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GS Paper: Representation Of People’s Act

  • Exploring Assam’s Delimitation Draft

    assam delimitation

    Central Idea

    • The recent draft proposal on the Delimitation of Assembly and Lok Sabha constituencies in Assam by the Election Commission (EC) has stirred significant controversy.
    • The proposal suggests reshaping constituencies, increasing the number of reserved seats, and potentially affecting the political fortunes of various organizations and parties.

    What is Delimitation?

    • Objective: Delimitation aims to redraw constituency boundaries to maintain equal population representation in Assembly and Lok Sabha seats.
    • Changing Constituencies: Delimitation may result in the alteration of constituency limits and, in some cases, the number of seats in a state.

    Delimitation Process and Commission

    • Independent Delimitation Commission: Delimitation is carried out by an independent Delimitation Commission (DC) constituted by the Union government.
    • Terms of Reference: The DC determines the number and boundaries of constituencies, ensuring population equality and identifying reserved seats for Scheduled Castes and Scheduled Tribes.
    • Implementation: The draft proposals are published for public feedback, followed by public sittings to consider objections and suggestions. The final order is published in official gazettes.

    Historical Context of Delimitation

    • Early Delimitation Exercises: The first delimitation exercise in 1950-51 was conducted by the President. Subsequently, the responsibility was shifted to independent Delimitation Commissions.
    • Frequency of Delimitation: Delimitation has been carried out four times, in 1952, 1963, 1973, and 2002, based on the Acts enacted in respective years.

    Postponement of Delimitation until 2026

    • Frozen Seats: Delimitation was postponed after the 1981 and 1991 Censuses, freezing the number of seats in Lok Sabha and Assemblies.
    • Justification for Postponement: An amendment further delayed delimitation until 2026, with the rationale that uniform population growth would be achieved throughout the country by that time.
    • The Last Delimitation: The most recent delimitation exercise, based on the 2001 Census, focused on adjusting boundaries of existing seats and reworking the number of reserved seats.

    Delimitation Exercise in Assam

    • Delimitation exercises were carried out periodically, but in 1976, it was suspended due to the family planning program.
    • The process was deferred for Arunachal Pradesh, Assam, Jammu and Kashmir, Manipur, and Nagaland in 2008 due to “security risks.”
    • The Delimitation Commission for Assam and other states was reconstituted by the Central Government in 2020.

    Overview of the Proposed Changes

    • Reshaping of Constituencies: The draft proposal suggests reshaping and renaming 24 Assembly seats.
    • Increased Reserved Seats: The number of reserved seats for Scheduled Tribes (ST) and Scheduled Castes (SC) would be increased from 16 to 19 and eight to nine, respectively.
    • Seat Juggling: The proposal involves converting six reserved seats each for SCs and STs into unreserved seats. Additionally, nine ST and seven SC general seats would become reserved.
    • Impact on Political Figures: Notable political figures, including MLAs and MPs from various parties, may lose their seats due to the proposed changes.

    Opposition and Concerns

    • Protests and Discontent: The draft proposal has faced opposition and protests across Assam, with different groups expressing dissatisfaction with the changes.
    • Questioning the Legality: Some have raised concerns regarding the interpretation of Section 8A of the Representation of the People Act, 1950, which allows reorientation of seats without altering their total number.
    • Use of Census Data: The use of 2001 Census data instead of the more recent 2011 Census data has raised suspicion and allegations of a hidden agenda.
    • Timing and Allegations: Opposition parties have criticized the timing of the delimitation exercise, alleging that it was rushed to affect representation ahead of the 2024 Lok Sabha polls.

    Future Outlook and Potential Changes

    • EC’s Call for Suggestions: The EC has invited suggestions and omissions regarding the draft proposal and plans to revisit the State to engage with stakeholders.
    • Legal Challenges: The All India United Democratic Front (AIUDF) has threatened to approach the court if the draft is accepted.
    • Chief Minister’s Perspective: Assam CM has emphasized the need to protect the rights of indigenous people and hinted at potential adjustments to ensure their interests are safeguarded.

     

  • Election Commission Revised It’s List of National and State Parties

    Central Idea

    • The Election Commission of India (EC) recently revised its list of recognised national and state parties.

    The EC’s decision

    • The EC recognised AAP as a national party and revoked the national party status of TMC, NCP and CPI.
    • It also revoked the state party status granted to Rashtriya Lok Dal in Uttar Pradesh, Bharat Rashtra Samithi in Andhra Pradesh, People’s Democratic Alliance (Manipur), Pattali Makkal Katchi (Puducherry), Revolutionary Socialist Party (West Bengal) and Mizoram People’s Conference (Mizoram).
    • The EC laid down strict technical criteria for a party to be recognised as a national party, based entirely on its electoral performance. A party may gain or lose national/state party status from time to time, depending on the fulfilment of these conditions.

    Process of recognition and derecognition

    • Election Symbols Order, 1968: The process of recognition and derecognition is stipulated under the Election Symbols (Reservation and Allotment) Order, 1968, which lays down the criteria for recognition as a national or state party.
    • Specific stipulations: The order has specific stipulations which also find concurrence in the EC’s Political Parties and Election Symbols, 2019 Handbook.
    • Based on poll performance: The EC’s decision was based on a review of the parties’ poll performances since 2014.

    What is a National Party?

    • The name suggests that a national party would be one that has a presence ‘nationally’, as opposed to a regional party whose presence is restricted to only a particular state or region.
    • National parties are usually India’s bigger parties.
    • However, some smaller parties, like the communist parties, are also recognised as national parties.
    • A certain stature is sometimes associated with being a national party, but this does not necessarily translate into having a lot of national political clout.

    Criteria for recognition of political parties

    Criteria National Party State Party
    At least 6% of valid votes in 4+ states OR 4 Lok Sabha seats from at least 3 states OR recognition as a state party in at least 4 states ✓
    2% of all Lok Sabha seats in the last such election, with MPs elected from at least three states. ✓
    Two seats plus a 6% vote share in the last Assembly election in that state ✓
    One seat plus a 6% vote share in the last Lok Sabha election from that state ✓
    3% of the total Assembly seats or 3 seats, whichever is more. ✓
    One of every 25 Lok Sabha seats (or an equivalent fraction) from a state. ✓
    An 8% state-wide vote share in either the last Lok Sabha or the last Assembly polls. ✓

    Benefits of recognition as a national party

    Benefit Description
    Election symbol The election symbol of the party will remain unchanged across India, making it easier for voters to identify and vote for the party.
    Free broadcast/telecast time National parties get free broadcast/telecast time on Akashvani and Doordarshan during the general election, giving them greater visibility and reach.
    Star campaigners National parties can have a maximum of 40 star campaigners whose travel expenses will not be counted in the accounts of the candidates.
    Consultation with the Election Commission National parties will have the privilege of consultation with the EC in the setting of election dates, and giving inputs in setting electoral rules and regulations.
    Top slots on the EVM/ballot paper Top slots on the EVM/ballot paper are reserved for national parties, giving them greater visibility and prominence on the ballot.

     Perception and legal challenges

    • The greater impact, however, will be concerning the public perception of the party, which is why many who have lost national party status are planning to go to courts.
    • Some parties are questioning the power of the EC though it stands legitimised by the Supreme Court.
    • The EC has no discretion in the matter as the rules are very specific and repeatedly emphasise that a party is eligible if, and only if it fulfils all criteria.

    Conclusion

    • The EC’s decision to revise the list of recognized national and state parties has faced legal challenges from some parties questioning the power of the EC. However, the EC’s decision is based on strict technical criteria laid down by the EC and the process of recognition and derecognition is stipulated under the Election Symbols (Reservation and Allotment) Order, 1968.

    Mains Question

    Q. The Election Commission of India (EC) recently revised its list of recognised national and state parties. In this light highlight the criteria for recognition of political parties and discuss the benefits of recognition as a national party

  • How is a ‘National Party’ in India defined?

    The Election Commission of India recognised the Aam Aadmi Party (AAP) as a national party, while revoking the status of the All India Trinamool Congress, Nationalist Congress Party (NCP) and the Communist Party of India (CPI).

    What is National Party?

    • The name suggests that a national party would be one that has a presence ‘nationally’, as opposed to a regional party whose presence is restricted to only a particular state or region.
    • National parties are usually India’s bigger parties.
    • However, some smaller parties, like the communist parties, are also recognised as national parties in India.
    • A certain stature is sometimes associated with being a national party, but this does not necessarily translate into having a lot of national political clout.

    How is a political party defined?

    The ECI’s Political Parties and Election Symbols, 2019 handbook species following criteria:

    National Party Definition

    For recognition as a “National Party” in India, the conditions specified are:

    1. a 6% vote share in the last Assembly polls in each of any four states, as well as four seats in the last Lok Sabha polls; or
    2. 2% of all Lok Sabha seats in the last such election, with MPs elected from at least three states; or
    3. Recognition as a state party in at least four states.

    For recognition as a “State Party”, any one of five conditions needs to be satisfied:

    1. two seats plus a 6% vote share in the last Assembly election in that state; or
    2. one seat plus a 6% vote share in the last Lok Sabha election from that state; or
    3. 3% of the total Assembly seats or 3 seats, whichever is more; or
    4. one of every 25 Lok Sabha seats (or an equivalent fraction) from a state; or
    5. an 8% state-wide vote share in either the last Lok Sabha or the last Assembly polls.

    Benefits for recognized National Parties in India

    • This is subject to the fulfillment of the conditions prescribed by the Commission in the Election Symbols (Reservation and Allotment) Order, 1968.

    (a) Reserved Symbol

    • If a party is recognised as a ‘state party’, it is entitled for exclusive allotment of its reserved symbol to the candidates set up by it in the state in which it is so recognised.
    • If a party is recognised as a ‘national party’ it is entitled for exclusive allotment of its reserved symbol to the candidates set up by it throughout India.

    (b) Proposer for nomination

    • Recognised ‘state’ and ‘national’ parties in India need only one proposer for filing the nomination.

    (c) Campaigning benefits

    • National Parties in India are also entitled for two sets of electoral rolls free of cost and broadcast/telecast facilities over state-owned Akashvani/Doordarshan during the general elections.

     

  • Disqualification of a MP: Constitutional and Legal Issues

    Central Idea

    • The recent conviction and disqualification of Congress leader Rahul Gandhi have raised some important constitutional and legal issues, especially related to the disqualification of members of the legislature. The interpretation of Section 8 of the Representation of the People Act, 1951, and the role of the President in cases of disqualification is resurfaced again.

    Background of the case

    • The Congress leader during campaigning for the 2019 parliamentary polls had made a remark, “How come all the thieves have Modi as the common surname?”
    • On the basis of this remark, a criminal defamation case was filed against him in a surat court by a BJP MLA who had alleged that the congress leader while addressing a poll rally in 2019 in Karnataka defamed the entire Modi community with his remark.
    • The Surat court on Thursday convicted the Congress leader in a criminal defamation case and awarded him a two-year jail term.
    • On basis of this, the Congress leader has been disqualified from the Lok Sabha,. A notice issued by the Lok Sabha Secretariat said that he stood disqualified from the House from March 23, the day of his conviction.

    Disqualification under the Representation of the People Act (RPA), 1951

    • Grounds of disqualification: Section 8 of the RPA, 1951 specifies the various offenses, conviction for which entail the disqualification of a member of the legislature.
    • Clause (3): Clause (3) of this section says that a person convicted of any offense other than those mentioned in the other two clauses, and sentenced to not less than two years shall be disqualified from the date of conviction.
    • Exemption under clause (4): The clause (4) has exempted sitting members from instant disqualification for three months to enable them to appeal against the conviction.

    Role of the President in Disqualification

    • President has the authority: Article 103 of the Indian Constitution provides the President of India as the authority who decides that a sitting member has become subject to disqualification in all cases which come under Article 102(1).
    • President’s adjudicatory and declaratory functions: There are differences of opinion on the scope of Article 103, but the Supreme Court, in Consumer Education and Research Society vs Union of India (2009), upholds the position that the President performs adjudicatory and declaratory functions here.

    Flaws in the Judgment in Lily Thomas Case

    • Parliament cannot enact a temporary exemption: It says that Parliament cannot enact a temporary exemption in favor of sitting members of the Legislature.
    • Article 103 provides an exception: But Article 103 itself provides an exception in the case of sitting Members by stating that the disqualification of sitting Members shall be decided by the President.
    • Distinction between the candidates and sitting Members: The Constitution itself makes a distinction between the candidates and sitting Members. This was ignored by the judgment and the Court struck down the three months window given to the sitting members to enable them to appeal against their conviction.

    Defamation in India

    • What is Defamation: Defamation refers to the act of publication of defamatory content that lowers the reputation of an individual or an entity when observed through the perspective of an ordinary man. Defamation in India is both a civil and a criminal offence.
    • The Laws which Deal with Defamation: Sections 499 and 500 of IPC: Sections 499 and 500 in the IPC deal with criminal defamation. While the former defines the offence of defamation, the latter defines the punishment for it.

    Facts for prelims: Lily Thomas Verdict

    • The Lily Thomas verdict was a landmark judgment delivered by the Supreme Court of India in 2013.
    • The verdict struck down a provision in the Representation of the People Act (RPA), which allowed convicted lawmakers to continue in office if they filed an appeal within three months of their conviction.
    • The provision, which was part of Section 8(4) of the RPA, had been criticized for allowing convicted politicians to continue to hold public office while their appeals were pending in higher courts, and for contributing to the criminalization of politics in India.
    • The verdict was seen as a major step towards cleaning up Indian politics and ensuring that convicted criminals do not get to occupy public offices.

    Conclusion

    • The recent conviction and disqualification of Congress leader Rahul Gandhi have raised important constitutional and legal issues related to the disqualification of members of the legislature. While the issues relating to the disqualification of Rahul Gandhi will be dealt with by the appellate courts, the legal and constitutional issues raised by this case need to be examined carefully
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  • SC to examine if Electoral Bond pleas need to be referred to Constitution Bench

    bond

    The Supreme Court will examine whether petitions challenging the validity of the electoral bonds scheme need to be referred to a Constitution Bench.

    What is a Constitution Bench?

    • The constitution bench is the name given to the benches of the Supreme Court of India.
    • The Chief Justice of India has the power to constitute a Constitution Bench and refer cases to it.

    Constitution benches are set up when the following circumstances exist:

    1. Interpretation of the Constitution: Article 145(3) provides for the constitution of at least five judges of the court which sit to decide any case “involving a substantial question of law as to the interpretation” of the Constitution of India.
    2. President of India seeking SC’s opinion: When the President has sought the Supreme Court’s opinion on a question of fact or law under Article 143 of the Constitution. Article 143 of the Constitution provides for Advisory jurisdiction to the SC. As per the provision, the President has the power to address questions to the apex Court, which he deems important for public welfare.
    3. Conflicting Judgments: When two or more three-judge benches of the Supreme Court have delivered conflicting judgments on the same point of law, necessitating a definite understanding and interpretation of the law by a larger bench.
    • The Constitution benches are set up on ad hoc basis as and when the above-mentioned conditions exist.
    • Constitution benches have decided many of India’s best-known and most important Supreme Court cases, such as:
    1. K. Gopalan v. State of Madras (Preventive detention)
    2. Kesavananda Bharati v. State of Kerala (Basic structure doctrine) and
    3. Ashoka Kumar Thakur v. Union of India (OBC reservations) etc.

     

    What are Electoral Bonds?

    • Electoral bonds are banking instruments that can be purchased by any citizen or company to make donations to political parties, without the donor’s identity being disclosed.
    • It is like a promissory note that can be bought by any Indian citizen or company incorporated in India from select branches of State Bank of India.
    • The citizen or corporate can then donate the same to any eligible political party of his/her choice.
    • An individual or party will be allowed to purchase these bonds digitally or through cheque.

    About the scheme

    • A citizen of India or a body incorporated in India will be eligible to purchase the bond
    • Such bonds can be purchased for any value in multiples of ₹1,000, ₹10,000, ₹10 lakh, and ₹1 crore from any of the specified branches of the State Bank of India
    • The purchaser will be allowed to buy electoral bonds only on due fulfillment of all the extant KYC norms and by making payment from a bank account
    • The bonds will have a life of 15 days (15 days time has been prescribed for the bonds to ensure that they do not become a parallel currency).
    • Donors who contribute less than ₹20,000 to political parties through purchase of electoral bonds need not provide their identity details, such as Permanent Account Number (PAN).

    Objective of the scheme

    • Transparency in political funding: To ensure that the funds being collected by the political parties is accounted money or clean money.

    Who can redeem such bonds?

    • The Electoral Bonds shall be encashed by an eligible Political Party only through a Bank account with the Authorized Bank.
    • Only the Political Parties registered under Section 29A of the Representation of the People Act, 1951 (43 of 1951) and which secured not less than one per cent of the votes polled in the last General Election to the Lok Sabha or the State Legislative Assembly, shall be eligible to receive the Electoral Bonds.

    Restrictions that are done away

    • Earlier, no foreign company could donate to any political party under the Companies Act
    • A firm could donate a maximum of 7.5 per cent of its average three year net profit as political donations according to Section 182 of the Companies Act.
    • As per the same section of the Act, companies had to disclose details of their political donations in their annual statement of accounts.
    • The government moved an amendment in the Finance Bill to ensure that this proviso would not be applicable to companies in case of electoral bonds.
    • Thus, Indian, foreign and even shell companies can now donate to political parties without having to inform anyone of the contribution.

    Issues with the Scheme

    • Opaque funding: While the identity of the donor is captured, it is not revealed to the party or public. So transparency is not enhanced for the voter.
    • No IT break: Also income tax breaks may not be available for donations through electoral bonds. This pushes the donor to choose between remaining anonymous and saving on taxes.
    • No anonymity for donors: The privacy of the donor is compromised as the bank will know their identity.
    • Differential benefits: These bonds will help any party that is in power because the government can know who donated what money and to whom.
    • Unlimited donations: The electoral bonds scheme and amendments in the Finance Act of 2017 allows for “unlimited donations from individuals and foreign companies to political parties without any record of the sources of funding”.

    Way ahead

    • The worries over the electoral bond scheme, however, go beyond its patent unconstitutionality.
    • The concern about the possibility of misuse of funds is very pertinent.
    • The EC has been demanding that a law be passed to make political parties liable to get their accounts audited by an auditor from a panel suggested by the CAG or EC. This should get prominence.
    • Another feasible option is to establish a National Election Fund to which all donations could be directed.
    • This would take care of the imaginary fear of political reprisal of the donors.
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  • E-Postal Ballot for Overseas Indian Voters

    post-vote

    Central idea: The Election Commission of India (EC) has proposed to facilitate the electronically-transmitted postal ballot system for overseas Indian voters.

    Why such a move?

    • The total number of overseas voters on January 1, 2023, was over 1.15 lakh.

    Measures taken

    • The Representation of the People (Amendment) Bill, 2018 was passed by the Lok Sabha in August 2018 on the recommendation of the EC.
    • The Bill sought to enable overseas electors to cast their vote either in person or by proxy.
    • However, it lapsed when the 16th Lok Sabha was dissolved as it was pending in the Rajya Sabha.

    How can overseas voters currently vote in Indian elections?

    • Prior to 2010, an Indian citizen who is an eligible voter and was residing abroad for more than six months, would not have been able to vote in elections.
    • This was because the NRI’s name was deleted from electoral rolls if he or she stayed outside the country for more than six months at a stretch.
    • After the passing of the Representation of the People (Amendment) Act, 2010, eligible NRIs who had stayed abroad beyond six months have been able to vote, but only in person at the polling station where they have been enrolled as an overseas elector.
    • Just as any resident Indian citizen above the age of 18 years) is eligible to vote in the constituency where she/he is a resident, and overseas Indian citizens are also eligible to do so.
    • In the case of overseas voters, the address mentioned in the passport is taken as the place of ordinary residence and chosen as the constituency for the overseas voter to enrol in.

    How has the existing facility worked so far?

    • Hike in voters: From merely 11,846 overseas voters who registered in 2014, the number went up to close to a lakh in 2019. But the bulk of these voters (nearly 90%) belonged to just one State — Kerala.
    • Section 20-1A, Part III of the RP Act: It addresses this to some extent by qualifying “a person absenting himself temporarily from his place of ordinary residence shall not by reason thereof cease to be ordinarily resident therein.
    • Proxyprovisions: The Bill provided for overseas voters to be able to appoint a proxy to cast their votes on their behalf, subject to conditions laid down in the Conduct of Election Rules, 1961.
    • Electronically Transmitted Postal Ballot System: The ECI then approached the government to permit NRIs to vote via postal ballots similar to a system that is already used by service voters, (a member of the armed Forces of the Union; or a member of a force to which provisions of the Army Act, 1950 (46 of 1950) which is ETPBS. The ECI proposed to extend this facility to overseas voters as well.

    What is ETPBS and how does it function?

    • The Conduct of Election Rules, 1961 was amended in 2016to allow service voters to use the ETPBS.
    • Under this system, postal ballots are sent electronicallyto registered service voters.
    • The service voter can then download the ETPB(along with a declaration form and covers), register their mandate on the ballot and send it to the returning officer of the constituency via ordinary mail.
    • The post will include an attested declaration form(after being signed by the voter in the presence of an appointed senior officer who will attest it).
    • The postal ballot must reach the returning officer by 8 a.m.on the day of the counting of results.
    • In the case of NRI voters, those seeking to vote through ETPBS will have to inform the returning officer at least five days after notification of the election.

    Are postal ballots a viable means of voting?

    • The ETPBS method allowed for greater turnout among service voters in the 2019 Lok Sabha election.
    • With the increasing mobility of citizens across countries for reasons related to work, the postal ballot method has been internationally recognized.
    • A postal ballot mechanism that allows for proper authentication of the ballot at designated consular/embassy offices and an effective postal system should ease this process for NRIs.

    Back2Basics: NRI vs OCI

    Non-Resident Indian (NRI)

    • To mention it, NRI is someone who is not a resident of India.
    • However, the law is much more complicated and must be delved deeper to gain an inclusive insight into the sector.
    • A person is considered a resident of India if he/she has been staying in India for a minimum tenure of 182 days during the previous financial year of a particular year. OR
    • A person living in India for a total of 365 days during the previous four financial years and a minimum of 60 days during the last financial years is considered a citizen for a particular year.
    • Now an NRI or a non-resident of India is eligible to pay charges for only the first two situations, which means either the income received or earned in India.
    • Therefore, the NRI status also influences the enjoyable rights of that person.

    Overseas Citizen of India (OCI)

    • OCI is a card issued by the government of India that denotes that a non-resident or foreigner has been permitted to stay and work within Indian boundaries.
    • Hence, this card provides foreigners with an immigration status without any limited tenure.
    • There are cases where PIOs of specific categories are allowed for OCI cards that have migrated from India to foreign countries (except Pakistan and Bangladesh) if the other government agrees for dual citizenship.
    • An individual holding an OCI card can be an overseas citizen of India in layman’s language.
    • So an OCI is not a citizen of India, but the Indian government has given the cardholder permission to reside and work within the boundaries of India.
    • Residents migrating from Pakistan and Bangladesh are not eligible for holding the OCI card. Even if their parents are citizens of both countries, the applicants will be denied having an OCI card.

     

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  • Concerns with linking Aadhaar with Voter IDs

    adhaar

    Central idea: The article discusses the potential issues and concerns related to the Indian government’s proposal to link Aadhaar with Voter IDs.

    Total Aadhaar-Voter ID linkages

    • Around 60% of India’s electors now have their Aadhaar number linked to their name on the voter rolls.
    • It has achieved saturation of over 90% in States like Tripura, which went to the polls recently.
    • States like Gujarat and Delhi are lagging where only around 30% of the electorate has provided an Aadhaar number to election officials.

    What is the move about?

    • The linking is being carried out by filling Form 6B, which is provided by election officials going door-to-door to collect Aadhaar or alternate ID from registered voters.
    • The form was the result of the Election Laws (Amendment) Act passed in 2021 to allow the linking of Voter IDs and Aadhaar.
    • While the Election Commission (EC) maintains that providing an Aadhaar is optional, Form 6B requires voters to declare that they do not have an Aadhaar to avoid providing the number.

    Aadhaar-Voter ID linkage: Why does the government want this?

    • Accurate voter’s record: The EC conducts regular exercises to maintain an updated and accurate recordof the voter base.
    • Avoid duplicate voters: A part of this exercise is to weed out duplication of voters.
    • Identify unique voters: As per the government, linkage of Aadhaar with voter IDs will assist in ensuring that only one Voter ID is issued per citizen of India.

    Is the linking of Aadhaar with one’s Voter ID mandatory?

    • In December 2021, Parliament passed the Election Laws (Amendment) Act, 2021.
    • This was to amend the Representation of the People Act, 1950and Section 23(4) was inserted in the RP Act.
    • It states that the electoral registration officerMAY require voters to furnish their Aadhaar numbers to verify Authencity of voters list.

    Why there is such proposal for linking?

    The preference to use Aadhaar for verification and authentication, both by the state and private sector, stems from few reasons:

    • Increase in UID-holders:First, at the end of 2021, 99.7% of the adult Indian population had an Aadhaar card.
    • Most versatile document:This coverage exceeds that of any other officially valid document such as driver’s licence, ration cards, PAN cards etc. that are mostly applied for specific purposes.
    • Reliable source of authentication:Since Aadhaar allows for biometric authentication, Aadhaar based authentication and verification is considered more reliable, quicker and cost efficient when compared to other IDs.

    Issues with mandatory linking: Puttaswamy judgment highlights

    • Puttaswamy judgment:The above reasons do not suffice the mandating of Aadhaar except in limited circumstances as per the Puttaswamy judgment.
    • Indispensability of the purpose:It needs to be considered whether such mandatory linkage of Aadhaar with Voter ID would pass the test of being “necessary and proportionate” to the purpose of de-duplication which is sought to be achieved.
    • Constitutional ambiguity:In Puttaswamy, one of the questions that the Supreme Court explored was whether the mandatory linking of Aadhaar with bank accounts was constitutional or not.
    • Against informational autonomy: It is the right to privacy which would allow a person to decide which official document they want to use for verification and authentication.
    • Disenfranchisement: Some fear that linking Aadhaar with Voter IDs may exclude certain groups of people, such as those who do not have an Aadhaar card.

    Other judicial observations: Lal Babu Hussein (1995) Case

    • The Supreme Court had held that the Right to vote cannot be disallowed by insisting only on four proofs of identity.
    • The voters are entitled to rely on any other proof of identity and obtain the right to vote.

    What are the operational difficulties?

    • Aadhaar is not a citizenship proof:The preference to Aadhaar for the purposes of determining voters is puzzling as Aadhaar is only a proof of residence and not a proof of citizenship.
    • Excluding non-citizens is not easy:Verifying voter identity against this will only help in tackling duplication but will not remove voters who are not citizens of India from the electoral rolls.
    • Estimate of error rates in biometric based authentication:This certainly differs. As per the UIDAI in 2018, Aadhaar based biometric authentication had a 12% error rate.
    • Disenfranchisement of existing voters:Errors have led to the disenfranchisement of around 30 lakh voters in AP and Telangana before the Supreme Court stalled the process of linkage.

    Key concern: Right to Privacy

    • Some civil societies has highlighted that linking of the two databases of electoral rolls and Aadhaar could lead to the linkage of Aadhaar’s “demographic” information with voter ID information.
    • This could lead to violation of the right to privacy and surveillance measures by the state.
    • This would leave the EC with the option of verifying its information only through door-to-door checks.
    • There is a lack of enforceable data protection principlesthat regulate how authentication data will be used.

    Way forward

    • The govt should expedite the enactment of a data protection legislation that allays concerns of unauthorized processing of personal data held by the government.

     

  • 60% of India’s voters linked Aadhaar to voter ID: RTI

    aadhaar

    Central idea: An RTI query has revealed that around 60% of Indian voters have linked their Aadhaar cards with their voter ID cards.

    Benefits of Aadhaar linking

    • Voter uniqueness: The move to link Aadhaar and voter ID cards was introduced to prevent electoral fraud and ensure unique identity of each voter.
    • Curb bogus votes: It is expected to help prevent multiple voting, impersonation, and bogus voting, which have been a concern in the past.
    • Facilitate migrant voting: There have been migrant workers who may have been registered more than once on the electoral rolls in different constituencies or for persons registered multiple times within the same constituency.

    Is the linking of Aadhaar with one’s Voter ID mandatory?

    • In December 2021, Parliament passed the Election Laws (Amendment) Act, 2021 .
    • It states that the electoral registration officer may require voters to furnish their Aadhaar numbers to verify Authencity of voters list.
    • This was to amend the Representation of the People Act, 1950 and Section 23(4) was inserted in the RP Act.

    Why was such linking proposed?

    The preference to use Aadhaar for verification and authentication, both by the state and private sector, stems from few reasons:

    • Increase in UID-holders: First, at the end of 2021, 99.7% of the adult Indian population had an Aadhaar card.
    • Most versatile document: This coverage exceeds that of any other officially valid document such as driver’s licence, ration cards, PAN cards etc. that are mostly applied for specific purposes.
    • Reliable source of authentication: Since Aadhaar allows for biometric authentication, Aadhaar based authentication and verification is considered more reliable, quicker and cost efficient when compared to other IDs.

    Issues with mandatory linking: Puttaswamy judgment highlights

    • Puttaswamy judgment: The above reasons do not suffice the mandating of Aadhaar except in limited circumstances as per the Puttaswamy judgment.
    • The indispensability of the purpose: It needs to be considered whether such mandatory linkage of Aadhaar with Voter ID would pass the test of being “necessary and proportionate” to the purpose of de-duplication which is sought to be achieved.
    • Constitutional ambiguity: In Puttaswamy, one of the questions that the Supreme Court explored was whether the mandatory linking of Aadhaar with bank accounts was constitutional or not.
    • Against informational autonomy: It is the right to privacy which would allow a person to decide which official document they want to use for verification and authentication.

    Other judicial observations: Lal Babu Hussein (1995) Case

    • The Supreme Court had held that the Right to vote cannot be disallowed by insisting only on four proofs of identity.
    • The voters are entitled to rely on any other proof of identity and obtain the right to vote.

    What are the operational difficulties?

    • Aadhaar is not a citizenship proof: The preference to Aadhaar for the purposes of determining voters is puzzling as Aadhaar is only a proof of residence and not a proof of citizenship.
    • Excluding non-citizens is not easy: Verifying voter identity against this will only help in tackling duplication but will not remove voters who are not citizens of India from the electoral rolls.
    • Estimate of error rates in biometric based authentication: This certainly differs. As per the UIDAI in 2018, Aadhaar based biometric authentication had a 12% error rate.
    • Disenfranchisement of existing voters: Errors have led to the disenfranchisement of around 30 lakh voters in AP and Telangana before the Supreme Court stalled the process of linkage.

    Key concern: Right to Privacy

    • Some civil societies has highlighted that linking of the two databases of electoral rolls and Aadhaar could lead to the linkage of Aadhaar’s “demographic” information with voter ID information.
    • This could lead to violation of the right to privacy and surveillance measures by the state.
    • This would leave the EC with the option of verifying its information only through door-to-door checks.
    • There is a lack of enforceable data protection principles that regulate how authentication data will be used.

    Way Forward

    • Address privacy and security concerns: There should be strict measures in place to ensure the safety of personal information and prevent data breaches.
    • Provide alternative authentication: The government should provide alternative methods of identity verification. This will help ensure that no citizen is disenfranchised due to the lack of an Aadhaar card.
    • Regular monitoring and evaluation: The government should regularly monitor and evaluate the effectiveness of the linking of Aadhaar and voter ID cards in preventing electoral fraud.

     

     

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  • Corrupt Practices according to Representation of People Act, 1951

    Central idea: The article provides an overview of Sections 123 (2) and Section 123 (4) of the Representation of People’s Act, 1951. It highlights how the section makes it illegal for candidates who have been convicted of certain offenses to contest elections to Parliament and state legislatures.

    Recent context: Promise of Freebies

    • Recently, the Supreme Court directed to look into prayers for reconsidering its 2013 judgment in ‘S. Subramaniam Balaji vs. State of Tamil Nadu’ Case.
    • The court held that promises of freebies cannot be termed a corrupt practice. However, the matter is still yet to be decided.

    Illicit Practices under the RPA, 1951

    corrupt

    • Under the provisions of the Act, an elected representative can be disqualified if convicted of certain offences on grounds of-
    1. Corrupt practices
    2. Failing to declare election expenses
    3. Interests in government contracts or works

    What amounts to Corrupt Practices?

    • Section 123 of the Act defines ‘corrupt practices’: It includes bribery, undue influence, false information, and promotion or attempted promotion of “feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language” by a candidate for the furtherance of his prospects in the election.
    • Section 123 (2) deals with ‘undue influence’: It defines as “any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person, with the consent of the candidate or his election agent, with the free exercise of any electoral right.” This could also include threats of injury, social ostracism and expulsion from any caste or community.
    • Section 123 (4) extends ambit of “corrupt practices”: It covers the intentional publication of false statements which can prejudice the outcome of the candidate’s election.

    What practices has the court held as corrupt practices in the past?

    • Jamuna Prasad Mukhariya v. Lacchi Ram, 1995: The encroachment of religion into secular activities is strictly prohibited, the court stated while adding that the same is clear from Section 123(3). However, even as far back as 1955, the Apex Court in Jamuna Prasad Mukhariya Case upheld the constitutional validity of Section 123 (3).
    • SR Bommai v. Union of India, 1994: In this case, otherwise held secularism to be a part of the ‘basic structure’, the court said, “whatever the attitude of the State towards the religions, religious sects, and denominations, religion cannot be mixed with any secular activity of the State.”
    • Abhiram Singh v C.D. Commachen, 2017: In 2017, a seven-judge constitution bench of the apex court held that an election will be annulled if votes are sought in the name of a candidate’s religion, race, caste, community, or language, as per Section 123 (3) which prohibits the same.

     

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  • Disqualification of Sitting MP: The Conundrum

    Central Idea

    • The instance where the Kerala High Court, in January this year, suspended the verdict passed by the Kavaratti District and Sessions Court (in an attempt to murder case) in which the then sitting Member of Parliament (MP) of Lakshadweep was sentenced to 10 years in jail. The issue is on whether disqualification for conviction is final or whether it can be revoked. This issue can arise whenever a legislator is disqualified.

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    The background: Facts are as follows

    • The facts are as follows. Mr. Faizal The then sitting MP of Lakshadweep was convicted by the Kavaratti sessions court on January 11 for attempt to murder, and sentenced to 10 years imprisonment.
    • On January 13, the Lok Sabha announced that he was disqualified as an MP with effect from the date of conviction.
    • On January 18, the Election Commission of India (ECI) fixed February 27 as the date for by-election to that constituency, with the formal notification to be issued on January 31.
    • Faizal appealed to the Kerala High Court for a stay on his conviction and sentence, which the High Court suspended on January 25.
    • The High Court suspended Faizal Faizal’s conviction due to the cost of a parliamentary election and the disruption of developmental activities in Lakshadweep.
    • Faizal challenged the ECI’s announcement in the Supreme Court of India. On January 30, the ECI said it was deferring the election.

    The specific provisions

    • The provision for disqualification is given in Article 102 of the Constitution: It specifies that a person shall be disqualified for contesting elections and being a Member of Parliament under certain conditions. These include holding an office of profit, being of unsound mind or insolvent, or not being a citizen of India. It also authorises Parliament to make law determining conditions of disqualifications.
    • The Representation of the People Act (RPA), 1951: The RPA provides that a person will be disqualified if convicted and sentenced to imprisonment for two years or more. The person is disqualified for the period of imprisonment and a further six years.
    • Exception for the sitting members: There is an exception for sitting members; they have been provided a period of three months from the date of conviction to appeal; the disqualification will not be applicable until the appeal is decided.

    A case of differential treatment of candidates

    • Challenges under Article 14 of the constitution: The differential treatment of candidates for elections and sitting members was challenged under Article 14 (right to equality).
    • Prabhakaran vs P. Jayarajan: A Constitution Bench of the Supreme Court, in 2005 (K. Prabhakaran vs P. Jayarajan), decided that the consequences of disqualifying a contestant and a sitting member were different.
    • Reasoning behind treating differently: The strength of the party in the legislature would change, and could have an adverse impact if a government had a thin majority. It would also trigger a by-election. Therefore, it was reasonable to treat the two categories differently.
    • Lily Thomas vs Union of India: In 2013, a two-judge Bench of the Supreme Court again considered whether this exception was constitutionally invalid (Lily Thomas vs Union of India). It stated that Article 102 empowers Parliament to make law regarding disqualification of a person for being chosen as, and for being, a member of either House of Parliament.
    • Exception for sitting members was unconstitutional: The judgment stated that making an exception for sitting members was against the constitution. As per Article 101, if a Member of Parliament is disqualified under Article 102, their seat will become vacant immediately. This means that if the conditions outlined in Article 102 are met, the disqualification will take effect automatically and immediately.

    What is the confusion?

    • In Navjot Singh Sidhu case, Supreme Court stayed his conviction: Navjot Singh Sidhu, an MP, was convicted and sentenced to three years imprisonment. He resigned from his seat but wanted to contest the election and appealed for a stay on his conviction. In 2007, the Supreme Court stayed his conviction, which removed the disqualification until the appeal was decided, allowing him to contest the election.
    • Question arises In Kerala case: The Lakshadweep seat was declared vacant, but the Election Commission of India (ECI) announced deferring the by-election after a stay order was granted. The Lok Sabha has kept the seat vacant and has not reinstated the MP. The question is whether the disqualification can be backdated, as if it never happened, and the election avoided. Or, whether the disqualification is removed only from the date of the stay order, and the vacated seat can be filled only through a by-election.
    • Conundrum and Implications: The conundrum arises because the Lily Thomas judgment requires the seat to be vacated immediately upon disqualification, whereas the Kerala High Court stay aims to keep the MP in the seat until the appeal is decided. The answer to this issue will have implications for similar cases in the future.

    Conclusion

    • As India continues to strengthen its democratic system, one important issue that needs resolution is determining the correct answer for when a disqualification is removed for a sitting member of parliament who has been granted a stay on their conviction. The conflicting court judgments and constitutional provisions only highlight the need for a clear and definitive resolution to this issue, which will undoubtedly enhance the credibility and legitimacy of the Indian political system.

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