa) division of the ministry is the nodal division that coordinates with all missions / posts abroad regarding transportation of the mortal remains of Indians from abroad to their hometowns in India.

    Total remittances recieved

    • Citing RBI data, the ministry said that during 2018-2019, $76.4 billion was received as remittances from Indians abroad.
    • During 2019-2020 (April-September), $41.9 billion was received.

  • A weak rebuke: It’s unfortunate EC didn’t punish hate speech in Delhi campaign

    Context

    Campaign for the Delhi Assembly election in which the development debate was overshadowed by hate-mongering and outpouring of communal vitriol underscores need to do more.

    Understanding the Model Code of Conduct (MCC)

    • Behavioural guidelines: It is a set of behavioural guidelines for political parties and candidates for-
      • The peaceful conduct of elections.
      • To prevent hate speech.
      • Malpractices.
      • Corruption and
      • Misuse of government machinery by the ruling party.
    • Not judicially enforceable: Since it is not an Act passed by Parliament, the Code is not judicially enforceable.
      • The action against a violator usually takes the form of an advice, warning or censure.
      • No punitive action can be taken.
      • No wonder, many consider the Code as toothless.
    • Moral authority: It is not toothless though. Its moral authority far outweighs its legal sanctity.
      • Political leaders worth their salt are scared of inviting a notice for a violation, as it creates negative public opinion.
      • Besides, unlike the legal processes, its impact is instant.

    The legality of the MCC

    • Test of legality in the courts: The legality of the code has been judicially tested.
      • First legal acceptance: Its first judicial acceptance came in 1997 when the Punjab and Haryana High Court gave the EC the power to enforce the code.
      • “Such a code of conduct when it is seen that it does not violate any of the statutory provisions can certainly be adopted by the Election Commission for the conduct of free and fair election, which should be pure as well,” the Court said.
      • The SC has repeatedly held that this must be enforced strictly.

    Parallels between the MCC and other legal provision

    • The first section of the MCC lays down that-Part 1 (1) “ No party or candidate shall include in any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic.”
    • “
Criticism of other parties or their workers based on unverified allegations or distortion shall be avoided.”
    • Parallels with RPA: The Representation of the People Act (1951) categorically defines the above two as corrupt practices in Section 123 (3A) and Section 123 (4) respectively.
      • Section 125 of RPA provides for punishment for similar violations.
    • Parallels with IPC: It is important to note that Section 153A of the Indian Penal Code has a similar provision:
      • Promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.

     Refreshing change

    • Prompt action: It must be appreciated that the EC was prompt in its action against the leaders accused of hate speech in Delhi election campaign.
      • While it instantly, suo moto, deprived the two leaders of their star campaigner status, it also punished them with a gag order, using the ultimate weapon provided by Article 324.
      • The EC flexing its muscle outside the so-called “toothless” MCC and invoking Article 324 is indeed a refreshing change.
      • In earlier instances, it often had to let the culprits go with a mere “warning, caution or censure”.
      • In its notice to a leader, the EC cited Sections 123 and 125 of the RP Act.

    Conclusion

    • Historically, the EC has always taken simultaneous action under the Model Code of Conduct and the other two provisions. While the MCC produces instant results, the penal provisions involve endless judicial processes. Not taking action under the IPC encouraged violators to commit repeat offences.

     

  • Explained: Regulation of Parliamentary Speech and Conduct

     

    Two days of heated exchanges in Parliament have brought back recurring questions around “unparliamentarily” speech and conduct.

    No absolute privilege

    • Article 105(2) of the Constitution lays down that “no Member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof”.
    • However MPs do not enjoy the freedom to say whatever they want inside the House.

    Checks on MPs’ speech

    • Whatever an MP says is subject to the discipline of the Rules of Parliament, the “good sense” of Members, and the control of proceedings by the Speaker.
    • These checks ensure that MPs cannot use “defamatory or indecent or undignified or unparliamentary words” inside the House.
    • Rule 380 (“Expunction”) of the Rules of Procedure and Conduct of Business in Lok Sabha regulates the speech of MPs.
    • It says: “If the Speaker is of opinion that words have been used in debate which are defamatory or indecent or unparliamentary or undignified, the Speaker may, while exercising discretion order that such words be expunged from the proceedings of the House.”
    • Rule 381 says: “The portion of the proceedings of the House so expunged shall be marked by asterisks and an explanatory footnote shall be inserted in the proceedings as follows: ‘Expunged as ordered by the Chair’.”

    What are Unparliamentary expressions?

    • There are phrases and words, literally in thousands, both in English and in other Indian languages that are “unparliamentary”.
    • The Presiding Officers — Speaker of Lok Sabha and Chairperson of Rajya Sabha — have the job of keeping these bad words out of Parliament’s records.
    • For their reference and help, the Lok Sabha Secretariat has brought out a bulky tome titled ‘Unparliamentary Expressions’, the 2004 edition of which ran into 900 pages.
    • The list contains several words and expressions that would probably be considered rude or offensive in most cultures; however, it also has stuff that is likely to be thought of as being fairly harmless or innocuous.
    • The state legislatures too are guided mainly by the same book, which also draws heavily from unparliamentarily words and phrases used in the Vidhan Sabhas and Vidhan Parishads of India.

    Examples of unparliamentary

    • Among the words and phrases that have been deemed unparliamentary are “scumbag”, “shit”, “badmashi”, “bad” (as in “An MP is a bad man”), and “bandicoot”, which is unparliamentary if an MP uses it for another, but which is fine if he uses it for himself.
    • If the Presiding Officer is a “lady”, no MP can address her as “beloved Chairperson”.
    • The government or another MP cannot be accused of “bluffing”. “Bribe”, “blackmail”, “bribery”, “thief”, “thieves”, “dacoits”, “bucket of shit”, “damn”, “deceive”, “degrade”, and “darling”, are all unparliamentary.
    • MPs or Presiding Officers can’t be accused of being “double minded”, having “double standards”, being of “doubtful honesty”, being “downtrodden”, indulging in “double talk”, being “lazy”, “lousy”, a “nuisance” or a “loudmouth”.
    • No Member or Minister can be accused of having “deliberately concealed”, “concocted”, of being of a “confused mind”, or being “confused and unintelligent”.
    • An illiterate MP can’t be called “angootha chhaap”, and it is unparliamentary to suggest that a member should be sent to the “ajayabghar” (museum).

  • Keeping the southern neighbour engaged

    Context

    During Mahinda Rajapaksa’s India visit, New Delhi is likely to talk to Colombo on the Tamil issue and counterbalance Beijing’s influence in the Indian Ocean.

    Background of the current politics in Sri Lanka

    • Sri Lankan Prime Minister official visit to India is taking place a few months after he assumed office and his brother was sworn in as president
    • Nationalist wave after attacks: The brothers were voted to the office on a Sinhala nationalist wave, a sentiment that is a fallout of the Easter attacks on Christian shrines, including the Saint Anthony’s shrine, in April last year.
      • The attacks had killed more than 250 people, six months before the elections.
      • The polarisation worked in favour of the Rajapaksas vis-Ă -vis Sri Lanka’s 10 per cent Muslim population, mostly Tamils, who are especially numerous on the country’s east coast.

    Tamil issue in Sri Lanka

    • No engagement with Hindu Tamil: While Muslims have become the number one scapegoat for the Easter tragedy, the Rajapaksas have not tried to engage the Hindu Tamils
    • LTTE background: Hindu Tamils, who make about 11 per cent of Sri Lanka’s population, have had an acrimonious relationship with Mahinda Rajapaksa ever since he wiped out the LTTE in 2009.
      • Many members of the community became collateral victims in the process.
    • Implications for India-Sri Lanka relations: Gotabaya was the defence secretary at that time. The Hindu Tamil factor may complicate India-Sri Lanka relations.
    • No inclusion minorities from Sri Lanka in CAA: In the Citizenship Amendment Act the Indian Parliament passed in 2019, the persecuted minorities of Sri Lanka are not taken into account.
      • However, the Hindu Tamils of Sri Lanka are feeling insecure again.

    China-Sri Lanka axis

    • The China factor is likely to aggravate the complication: The Rajapaksas are known to be pro-Sri Lanka. Mahinda Rajapaksa was largely responsible for opening Sri Lanka to massive — and strategic -Chinese investments.
    • The Hambantota port issue: The Hambantota Port and 15,000 acres have been conceded to China on a 99-year lease, causing considerable consternation in New Delhi, which apprehends that this deep seaport could be used for military purposes, and not just trade.
      • The deal was put on a hold by former PM but the present dispensation wants it to be restored.
    • China’s growing clout in the Indian Ocean: India’s efforts were also designed to thwart China extending its influence in Sri Lanka at a time when the Narendra Modi administration is trying to counter Beijing’s clout in the Indian Ocean.
    • Modi’s visited on May 30, 2019, just after beginning his second tenure as PM.

    Past engagement events

    • New Delhi has tried to engage the new Sri Lankan government after the Rajapaksas assumed office.
      • India’s foreign minister S Jaishankar, landed in Sri Lanka on November 20, 2019, to invite Gotabaya for his first visit to India — rather than to China.
    • Gotabaya visited New Delhi for three days in late November last year.
    • Tamil issue discussed: Jaishankar is said to have told Gotabaya that India expects his government to treat Tamils with dignity in the process of reconciliation.
      • There is speculation that India might appoint an ambassador of Tamil origin to Colombo.
    • Cooperation against terrorism: The Indian PM went further when Gotabaya Rajapaksa visited New Delhi: He announced a $50 million line of credit for security and counter-terrorism
    • Line of credit for Infra: India also announced another $400 million for development and infrastructure projects in Sri Lanka.
      • That the counter-terror fund would further strengthen cooperation against terrorism.
    • Allaying the fears over China: Gotabaya allayed India’s fears on China by saying that Sri Lanka would not allow a third country to affect Sri Lanka-India ties.

    Conclusion

    While addressing the issue of minority and growing Chinese influence in Sri Lanka both countries need to focus on the other areas of cooperation like counter-terrorism, trade, security, development, technology etc.

  • “Vivad se Vishwas” Scheme

    The government has introduced The Direct Tax Vivad se Vishwas Bill, 2020.

    Direct Tax Vivad se Vishwas Bill

    • In essence, the Bill is aimed at resolving direct tax-related disputes in a speedy manner.
    • In the last budget, Sabka Vishwas Scheme was brought in to reduce litigation in indirect taxes. It resulted in settling over 1,89,000 cases.
    • The Vivad se Vishwas Scheme is to do for direct tax-related disputes exactly what Sabka Vishwas did for indirect tax-related disputes.

    Why need such a scheme?

    • At present, there are as many as 4,83,000 direct tax cases pending in various appellate forums i.e. Commissioner (Appeals), ITAT, High Court and Supreme Court.
    • The idea behind the scheme is to reduce litigation in the direct tax arena.

    What are the specifics of the scheme?

    • A taxpayer would be required to pay only the amount of the disputed taxes and will get a complete waiver of interest and penalty provided he pays by 31st March 2020.
    • Those who avail this scheme after 31st March 2020 will have to pay some additional amount.
    • However, the scheme will remain open only till June 30, 2020. The scheme also applies to all case appeals that are pending at any level.

    How much money is at stake?

    • According to reports, over Rs 9 lakh crore worth of direct tax disputes are pending in the courts.
    • The government hopes to recover a big chunk of this in a swift and simple way, while offering the taxpayers the relief of not having to fight the case endlessly.
    • For a government that is staring at a big shortfall in revenues, especially tax revenues, the scheme makes a lot of sense.

    What was the response to the Sabka Vishwas scheme?

    • At last count, the government expected to have raised Rs 39,500 crore from the Sabka Vishwas scheme, which was only about indirect tax disputes.
    • The amnesty window for Sabka Vishwas closed on January 15 and close to 1.90 lakh crore applications, in relation to taxes worth Rs 90,000 crore was received.
    • One of the standout successes of this scheme was Mondelez India Foods Pvt Ltd (which was earlier known as Cadbury India) settled one of its most controversial tax disputes.
    • The firm was accused of evading taxes to the tune of Rs 580 crore (excluding taxes and penalties). In the end, Mondelez paid Rs 439 crore on January 20 under the amnesty scheme.

    Criticisms of the Bill

    • The bill led to an uproar in Parliament.
    • The opposition criticised the Bill first for the use of Hindi words in its name, arguing that this was government’s way to impose Hindi on the non-Hindi speakers.
    • They also argued that the Bill treats honest and dishonest people equally.

  • [pib] National Means-cum-Merit Scholarship Scheme (NMMSS)

     

    The NMMSS has helped to reduce the drop-out rate at the secondary and senior secondary classes, informed Union HRD Minister.

    National Means-cum-Merit Scholarship Scheme

    • The Centrally Sponsored Scheme NMMSS was launched in May, 2008.
    • The objective of the scheme is to award scholarships to meritorious students of economically weaker sections to arrest their drop out at class VIII and encourage them to continue the study at secondary stage.
    • Under the Scheme one lakh fresh scholarships @ of Rs.12000/- per annum per student are awarded to selected students of class IX every year and their continuation/renewal  in classes X to XII for study in a State Government, Government-aided and Local body schools.
    • The selection of students for award of scholarships under the scheme is made through an examination conducted by the States/UTs Governments.

    Progress of the scheme

    • As on date approx 16.93 lakh scholarships have been sanctioned to the Students across the country.
    • Heads of all the institutions disclosed that the NMMS Scheme has reduced the drop-out rate at the secondary and senior secondary classes, particularly from Classes VIII to XII.

  • [pib] Lucknow Declaration

    The first India-Africa Defence Ministers’ Conclave held in Lucknow has adopted the Lucknow Declaration.

    India-Africa Framework for Strategic Cooperation

    The declaration:

    • Acknowledges contribution of Indian defence forces in humanitarian assistance and disaster relief operations in Africa.
    • It appreciates initiation of Africa India Field Training Exercises with the first ever AFINDEX in March 2019 and agree that it will further strengthen cooperation in defence preparedness and security.
    • The vision is to achieve ‘a conflict-free Africa, prevent genocide, make peace a reality for all and rid the continent of wars, violent conflicts, human rights violations, and humanitarian disasters.
    • It call for deeper cooperation in the domain of defence industry including through investment, joint ventures in defence equipment software, digital defence, research & development etc.
    • It recognizes the common security challenges such as terrorism and extremism, piracy, organised crime including human trafficking, drug trafficking, weapon smuggling and others.
    • The members endorsed initiatives such as African Peace and Security Architecture (APSA), Silence The Guns in Africa and Agenda 2063.
    • It calls for strengthening the UN Counter-Terrorism mechanisms and to ensure strict compliance with the UN Security Council sanctions regime on terrorism.
    • It urged the international community to envisage the adoption of Comprehensive Convention on International Terrorism in the UNGA.
    • The members recognized the importance of the oceans and seas to the livelihoods of our peoples and that Maritime security is a pre-requisite for the development of Blue or Ocean economy.
    • It sought to increase cooperation in securing sea lines of communication, preventing maritime crimes, disaster, piracy, illegal, unregulated and unreported fishing through sharing of information and surveillance.

  • [pib] National Judicial Pay Commission

    The Second National Judicial Pay Commission has filed its report covering the subject of Pay, Pension and Allowances in the Supreme Court.

    Second National Judicial Pay Commission

    • The Commission is headed by former Supreme Court judge P V Reddy.
    • It was set up on the directions of the apex court in May 2017 during the hearing of the All India Judges Association case.

    Key recommendations

    1) Pay

    • It has recommended the adoption of Pay Matrix which has been drawn up by applying the multiplier of 2.81 to the existing pay, commensurate with the percentage of increase of pay of High Court Judges.
    • The highest pay which a District Judge (STS) will get, is Rs.2,24,100/-.

    2)  Pension

    • Pension at 50% of last drawn pay worked out on the basis of proposed revised pay scales is recommended w. e. f. 1-1-2016. The family pension will be 30% of the last drawn pay.
    • Recommendation has been made to discontinue the New Pension Scheme (NPS) which is being applied to those entering service during or after 2004. The old pension system, which is more beneficial to be revived.

    3) Allowances

    • The existing allowances have been suitably increased and certain new features have been added. However, the CCA is proposed to be discontinued.
    • Certain new allowances viz. children education allowance, home orderly allowance, transport allowance in lieu of pool car facility, has been proposed.

  • [op-ed of the day] Amendments to Medical Termination of Pregnancy Act are a mixed bag

    Context

    The Union Cabinet’s approval of the amended Medical Termination of Pregnancy (MTP) Bill 2020 was reported on January 29. This amendment was long due and has made some anticipated changes demanded by women’s groups and courts, including the Supreme Court.

    Why the amendment was necessitated?

    • Abortion (unsafe) accounts for almost 10 per cent of maternal deaths in India.
    • No provision to avoid unsafe abortion: The amended Act doesn’t have any new substantial provisions to avoid unsafe abortions.
      • The right to safe abortion (at least till 12 weeks, when it is safer) would have made the state responsible to provide safe abortion services.
    • Reduce the burden on judiciary: The proposed amendments will definitely reduce the burden on the judiciary, especially given the plethora of cases seeking permission for abortion beyond the prescribed duration of 20 weeks.
    • Two types of Court cases: The court cases are broadly two types.
      • The first group of cases: These are pregnancies that extend beyond 20 weeks of gestation as a result of rape, incest or of minor women.
      • The new Act rightly addresses these by extending prescribed period abortion to 24 weeks.
      • However, such cases form a minuscule proportion of the total number. For such cases, even the 24-week cap can be done away with, provided the abortions can be safely done.
      • The second group of cases
      • These are of pregnancies that become unwanted after congenital foetal anomalies are found upon testing.
      • With advancements in prenatal foetal screening/diagnostic technologies, more such cases are knocking at the doors of courts.
      • Marginal interval under the current act: Anomalies detected at 17-20 weeks provide only a marginal interval to conduct an abortion under the current Act.
      • The extension to 24 weeks seems to give cover to these cases for abortion services, reducing the burden on courts.

    How the law could be misused?

    • Possibility of using any anomaly as a ground for abortion: The amendments have opened up the possibility for any congenital anomaly to be used as grounds for abortion.
      • Anomalies which are incompatible with life provide grounds for access to abortion at any time during pregnancy -not just 24 weeks of gestation-as long as the woman desires it and it doesn’t endanger her health.
      • But with advancements in diagnostic technologies, more anomalies will be detected, including those which are compatible with life.
    • Social acceptability and anomaly: What constitutes an anomaly changes depending on what is considered socially desirable.
      • Issue of raising children with disability: Technology-aided detection of “undesirability” could now find social support, as has been the case with female foetuses.
      • This raises concerns that raising children with disability, especially in the absence of state support and poor social attitudes, could go down a similar path.

    The risk to the life of women

    • Abortion beyond 12 weeks carries serious health risks.
      • 12 weeks provision under current law: Current law requires the expert opinion of two registered medical practitioners for the abortion beyond 12 weeks.
        • Extending the limit to 20 weeks and risk involved: 12-week requirement has been delayed till 20 weeks, though the physiology of pregnancy and risks associated with procedures for second-trimester abortions haven’t changed significantly.
        • Possibility of more complications: Without the strengthening of public services, easing second-trimester abortions between 12-20 weeks opens the possibilities of more complications and endangers the life of the woman.

    Conclusion

    With congenital anomalies as a ground for abortion, the eugenic mindset of having socially desirable children could push more women into risky late abortions. The approach of medical boards advising courts in cases of late abortions under this Act will be critical to balancing women’s right to choose with risk to the woman and the motives for abortion. The rules framed under the Act must address this in no uncertain terms.