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GS Paper: Parliament & State Legislatures

  • Back in news: Central Vista Project

    The Central Vista Avenue is set to open in the next few days after remaining closed to the public since February 2021 for redevelopment.

    Central Vista Project

    • The project aims to renovate and redevelop 86 acres of land in Lutyens’s Delhi.
    • In this, the landmark structures of the government, including Parliament House, Rashtrapati Bhavan, India Gate, North Block and South Block, etc. stand.
    • This dream project of redeveloping the nation’s administrative heart was announced by the Ministry of Housing and Urban Affairs back in September 13, 2019.

    This project has three main parts:

    1. New parliament building
    2. New secretariat complex to bring all the central govt ministries in one place
    3. Development of the Rajghat and the area around it
    • This project will involve demolition of some non-heritage buildings in the area, and construction of new buildings in place of them.

    Why need this Project?

    The most significant aspect of the project is the construction of a new parliament building.  There are several reasons for needing a new building.

    • Pre Independence building: The current one was built in 1927to house the legislative council and was not intended to house a bicameral legislature that the country has today.
    • Lack of Space: The current building will be under more stress when the number of seats to Lok Sabha and Rajya Sabha are raised. Both Houses are already packed and members have to sit on plastic chairs when joint sessions are held, diminishing the dignity of the House.
    • Safety Concerns: The existing building does not conform to fire safety norms. Water and sewer lines are also haphazard and this is damaging its heritage nature. Security concerns in the wake of the 2001 Parliament attack shows its vulnerable nature. It is also not quake-proof.
    • Cost Advantage: Many central ministries are housed in different buildings with the result that the government ends up paying rent for many of them. The new building, a new central secretariat will help avoid this.
    • Environmental Benefits: The fact that people and officials have to run around the city to go to different ministries also increases traffic and pollution. The project also proposes interlinking of metro stations which will minimise use of vehicles.

    Due to these reasons, a pressing need was felt to construct a new parliament building.

    Significance of the project

    • Modernising parliament’s facilities: The new Parliament building will be India’s first purpose-designed parliament, equipped with state-of-the-art infrastructure to meet all needs of an expanded parliament.
    • Improving productivity and efficiency: All ministries of the government will be consolidated in one place and will be served by highly energy-efficient and sustainable infrastructure.
    • Strengthening cultural and recreational facilities: The National Museum will be relocated and conceptualized to present the rich heritage and achievements of the nation.
    • Providing modern and secure infrastructure: A modern, secure, and appropriately equipped executive enclave is proposed to house executive offices and facilities.
    • Providing residential facilities for the PM: Modern and secure residential facilities for the vice president and the PM are proposed to the north of North Block and south of South Block respectively.
    • Cultural significance: The overall objective of works planned on the Central Vista is to ensure environmental sustainability, restore the vista’s architectural character, protect its heritage buildings, expand and improve public space, and to extend its axis.

    Criticism

    • The Opposition, environmentalists, architects and citizens have raised many concerns even before the pandemic brought in extra issues.
      • They have questioned the lack of studies to ascertain the need for the project and its impact on the environment, traffic and pollution.
    • Several key approvals for the proposed Parliament building have been pushed during the lockdown. This led to allegations of a lack of transparency.
    • They argue that in the situation created by the pandemic, the project must be deferred as the country can’t afford it at this time.

    Back2Basics: Making of New Delhi

    • The Central Vista was designed by Edwin Lutyens and Herbert Baker, to house the capital of British India.
    • The top of the Raisina Hill and adjacent hills in the area was flattened to create space for the buildings.
    • At his coronation as Emperor of India on December 12, 1911, Britain’s King George V announced the transfer of the seat of the Government from Calcutta to the ancient Capital of Delhi.
    • Thereafter, a 20-year-long project to build modern New Delhi was spearheaded by architects Edwin Lutyens and Herbert Baker.
    • They built Parliament House, Rashtrapati Bhavan, North and South Blocks, Rajpath, India Gate, National Archives and the princes’ houses around India Gate.
    • Thus, New Delhi was unveiled in 1931.

     

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  • Parliament & Women

    Context

    Due to systemic issues, Parliament continues to alienate women. The number of women representatives is still considerably small, but even more subtly, Parliament as a workspace continues to be built exclusively for men.

    Women’s participation in the initial years

    • In 1952, when the Indian Republic held its first Parliamentary session, there were 39 strong, intelligent, and passionate women as its member.
    • Leading in the world in inclusiveness: At a time when women formed only 1.7% of the total members of the United States Congress and 1.1% of the Parliament of the United Kingdom, India was leading the way in the fight towards more inclusive world democracies with 5.5% women representation.
    • Women played an important role in India’s struggle for independence and that contribution was reflected in their presence in the parliament.
    • What happened in 1952 was a highly progressive step, but 70 years hence, it seems we have strayed from that path.

    Electoral representation of women in India: Current scenario

    • 14.6 per cent in current Lock Sabha: In India, women currently make up 14.6 per cent of MPs (78 MPs) in the Lok Sabha, which is a historic high.
    • Although the percentage is modest, it is remarkable because women barely made up 9 per cent of the overall candidates in 2019.
    • In electoral representation, has fallen several places in the Inter-Parliamentary Union’s global ranking of women’s parliamentary presence, from 117 after the 2014 election to 143 as of January 2020. 
    • In terms of electoral quotas, there were two outstanding exceptions in the 2019 general elections.
    • Voluntary parliamentary quota: West Bengal under Mamata Banerjee and Odisha under Naveen Patnaik opted for voluntary parliamentary quotas, fielding 40 per cent and 33 per cent women candidates, respectively.
    • Women reservation bill: The bill to reserve 33 per cent seats for women in Parliament and state legislatures was passed in the Rajya Sabha in 2010, but it was never introduced in the Lok Sabha.
    • India ranks a dismal 146th in women’s representation in the national Parliament.
    • At the turn of the century, it ranked 66th.
    • The decline has come because progress has been piecemeal — several other countries have improved their share of women in Parliament far more rapidly.

    Struggle for inclusivity

    • Despite a good start in the past, our struggle with inclusivity has not eased.
    • Due to systemic issues, Parliament continues to alienate women.
    • The number of women representatives is still considerably small, but even more subtly, Parliament as a workspace continues to be built exclusively for men.

    Lack of inclusivity in the Parliament

    • Absence of gender-neutral language: A closer look at our parliamentary discourse and communication reveals a concerning and disconcerting absence of gender-neutral language.
    • After 75 years of Independence, Parliament often refers to women in leadership positions as Chairmen and party men.
    • In the Rajya Sabha, the Rules of Procedure continue to refer to the Vice-President of India as the ex-officio Chairman, stemming from the lack of gender-neutral language in the Constitution of India.
    • The alarming degree of usage of masculine pronouns assumes a power structure biased towards men.
    • Lack of gender-neutral Acts: The issue further extends to law-making.
    • In the last decade, there have hardly been any gender-neutral Acts.
    • Acts have made references to women not as leaders or professionals (such as policemen), but usually as victims of crimes.
    • The root of such instances lies with a gender-conforming Constitution.
    • In its present state, the Constitution reinforces historical stereotypes that women and transgender people cannot be in leadership positions, such as the President and the Vice-President of India.
    • This represents the failure of the many Union Governments which did not take the initiative of amending it.
    • In the past, amendments have been brought about to make documents gender neutral.
    •  In 2014, under the leadership of the then Speaker of the Lok Sabha, Meira Kumar, the Rules of Procedure of the Lok Sabha were made entirely gender neutral.

    Way forward

    • Correcting the language: Internationally, even mature democracies that legalised universal suffrage after India, such as Canada (1960 for Aboriginal women), Australia (1962 for Indigenous women), and the United States (1965 for women of African-American descent), have now taken concrete measures towards gender-inclusive legislation and communication..
    • Amendments: India can and must begin with an amendment to the Constitution and the entire reservoir of laws.
    • Focus on the deeper issues of aspiration: Once the language is corrected, the entire country, including Parliament, can focus on the deeper issues of the aspirations and growth of its woman workforce.
    • Women staff in Parliament: Women are not adequately represented in Parliament staff,.
    • We need a single, transparent appointment and promotion process for women staff in Parliament.
    • We need to make sure that their professional growth is not being hindered by other issues such as harassment and domestic responsibilities.

    Conclusion

    In the 21st century, when people of all genders are leading the world with compassion, strength and ambitions, the Indian Parliament needs to reflect on its standing.

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  • E-Vidhan System for Paperless Legislation

    A delegation of MLAs from Gujarat visited the UP Legislative Assembly to learn about the novel e-Vidhan system for paperless proceedings that has been recently adopted by the UP state assembly.

    E-Vidhan System

    • The National e-Vidhan Application (NeVA) is a system for digitising the legislative bodies of all Indian states and the Parliament through a single platform.
    • It includes a website and a mobile app.
    • The house proceedings, starred/unstarred questions and answers, committee reports etc. will be available on the portal.
    • Nagaland became the first state to implement NeVA, in March this year.

    Significance of NeVA

    • There has been a shift towards digitisation in recent years by the government.
    • NeVA aims for streamlining information related to various state assemblies, and to eliminate the use of paper in day-to-day functioning.
    • PM Modi mentioned the idea of “One Nation One Legislative Platform” in November 2021.
    • A digital platform not only gives the necessary technological boost to our parliamentary system, but also connects all the democratic units of the country.

    Has this been done elsewhere?

    • Himachal Pradesh’s Legislative Assembly implemented the pilot project of NeVA in 2014, where touch-screen devices replaced paper at the tables of the MLAs.
    • Though both Houses of Parliament have not gone fully digital yet, governments world over are heading towards embracing the digital mode.
    • In December last year, the Government of Dubai became the world’s first government to go 100 percent paperless.
    • It announced all procedures were completely digitised.
    • This, as per a government statement, would cut expenditure by USD 350 million and also save 14-million-man-hours.

    What are the challenges?

    • Access to devices and reliable internet and electricity was an issue particularly for legislators representing rural constituencies.
    • Lack of training and heightened concerns over security are some more recent issues in the road to digitization.

     

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  • India needs parliamentary supervision of trade pacts

    Context

    India is negotiating and signing several free trade agreements (FTAs) with countries like Australia, the UK, Israel, and the EU. While the economic benefits of these FTAs have been studied, there is very little discussion on the lack of parliamentary scrutiny of these treaties.

    Provisions in the Constitution

    • In the Constitution, entry 14 of the Union list contains the following item — “entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries”.
    • According to Article 246, Parliament has the legislative competence on all matters given in the Union list.
    • Thus, Parliament has the power to legislate on treaties. 
    • This power includes deciding how India will ratify treaties and thus assume international law obligations.
    • Article 253  elucidates that the power of Parliament to implement treaties by enacting domestic laws also extends to topics that are part of the state list.

    Lack of parliamentary oversight and its implications

    • No law laying down the process: While Parliament in the last seven decades has passed many laws to implement international legal obligations imposed by different treaties, it is yet to enact a law laying down the processes that India needs to follow before assuming international treaty obligations.
    • Given this legislative void, and under Article 73(the powers of the Union executive are co-terminus with Parliament), the Centre has been not just negotiating and signing but also ratifying international treaties and assuming international law obligations without much parliamentary oversight.
    • Arguably, Parliament exercises control over the executive’s treaty-making power at the stage of transforming a treaty into the domestic legal regime.
    • However, this is a scenario of ex-post parliamentary control over the executive.
    • In such a situation, Parliament does not debate whether India should or should not accept the international obligations; it only deliberates how the international law obligations, already accepted by the executive, should be implemented domestically.
    • Against the practice in other liberal democracies: This practice is at variance with that of several other liberal democracies.
    • In the US, important treaties signed by the President have to be approved by the Senate.
    • In Australia, the executive is required to table a “national interest analysis” of the treaty it wishes to sign in parliament, and then this is examined by a joint standing committee on treaties – a body composed of Australian parliamentarians.

    Way forward

    • Indian democracy needs to inculcate these healthy practices of other liberal democracies.

    Conclusion

    Effective parliamentary supervision will increase the domestic acceptance and legitimacy of international treaties, especially economic agreements, which are often critiqued for imposing undue restraints on India’s economic sovereignty.

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  • Delimitation fallouts

    Context

    Four years from now, when the delimitation of the constituencies will take place, India’s electoral democracy will stand on an existential crossroads.

    Historical background of North-South tension

    • There was a time, not all that long ago, when English speakers in the south of India routinely referred to our north as ‘Upper India’.
    • The Imperial Legislative Council, with its Central Legislative Assembly as the Lower House and the Council of State as the Upper House, being located in Delhi pushed that upperness further up.
    •  Later, the Constituent Assembly continued the ‘India’s north as India’s peak’ image.
    • Role of Congress: The Indian National Congress was from the very start, aware of the need for India’s regions to be seen as equal, bereft of any asymmetry.
    • Its very third session after Bombay (1885) and Calcutta (1886) was held in Madras (1887, and many times later).
    • The All India Kisan Sabha, the peasant wing of the Communist Party of India, likewise, which had first met in a ‘founder-conference’ in Lucknow in 1936, met at its fifth session in 1940 in Palasa, Srikakulam.
    • These considered arrangements embody the opening Article 1 of our Constitution: India, that is Bharat.

    What would be the Impact of delimitation

    • A delimitation of the constituencies that will elect Members of the Lok Sabha, following the population figures returned by the next decennial Census, is to take place in 2026.
    • Need to increase number of members: We cannot have, should not have, the same number of Members of Parliament — 543 — representing a vastly increased population in the Lok Sabha.
    • Mathematically speaking, the higher the number of people per constituency, the lower the impact each voter has on parliamentary representation — clearly an undesirable situation.
    • Reduced representation to States that stabilised their population: Re-arranging and standardising the number of people per constituency through the scheduled delimitation exercise will inevitably lead to a reduced representation for States that have managed to stabilise their populations, and to a higher representation for States that have not stabilised their populations.
    • Considering the Census data for 2011, almost half (48.6%) of our population (of approximately 1.38 billion) is contributed by the States of Uttar Pradesh, Maharashtra, Bihar, West Bengal and Madhya Pradesh.
    • Issues with population-based marking: A population-based marking out or re-arrangement of constituencies, as envisaged in Article 82 of the Constitution, will have the effect of giving more MPs to the States and Union Territories that have let their numbers grow, and will give markedly less MPs to those that have held their numbers in some check.
    • Realising the anomaly that a delimitation based on Census data would cause, a delimitation freeze was put in position by Prime Minister Indira Gandhi through the 42nd Amendment of the Constitution in 1976. 
    •  This was extended by Prime Minister Atal Bihari Vajpayee through the 84th Amendment.
    • It is this extension that is to end in 2026, placing us at a crossroads.

    Way forward

    • There are two alternatives before us:
    • 1] Onother freeze: One, we go in for another freeze, this time not for any specific period but for until all States have achieved population stabilisation.
    • 2] Mathematically equitable formula: Two, we request demographic and statistical experts to devise a mathematical model along the lines of the ‘Cambridge Compromise’ based on a mathematically equitable “formula” for the apportionment of the seats of the European Parliament between the member-states.

    Conclusion

    The population-stabilising States of India that is Bharat, which include all the southern States, must continue to enrich our legislative and parliamentary processes as they have been doing since the time of the Imperial Legislative Council, with no penalties having to be paid for their sense of responsibility. We need to limit population, not representation.

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  • On Section 124A Supreme Court has aligned itself with the collective conscience

    Context

    The Supreme Court’s seminal intervention in a batch of petitions challenging the constitutional validity of section 124A of the Indian Penal Code is a watershed moment in the progressive expansion of human rights jurisprudence.

    Abuse of sedition law

    • The slapping of sedition charges against political opponents and others in Maharashtra, Punjab, Rajasthan, Chhattisgarh, Tamil Nadu, Andhra Pradesh and Madhya Pradesh have confirmed that the abuse of the sedition law is no longer an aberration.
    • It has become a norm that has hollowed out the constitutional guarantee of fundamental rights and exposed individuals to the rigour of draconian laws unjustly invoked, outraging national sensitivities as never before.

    Significance of the move

    • In what is seen as a first in judicial history, the Supreme Court has virtually rendered redundant the provision of a criminal law without expressly declaring it as unconstitutional.
    • In an example of judicial statecraft, the court has shielded individuals against a harsh law without trenching on Parliament’s legislative remit or the executive’s command over policy decisions.
    • Plenary jurisdiction: Exercising plenary jurisdiction, the Supreme Court is expected to see through its suggestions/orders to the government, particularly when these concern the non-negotiable fundamental rights of citizens.
    • Suggestive jurisdiction: As an organ of the state, the Supreme Court’s suggestive jurisdiction is clearly in accord with its declared law (Nagaraj, 2006) that the state (of which the court is an integral constituent), is under a duty not only to protect individual rights but is also obliged to facilitate the same.
    • Validating the nations role: The court-inspired initiatives would also validate the nation’s preeminent role in the shaping of a new world order.

    Implications of the law

    • Nudging the government towards anti-lynching law: As with the sedition law, it can nudge the government to enact an anti-lynching humanitarian law as suggested by it and a comprehensive law against custodial torture.
    •  Law against custodial torture: The absence of an anti-custodial torture law, a glaring gap in the architecture of the criminal justice system, is inexplicable considering the command of Article 21, recommendations of the Select Committee of Rajya Sabha (2010), the Law Commission of India (2017) and the Human Rights Commission and the judgments of the Supreme Court (Puttaswamy, 2017; Jeeja Ghosh, 2016; and Shabnam, 2015).
    • Implications for the UAPA: It is expected likewise from the court to intervene suitably and read down the UAPA and other criminal laws that have been repeatedly misused to trample upon the civil liberties and rights of the people.

    Conclusion

    This is indeed the moment to seize, as the government reviews the nation’s legal structures. The initiatives suggested above are in aid of democracy anchored in the inviolability of human rights and would enhance India’s soft power in our engagement with the international community.

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  • Marital Rape

    Context

    On May 10, 2022, a two-judge bench of the Delhi High Court gave a split ruling on marital rape, thus ensuring a future hearing in the Supreme Court.

    Why rape and marriage were seen as mutually exclusive

    • The concepts of rape and marriage were seen as mutually exclusive – they could not be brought together.
    • Across the world, and till very recently, marriage has been explicitly treated as being outside the purview of rape.
    • Even in the Western countries that we associate with the more “advanced” practices of gender equality, marital rape was treated as an exception to the crime of rape till the early 1990s.
    • In the absence of a universal definition, several scholars take marriage to be an institution where a man and a woman live together, have sexual relations and engage in cooperative economic activity.
    • Link between marriage and property: Others have emphasised the link between marriage and property.
    • The dominant form of marriage in the modern West became quite distinctly patriarchal, visible in late 18th-century British law, for instance, whereby a wife became the property of her husband upon marriage.
    • Husbands, therefore, had the right to access their wives sexually, without the question of coercion or consent being on the horizon in the first place.
    • As property, wives had to be protected from the (illegal) sexual access of other men, and here too, their consent was irrelevant.

    Introduction of marital rape

    • If what distinguishes the relationship of husband and wife from other relations between men and women is the legitimate expectation of sexual relations, then the introduction of marital rape signals the entry of a new and equally legitimate expectation: A wife’s consent to sexual relations is essential, and in this, she is no different from other women.
    • Husbands no longer enjoy unquestioned rights over the bodies of their wives — this is what it means for a wife to be a person with bodily integrity.

    Conclusion

    It is strange, indeed, that most parts of the world, India included, became modern while continuing to believe that wives are the property of husbands.

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  • The Delhi MCA Act and the spirit of federalism

    Context

    Recently, both Houses of Parliament passed the Delhi Municipal Corporation (Amendment) Act, 2022, to unify the trifurcated Delhi Municipal Corporations.

    Background of the trifurcation

    • The split-up was first proposed in the 1987 Balakrishnan Committee Report which was bolstered in the 2001 Virendra Prakash Committee Report.
    • The proposal finally took shape in 2011 and the law to trifurcate was enacted.
    • A seven-member Delhi Legislative Assembly Panel was set up in 2001 to study the recommendations and suggest modalities.
    • Trifurcation in 2011: The proposal finally took shape in 2011 and the law to trifurcate was enacted.

    Changes introduced by the amendment

    • The law provides that the power to determine the number of wards, extent of each ward, reservation of seats, number of seats of the Corporation, etc. will now be vested in the Central government. 
    • The number of seats of councillors in the Municipal Corporations of Delhi is also to be decided now by the Central government.
    • By exercising that very power, the number of councillors to the Municipal Corporations of Delhi has been reduced from 272 to 250.
    • The Central government has also taken over powers from the State to decide on matters such as ‘salary and allowances, leave of absence of the Commissioner, the sanctioning of consolidation of loans by a corporation, and sanctioning suits for compensation against the Commissioner for the loss or waste or misapplication of municipal fund or property

    Issues with the changes made

    • The Central government’s line is that the amendment has been passed as in Article 239AA of the Constitution, which is a provision that provides for special status to Delhi.
    • No consultation with Delhi govt.-The large-scale changes by the Central government has been done without any consultation with the Delhi government.
    • Not in line with  Part IXA of the Constitution:  Part IXA specifically states that it will be the Legislature of the State that will be empowered to make laws concerning representation to the municipalities.
    • Part IXA is a specific law while Article 239AA is general law: The argument of the Centre that Article 239AA can be applied over and above Part IXA of the Constitution does not hold good as the latter is a specific law that will override the general law relatable to Article 239AA.
    • Against the federalism: In State of NCT of Delhi vs Union of India judgment the Supreme Court held, “The Constitution has mandated a federal balance wherein independence of a certain required degree is assured to the State Governments.”
    • It was made clear that the aid and the advice of the State government of Delhi would bind the decision of the Lieutenant General in matters where the State government has the power to legislate.
    • No doubt, the amendment to the Delhi Municipal Corporation Act, 1957 will lead to further litigation on the aspect of a sharing of powers between the State of NCT of Delhi and the Central government.

    Conclusion

    The interference of the Centre in matters such as municipal issues strikes a blow against federalism and the celebrated Indian model of decentralisation.

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  • Criminal Procedures (Identification) Bill violates right against self-incrimination

    Context

    The Bill proposes to collect “measurements” of convicted persons, those who are arrested (or detained under preventive detention laws) or those who have executed bonds promising good behaviour.

    Dilution of right against self-incrimination

    • The Constitution, under Article 20(3), protects an accused from being compelled to give witness against himself.
    • This fundamental right has been diluted over the years.
    • In 2005, the Code of Criminal Procedure (CrPC) was amended to allow a magistrate to order any person to give their handwriting samples for the purpose of an investigation or proceeding.
    • In 2019, the Supreme Court, in Ritesh Sinha v. State of UP, held that such handwriting samples could include voice samples.
    • It relied upon its judgment in the Kathi Kalu Oghad case (1962) that held that giving palm impressions or footprints could not be called self-incriminatory because impressions were unchangeable, except in rare cases”.
    • Instead, it held that the Constitution bars the compulsory extraction of a statement — oral or written — from the accused, “which makes the case against the accused person at least probable, considered by itself”.

    Provisions in the Bill

    • While the databasing of convicted persons is not new, the new piece of legislation allows for taking information, including finger-impressions, palm-print impressions, footprint impressions, photographs, iris and retina scan, physical, biological samples and their analysis, behavioural attributes including signatures, handwriting or any other examination referred to in Sections 53, 53A of the CrPC.
    • It also mandates the National Crime Records Bureau to store, preserve and destroy the record of measurements at the national level as well as process and share them with any law enforcement agency.

    Issues with the Bill

    • Right against self-incrimination is unlikely to apply to technologies in use today.
    • Wide scope of under new technologies: The logic that was used in 1962 to interpret what would violate the right against self-incrimination is unlikely to apply to technologies in use today.
    • The Bill is vaguely worded and the nature of the processing, sharing, and dissemination of data it entails will most certainly involve the use of new and emerging technologies. 
    •  Their application to policing and the criminal justice system has new implications for the right against self-incrimination.
    • The compulsory submission of such information could have chilling effects after being subjected to new technologies – in other words, the past of an accused person might be enough to incriminate him.
    • Possibility of coercive data collection: The Bill proposes to collect “measurements” of convicted persons, those who are arrested (or detained under preventive detention laws) or those who have executed bonds promising good behaviour.
    • Only those arrested for petty offences that are punishable with less than seven years may not be obliged to allow the recording of measurements.
    • This rings a warning bell about coercive data collection, especially when seen in the light of the practices used to police oppressed communities.
    • For instance, under the Criminal Tribes Act, 1871, many nomadic and semi-nomadic communities were labelled hereditary criminals.
    •  Despite the Act being repealed in 1952, these denotified tribal (“Vimukta”) communities continue to be treated as criminals by birth through the “Habitual Offenders” provisions in state-level police regulations that allow local police stations to keep records of such persons residing in their area.
    • It condemns a section of the country’s population to several cycles of arrest, bail, and acquittal.
    • The new piece of legislation could make the practice of history-sheeting, undertaken when a person is merely alleged of a crime, and not convicted, even more coercive.
    • Long storage period and no clear process for destroying information: the “measurements” are to be stored at the national level for 75 years, with no clear procedure outlined for destroying the information.

    Conclusion

    The right against self-incrimination is at the heart of protection against police excess and torture. Record-keeping as mandated by the Bill violates this right. Parliament must make laws that protect against such blatant attacks on fundamental rights and freedoms, rather than enable them.

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  • It’s time to repeal AFSPA

    Context

    The Centre on Thursday significantly reduced the footprint of the Armed Forces Special Powers Act (AFSPA), 1958 in the Northeast, withdrawing it entirely from 23 districts in Assam; and partially from seven districts in Nagaland, six districts in Manipur, and one district in Assam.

    Background of AFSPA

    • AFSPA was adopted in 1958 during the early days of the Naga uprising to apply to what was then the state of Assam and the union territory of Manipur.
    • The counterinsurgency campaigns against the Nagas were counterproductive.
    • In the following decades, as new states were formed in Northeast India, AFSPA was amended to accommodate the names of those states.

    Provision under AFSPA, 1958

    • AFSPA allows civilian authorities to call on the armed forces to come to the assistance of civil powers.
    • Sweeping powers to armed forces: Once a state — or a part of a state — is declared “disturbed” under this law, the armed forces can make preventive arrests, search premises without warrants, and even shoot and kill civilians.
    • Approval of central government for legal action: Legal action against those abusing these powers requires the prior approval of the central government — a feature that functions as de facto immunity from prosecution.

    Issues with AFSPA

    • Critics charge that it effectively suspends fundamental freedoms and creates a de facto emergency regime.
    • In 2012, a petition was filed in the Supreme Court to investigate as many as 1,528 cases of fake encounters that allegedly occurred in the state between 1979 and 2012.
    • Supreme Court appointed a three-member commission to inquire into the first six of the 1,528 cases in the petition.
    • Its interim judgment of July 2016 said that “there is some truth in the allegations, calling for a deeper probe”.
    • In the court’s view, AFSPA clearly provided the context for these killings.

    Demand for changes and repeal

    • When the Supreme Court pronounced AFSPA constitutional in 1997, it also recommended some changes.
    • Among them was the stipulation that a “disturbed area” designation be subjected to review every six months.
    • In some parts of Northeast India, AFSPA is now routinely extended every six months. But there is little evidence that any meaningful review occurs at those times.
    • In 2004, the then central government set up a five-member committee under former Supreme Court Justice Jeevan Reddy, which submitted its report in 2005 recommending the repeal of AFSPA, calling it “highly undesirable”, and saying it had become a symbol of oppression.
    • Subsequently, the Second Administrative Reforms Commission, headed by Veeerapa Moily, endorsed these recommendations.

    Conclusion

    One must welcome the government’s announcement to reduce the number of such areas. But not to consider the repeal of this law, which is now almost as old as the Republic, is a missed opportunity to reflect on why this law has or has not been successful, and to learn from this history and strengthen the foundation of our democracy.

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