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Subject: Fundamental Rights,DPSP

1. History + Evolution
2. Features
3. Amendments
4. Basic Structure

  • The legal issues surrounding Arvind Kejriwal’s arrest | Explained

    Why in the news? 

    A Delhi Court on Thursday extended the Enforcement Directorate’s (ED) custody of Delhi Chief Minister Arvind Kejriwal till April 1 in the money laundering case

    Context

    Mr Kejriwal was arrested on March 21, hours after his plea for interim protection from arrest was rejected by the Delhi High Court. This is the first instance of a Chief Minister in India being put behind bars while still in office.

    ED’s allegations against the Chief Minister

    • Influence on Elections: The ED contends that Money  received by AAP leaders from operators of alcohol businesses were used to influence the 2022 Assembly elections in Punjab and Goa.
    • Favours to South Group: The excise policy was allegedly drafted with the intention of granting favors to the South Group

     Legal issues  

    • Potential Involvement of AAP: If Kejriwal’s vicarious liability (This principle holds a person responsible for the actions of others, based on the concept of agency) is established, AAP could be impleaded as an accused in the case. This could lead to the attachment or confiscation of the party’s assets under the provisions of the Prevention of Money Laundering Act, 2002 (PMLA).
    • Application of Section 70 of the PMLA: This section is often invoked to investigate companies involved in money laundering offenses. It holds individuals responsible if they were in charge or responsible for the company at the time of the offense. However, individuals may not be prosecuted if they can prove lack of knowledge or due diligence to prevent the offense.
    • Definition of “Company”: Explanation 1 of Section 70 of the PMLA defines “company” broadly to include any body corporate, firm, or association of individuals. This could potentially encompass a political party under the definition, as per the Representation of the People Act, 1951.

    What is (PML) Prevention of Money-Laundering Act, 2002 Act? 

    An Act to prevent money-laundering and to provide for confiscation of property derived from, or involved in, money-laundering and for matters connected therewith or incidental thereto.

     Reliance on approver’s testimony

    • Definition of an Approver testimony: An approver is someone who has been charged with a crime but later confesses and agrees to testify for the prosecution.
    • Potential Consequences of False Deposition: An approver who provides false testimony can be retried for the offense for which the pardon was granted, according to Section 308 of the CrPC. This provision acts as a deterrent against perjury by the approver.
    • Caution in Reliance: Courts exercise caution when relying on the testimony of an approver due to its inherently suspect nature. The testimony of an accomplice is considered tainted, and courts are wary of potential biases or falsehoods.
    • Corroboration Requirement: To ensure the reliability of the approver’s testimony, corroboration from independent evidence is typically required.
    • Judicial Precedents: The Supreme Court, in cases like Mrinal Das and Ors. v. State of Tripura (2011), has emphasized the importance of corroborative evidence in convicting the accused based on the testimony of an approver.
    • Judicial Scrutiny: Courts meticulously scrutinize the testimony of an approver and assess its credibility in light of corroborative evidence and other factors.

    Conclusion 

    Arvind Kejriwal’s arrest in a money laundering case raises legal complexities, including potential involvement of AAP, application of PMLA, and reliance on approver’s testimony, necessitating cautious judicial scrutiny.

    Mains PYQ 

    Q Money laundering poses a serious security threat to a country’s economic sovereignty. What is its significance for India and what steps are required to be taken to control this menace? (UPSC IAS/2013) 

  • [30 March 2024] The Hindu Op-ed: Bonds, big money, and an imperfect democracy

    [30 March 2024] The Hindu Op-ed: Bonds, big money, and an imperfect democracy

    PYQ Relevance:Mains: 

    Q) ‘Simultaneous election to the Lok Sabha and the State Assemblies will limit the amount of time and money spent in electioneering but it will reduce the government’s accountability to the people’ Discuss. (UPSC CSE 2017) 

    Q) In light of the recent controversy regarding the use of Electronic Voting Machines (EVM), what are the challenges before the Election Commission of India to ensure the trustworthiness of elections in India?  (UPSC CSE 2018) 

    Prelims:

    Q) Under the Constitution of India, which one of the following is not a fundamental duty? (UPSC CSE 2011) 

    a) To vote in public elections
    b) To develop the scientific temper
    c) To safeguard public property
    d) To abide by the Constitution and respect its ideals

    Note4Students: 

    Prelims: Polity; Elections;  Electoral Bonds Scheme;

    Mains: Polity; Elections; Judicial Interventions;  Electoral Bonds Scheme;

    Mentors Comment: Representative democracy is a political system in which citizens of a country vote for representatives to handle legislation on their behalf. But perhaps India too is in some doubtful situation when the debate revolves around the Election 2024 or our version of present democracy. Recently, we have been through various news discussions on the Electoral Bonds Scheme which was introduced to cut down illegal funds in Party Politics, and its Campaigning pillared on black money. However, beyond curbing the wrong actions, the Electoral Bond Scheme also has another side which is a threat to our Democratic principles. Today’s Editorial also works on the same topic.

    Let’s learn. 

    —

    Why in the News?

    The Recent Judgement passed by our Supreme Court on the Electoral Bonds Scheme needs to be revisited in the Political domain too. 

    • If this picture is seen from a broader perspective, in a well-functioning democracy, fighting an election would need neither extravagant funding nor Electoral Bonds to be bought in secrecy.

    Context:

    • Elections continue to be fought with an increasingly larger amount of illegal funds being spent by political parties and candidates.
    • According to the SC the Electoral Bonds Scheme violates the Right to Information and Freedom of Speech and Expression under Article 19(1)(a) of the Constitution. It can lead to quid pro quo. The court ruled that the amendment to the Companies Act which allows blanket corporate political funding is unconstitutional.
    • This was supposed to end the financing of elections with black money. If this had happened, Indian politics would have been transformed with great benefit to the nation. After all, illegal finance results in the control of politics subverting our Democracy. 

    The gaps between the professed and the actual scenario of Indian politics:

    • Faraway from Democratic values: Elected leaders, usually serve the interests of those who finance their elections, and hardly represent the interests of their constituency. This gap between the professed and the actual undermines democracy since the government is no longer an entity ‘of the people, by the people, and for the people’. 
    • Vested interests as national interests: The vested interests corner most of the gains from development. It is in the design of the policies the packaging is cleverly done to make policies appear to be in the national interest. 
    • Widening of the Rich-poor Gap: Concessions are granted to private businesses to provide basic services like Health and Education through the market which results in the inability of the poor to afford them while simultaneously leading to growing disparities. This also reduces the availability of resources to the public sector.

    The Challenge of Money and the Election:

    • Representation issue: Voting is often not based on a candidate’s performance but on attributes such as caste, community, and region. Hence, political parties slice and dice the electorate along these lines. Vote banks are cultivated and the constituents are bribed just before an election.
    • Campaigning through illegal funds: Campaigning is conducted by paid workers and crowds are mobilized to attend rallies and meetings using money, transportation, and food. All this requires a lot of money far more than the permitted election expenditure limit of ₹95 lakh for a big parliamentary constituency. 
    • An issue with the Electoral Bonds Scheme: It enabled a bribe to be given in white for favors done. Since, only big businesses could contribute for big sums, their influence and manipulations were increased.
      • Secondly, the party obtaining funds could use them for all kinds of purposes and not necessarily for elections, such as setting up offices or destabilizing Opposition-led governments. Thus, the name electoral bonds was inappropriate.
    • Cronyism uncovered: The data show that funds were given to political parties for favors from policymakers; to escape prosecution for wrongdoing, and as an investment for the future. The data provided by the State Bank of India shows the quid pro quo in the case of some of the donations made. 

    Way Forward:

    • Need for a level-playing field: The political parties should not discriminate based on their vote share popularity or religion. This will enable the smaller and regional parties to compete with the ruling party and the major opposition parties on an equal footing and offer a genuine choice to the voters.
    • Need to reduce Money Influence: There is a need to curb the influence of money and corporate power in politics. The donors should no longer be able to hide their identity and agenda behind the veil of anonymity.

    Conclusion: The Electoral Bonds Scheme only highlights the growing weakness of Indian democracy. In a well-functioning democracy, where the political leadership is accountable, fighting an election would need neither big funding nor electoral bonds to be bought in secrecy. 

    https://www.thehindu.com/opinion/lead/bonds-big-money-and-an-imperfect-democracy/article68006688.ece

  • Advisory boards under preventive detention laws are not rubber stamps for the government: Supreme Court

    Why in the news? 

    Recently  SCt said that advisory boards should act like a safety net, protecting people’s freedom from the government’s arbitrary use of power. 

    • They need to make sure there’s a balance between the government’s actions and people’s right to be free.

    About Advisory Board:

    • Article 22 of the Constitution makes it mandatory for preventive detention laws to form advisory boards consisting of persons qualified to be High Court judges.
    • Objective: It must consider whether the detention is necessary not just in the eyes of the detaining authority but also in the eyes of the law.
    • Case Background: The judgment came in an appeal filed by a man ordered by the Telangana police to be detained as a ‘goonda’ under the Telangana Prevention of Dangerous Activities Act, 1986.
    • The claim by Telangana police: The man was a threat to “public order”. He was a cause of panic and fear among women. The appellant was accused of making a habit of snatching the ‘mangalsutras’ of his victims in broad daylight.

    SC on the Appeal filed under the Telangana Prevention of Dangerous Activities Act, 1986:

    • Qualifications of Advisory Board Members: Justice Pardiwala emphasized that having qualified individuals, potentially fit to become High Court judges, on advisory boards was crucial. This ensures robust scrutiny of government detention orders.
    • Responsibilities of Advisory Boards: These boards, mandated by various laws, are required to review detention orders every three months. 
    • Substantial Evidence to justify detention: Justice Pardiwala highlighted the unfairness of depriving someone of their Personal Liberty based merely on the assumption that they might commit a crime in the future. He stressed the importance of substantial evidence to justify detention.
    • Absence of Evidence of Threat to Public Order: The Supreme Court observed that the state failed to provide sufficient material indicating that the detained individual posed a genuine threat to public order. Specifically, there was no substantial evidence linking him to activities that could disrupt public order.

    The distinction between ‘Public order’ and ‘Law and Order’, and the Preventive Detention 

    • Differentiating ‘Public Order’ and ‘Law and Order’: Justice Pardiwala highlighted the distinction between ‘law and order’ issues, which affect only a few individuals, and ‘public order’ concerns, which have a broader impact on the community or even the entire country.
    • Limitations on Preventive Detention: The SC emphasized that preventive detention should only be utilized in exceptional circumstances.  
    • Quashing of Detention Order: Justice Pardiwala ordered the quashing of the detention order against the appellant based on the absence of his direct involvement in any of the First Information Reports (FIRs).  

    Conclusion: The Supreme Court emphasizes advisory boards in preventive detention laws aren’t mere rubber stamps for the government but safeguards for personal liberty. They must ensure the necessity of detention, backed by substantial evidence, and limit preventive detention to exceptional circumstances.

    Mains question for practice

    Q Discuss the recent Supreme Court ruling emphasizing the role of advisory boards in preventive detention laws ( 150 words ) 

  • It is time for Comprehensive Reforms to Municipal Elections 

    Why in the news?

    Recently, the SC’s judgment on the Chandigarh Mayoral election gives us a good occasion to think more broadly about elections in municipalities.

    Context:

    • Elections to the Lok Sabha and State Assemblies are exemplary democratic processes known for their punctuality, well-organized procedures, and seamless transitions of power.
    • However, when it comes to elections for grassroots governments like panchayats and municipalities, the scenario is entirely different.

    Reports from Janaagraha’s Annual Survey of India’s City-Systems 2023:

    • According to the study, over 1,400 municipalities in India did not have elected councils in place as of September 2021. This indicates a significant and widespread issue across the country.
    • Delayed elections can have serious implications for local governance and democracy. It can lead to a lack of representation for citizens, hindering their ability to participate in decision-making processes that directly affect their communities.
    • Timely elections are crucial for ensuring effective and accountable municipal governance.

    Judicial stand: 

    The delay in holding municipal elections is stated to violate the Constitution of India.  As highlighted in the ‘Suresh Mahajan’ judgment by the Supreme Court of India, the constitution unequivocally states that elections to municipalities should not be delayed under any circumstances, emphasizing the obligation of state governments and State Election Commissions to ensure the timely election of local bodies.

    CAG’s performance audit report on unelected Urban Local government councils:

    • On delayed Elections: The CAG audit reports of 17 states highlight that over 1,500 municipalities did not have elected councils in place during the audit period of 2015-2021. This indicates a widespread problem across states in conducting timely municipal elections as mandated by the 74th CAA.
    • On Council Formation: Even in cases where elections were held, there were delays in constituting councils and electing mayors, deputy mayors, and standing committees. In Karnataka, there was a significant delay of 12-24 months in forming elected councils across 11 city corporations.
    • On Long Delays in Council Formation: In Karnataka, reports indicate a 26-month delay in forming councils and electing chairpersons and standing committees for the first 2.5-year term, following the announcement of election results in September 2018.
      • Moreover, after the expiry of the first term in May 2023, some urban local governments did not hold elections for chairpersons and standing committees for more than eight months.
    • On Regional Disparities: The report highlights regional differences in the extent of delays, with Chandigarh experiencing a relatively shorter delay of 12 days compared to other regions.
    • On Data Accessibility Issues: The report mentions difficulties in accessing summary data on the making of councils and the election of mayors, deputy mayors, and standing committees, indicating potential challenges in transparency and accountability in the electoral process.

     

    What are the challenges to Municipal elections?

    • Enforcement for Timely Elections: The first challenge identified is the need for determined enforcement to ensure timely elections for urban local governments. Article 243U of the 74th Constitution Amendment Act specifies that the duration of urban local governments is five years, and elections should be completed before the expiry of this duration.
    • Non-Compliance by State Governments: Despite the Supreme Court’s clear stance regarding timely elections, state governments are non-compliant.
    • Discretion of Government Officials: One aspect of the challenge involves the discretion of government officials in scheduling elections on time. There is a concern that officials may have the discretion to delay elections, which could undermine the democratic process.
    • Possibility of Undue Influence: There is a concern about the possibility of state governments exerting undue influence on officials to delay elections for various reasons, which could compromise the fairness and integrity of the electoral process.
    • Issue with Manual Ballot Paper-Based Process: The use of a manual ballot paper-based process for elections is also mentioned as a challenge. Such a process may be prone to errors and manipulation, highlighting the need for modernization and digitization of the electoral process.
    • Issues with Short Terms: The terms being less than five years exacerbate the challenge of conducting frequent elections. This is particularly relevant as 17% of cities in India, including five of the eight largest ones, have mayoral terms of less than five years.

    Suggestive measures:

    • Empowering SECs: To deal with the challenges effectively, SECs need to play a more significant role in overseeing the electoral process. Articles 243K and 243ZA of the Constitution mandate that SECs have the superintendence, direction, and control over the preparation of electoral rolls and the conduct of elections to panchayats and urban local governments.
    • Empowerment for Ward Delimitation: Only 11 out of 35 states and union territories have empowered SECs to conduct ward delimitation. Ward delimitation is crucial for ensuring fair and equitable representation in municipal elections. SECs should be granted greater authority, including the power to conduct ward delimitation
    • SECc Vs. ECI: The courts have emphasized that SECs enjoy the same status as the Election Commission of India in the domain of elections to panchayats and urban local governments under Part IX and Part IXA of the Constitution. This underscores the significance of SECs and their authority in ensuring free, fair, and transparent elections at the local level.
    • Role in Electoral Oversight: SECs should actively oversee the electoral process, including the preparation of electoral rolls, conduct of elections, and enforcement of election laws. This proactive role is essential for maintaining the integrity and credibility of municipal elections.

    Conclusion: Comprehensive reforms are needed for Municipal Elections in India, addressing delays, enforcing constitutional mandates, empowering State Election Commissions, and modernizing electoral processes to ensure transparency, fairness, and accountability.

  • Charting women’s trajectory in parliaments globally

    Why in the news? 

    The year 2024 is being hailed as the biggest year for democracy, with 45% of the global population preparing to exercise their voting rights or having already cast their ballots

    Context:

    • Women’s representation in political spheres improved in the latter half of the 20th century, with significant progress made in many nations in securing voting rights and parliamentary seats, and in climbing to the highest political offices.
    • Despite substantial gains, women continue to constitute a minority in most parliamentary bodies and are rarely seen in top political leadership positions.

    Major two observations in recent times:

    1) The share of countries with universal Right to Vote: Initially, there was a significant gap between men and women regarding political participation, with men gaining voting rights while women were excluded in many nations.

    • New Zealand’s Role: New Zealand stands out as a pioneer in breaking this pattern by granting universal suffrage to women in 1893, thus allowing them to vote alongside men.
    • Widening Gap: Despite women gaining suffrage in more countries, the gap between male and female political participation widened in the early 20th century. Men’s voting rights continued to expand while women remained excluded in many places.
    • World War II: By the onset of World War II, men had voting rights in a higher proportion of countries compared to women. The disparity was stark, with men having voting rights in one out of three countries, while women had them in only one out of six countries.
    • Rapid Closure of the Gap: The gap between male and female political participation rapidly closed after the discrimination against women in voting rights ended in many countries. Both men and women gained the right to vote in many nations, leading to greater equality in political participation.

    2) Gender gap in the Chief-executive roles: “Chief-executive” refers to the head of state or head of government, depending on who holds more power within the political system. While women’s representation in parliament is crucial, it’s equally important for women to hold the highest political office in a country.

    • Gender Disparity in Political Chief Executives: Data from the V-Dem project indicates a significant gender gap in political chief executives. At any given time, the vast majority of political chief executives have been men.
    • Limited Increase in Female Leadership: Over the last three decades, there has been a slight increase in the proportion of countries led by women. However, the overall share of countries where women occupy the post of chief executive remains low, accounting for less than 10%.
    • Persistent Gender Disparity: Despite some progress, the data underscores the persistent gender disparity in holding the highest political office globally. Women continue to be underrepresented in top political leadership positions.

    Global Scenario for women’s share as a Parliamentarian:

    • Absence of Women in National Parliaments: In the early 20th century, women were largely absent from national parliaments across the globe.
      • Norway marked a significant milestone in 1907 when women first entered parliament. Nearly 10% of the parliamentary seats were occupied by women, indicating progress in political representation.
    • Surge in Women Entering Parliament: The latter half of the 20th century witnessed a notable increase in the number of women entering parliaments worldwide.
      • This trend of increasing female representation in parliaments accelerated notably in the late 20th and early 21st centuries.
    • Rwanda’s Remarkable Achievement: Rwanda stands out as a remarkable example, with its parliamentary composition surpassing the 50% mark for women’s representation in 2008. This achievement set a notable precedent for gender equality in political representation.
    • Other Countries’ Progress: In 2008, several other countries, including Argentina, Cuba, Finland, and Sweden, had significant proportions of women parliamentarians, ranging between 40% and 50%. This indicates a global trend toward greater gender parity in political representation.

    Recent Trend since 2022:

     

    • Low Representation in Many Countries: Despite advancements, women’s political representation remains constrained and inconsistent globally. Women constitute approximately half of the population but are significantly underrepresented in parliaments worldwide.
    • Persistent Gender Gap: Only a few countries have achieved gender parity in political representation, where women make up about half of all representatives. In the majority of countries, the share of women in parliament remains low. As of 2022, in nearly 60 countries, women’s representation in parliament was 20% or less.
    • Extreme Cases: In three countries, no women are represented in parliament, indicating extreme gender disparities in political participation and representation.

    Suggestive Measures to improve Women’s representation in Parliament:

    • Implement Quotas for Female Representation: Setting quotas for the number of women parliamentarians has proven effective in increasing female representation. Countries with quotas have significantly higher percentages of women in parliament compared to those without quotas
    • End Violence Against Women in Politics: Gender-based violence, including physical, sexual, and psychological violence, is a significant barrier for women in politics. Establishing measures to combat violence, harassment, and hate speech is crucial to creating a safer environment for women parliamentarians
    • Increase Women’s Participation in Media: Addressing gender stereotypes perpetuated by the media is essential. Media coverage often focuses on irrelevant aspects of women politicians’ lives, reinforcing stereotypes. Educating journalists and monitoring media coverage can help combat gender bias and promote a more balanced portrayal of women in politics
    • Expand Participation through Women’s Caucuses: Women’s parliamentary caucuses provide a platform for women to amplify their voices and influence in parliament. Supporting these caucuses with resources, leadership, and organizational backing can empower women to promote legal reforms and advocate for gender equality in politics

    Significant steps taken to improve women’s participation in parliament

    • Gender Quota Legislation: India has approved a landmark bill reserving 33% of seats in parliament for women. This quota is expected to lead to the promotion of women-friendly policies related to health, education, and jobs.  
    • Political Will and Proactive Measures: Despite challenges and slow progress, there is a growing recognition of the importance of women’s representation in Indian politics. Some political parties are taking proactive measures to nominate more women for assembly and parliament elections. However, there is a need for greater political will to address gender disparities and ensure a more inclusive political landscape
    • Empowerment through Representation: Increasing women’s representation in political parties and building a pipeline of female leaders are crucial steps to enhance women’s political participation.

    Conclusion: Despite strides, global women’s political representation remains low. Quotas, combatting violence, media reform, and supporting women’s caucuses are vital to enhancing female participation in parliaments and fostering inclusive democracy.

    Practice questions for the Mains

    Q) Discuss the trajectory of women’s representation in global parliaments, highlighting persistent gender disparities and measures to enhance female participation. (250 words)

     

  • Kerala to challenge withholding of Presidential Assent for its Bills

    Why in the news? 

    The unusual move of the Kerala Government will open doors for a Constitutional debate on the scope of a Judicial Review of the decisions of the President of India.

    Context-

    • The President had withheld assent to Kerala University Laws (Amendment No. 2) Bill 2022, University Law Amendment Bill, 2022, and the University Law Amendment Bill, 2021 from the seven Bills that were referred to her in November 2023.

    Key issues as per this situation- 

    • Legal Challenge by Kerala: Kerala plans to challenge the legality of President Droupadi Murmu withholding her assent for certain Bills passed by the Kerala Legislature.
    • Scope of Judicial Review: Kerala’s move will open doors for a Constitutional debate on the scope of judicial review of the decisions of the President of India. The state argues that the legality of the President’s decisions and the factors influencing them can be judicially reviewed.

    The power of the President to withhold assent to a state bill is derived from the Constitution of India:

    • Constitutional Authority: The power of the President to withhold assent to a state bill is outlined in Article 201 of the Constitution of India.
    • Procedure: According to Article 200, when a bill is passed by the state legislature, it is presented to the Governor for assent. The Governor then forwards the bill to the President for consideration.
    • Discretionary Power: The President has discretionary authority to either give assent to the bill or withhold it. This means the President can refuse to approve the bill if deemed necessary.
    • Reasons for Withholding Assent: The President may choose to withhold assent for various reasons, such as if the bill violates constitutional provisions, conflicts with central legislation, or is against public interest.
    • Constitutional Morality: The President’s decision to withhold assent should be guided by constitutional principles and morality. This ensures that the exercise of this power is in line with the spirit of the Constitution.

    What are the Implications of the President withholding assent to a state bill?

    • Legislative Stalemate: Withholding assent to a state bill effectively prevents it from becoming law. This can lead to a legislative stalemate, especially if the bill is crucial for the functioning of the state government or addresses pressing issues.
    • Impact on State Governance: The inability to enact a state bill due to the President’s refusal to give assent can hinder the governance and administration of the state. It may delay or impede the implementation of policies and measures intended to address local challenges or meet the needs of the state’s residents.
    • Constitutional Conflict: The withholding of assent by the President may lead to constitutional conflicts between the state government and the Union government. It raises questions about the division of powers between the Centre and the states and the extent of the President’s authority to state legislation.
    • Political Implications: The President’s decision to withhold assent to a state bill can have political repercussions. It may strain the relationship between the state government and the central government, especially if there are underlying political tensions or differences in ideology.
    • Legal Challenges: The state government may choose to challenge the President’s decision to withhold assent through legal means. This could involve seeking judicial review to determine the legality and constitutionality of the President’s action, especially if it is perceived as arbitrary or mala fide.

  • Governor stalls Ponmudy’s return to Cabinet

    Why in the news? 

    TN Governor R.N. Ravi has declined to re-induct senior DMK leader and former Higher Education Minister K. Ponmudy into the Cabinet, citing concerns about Constitutional Morality.

    Context-

    • Despite the SC’s suspension of Ponmudy’s conviction, the Governor believes his involvement in serious corruption as a public servant renders his re-induction inappropriate.
    • The Governor’s stance emphasizes the need to uphold ethical standards in governance, especially regarding convicted individuals.

    What are the key questions raised concerning the re-induct of the MLA’s in the Cabinet:

    • Constitutional Morality: Governor R.N. Ravi is concerned about upholding constitutional morality. He questions whether it would be appropriate to re-induct K. Ponmudy into the Cabinet, considering the seriousness of the corruption charges against him and the fact that his conviction was not set aside by the Supreme Court, but only temporarily suspended.
    • Legal Validity: Governor Ravi seeks the opinion of legal experts on the legality of re-inducting Ponmudy into the Cabinet without the conviction being overturned by the Supreme Court. This raises the question of whether such an action would adhere to legal principles and norms.
    • Political Implications: The differing opinions between both raise questions about the political ramifications of the decision. While the Law Minister sees no issues in Ponmudy’s swearing-in, the Governor emphasizes the need for ethical governance.
    • Timing and Elections: The timing of Ponmudy’s potential re-induction, particularly concerning the announcement of Lok Sabha elections, adds complexity to the situation. It raises questions about whether political considerations are influencing the decision-making process.
    • Disqualification and Supreme Court Stay: Ponmudy’s disqualification as an MLA due to a conviction by the Madras High Court, followed by the Supreme Court’s stay on the conviction, raises questions about the legal status of his eligibility for public office and the implications for his potential re-induction into the Cabinet.

    Discretionary power of the Governor in the appointment of ministers- 

    • Outlined in Article 163: There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except insofar as he is by or under this Constitution required to exercise his functions or any of them in his discretion.

    In the context of the appointment of ministers, the Governor’s discretionary power may be exercised in various situations, such as:

    • Selection of Ministers: Although the Chief Minister typically recommends individuals for ministerial positions, the final decision regarding their appointment rests with the Governor. The Governor may exercise discretion in approving or rejecting the Chief Minister’s recommendations based on factors such as competence, integrity, and political considerations.
    • Dismissal of Ministers: In cases where the Governor has reasons to believe that a minister is unfit to hold office or has lost the confidence of the legislature, they may use their discretionary power to dismiss the minister, even if the Chief Minister advises otherwise.
    • Interests of the state: In exercising discretionary powers, the Governor must uphold constitutional morality and act in the best interests of the state. This includes considering the integrity, qualifications, and public trust in the individuals being appointed as ministers.
    • Consultation: While the Governor is not required to consult anyone other than the Chief Minister in the appointment of ministers, they may seek advice or input from legal experts, constitutional authorities, or other relevant stakeholders to ensure a fair and transparent appointment process.

    Conclusion:

    Governor stalls former minister’s return, citing constitutional morality and corruption concerns. His discretion underscores ethical governance and legal validity in ministerial appointments, raising questions about political implications and timing.

  • Citizenship Amendment Act: Legal issues and status of judicial proceedings

    Why in the news? 

    • The Ministry of Home Affairs notified the rules to implement the CAA, which fast-tracks citizenship for non-Muslim immigrants from neighbouring countries. Despite delays, the Act faces challenges in the Supreme Court.

    Context

    • Petitions challenge the CAA’s constitutionality, arguing it violates Article 14 by making religion a qualifier for citizenship.
    • Petitions seek a stay on the recently notified rules, criticizing the bypassing of tiered scrutiny for citizenship applications and the government’s decision to implement rules before a final court decision.

    About Citizenship Amendment Act 2019:

    • Origin- The citizenship laws in India find their roots in the constitution through Articles 5-11 and the Citizenship Act of 1955. This legislation outlines provisions for acquiring citizenship through birth, descent, registration, and naturalization.
    • Changes as per CAA 2019– It revised the Citizenship Act of 1955 to grant eligibility for Indian citizenship to illegal migrants who are Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians from Afghanistan, Bangladesh, and Pakistan.

    Citizenship Amendment Rules, 2024:

    Despite a delay of over four years, the Ministry of Home Affairs has officially issued the Citizenship Amendment Rules, 2024, facilitating the implementation of the Citizenship Amendment Act 2019.

    The key provisions include:

    • Application Process: Eligible refugees are required to submit applications accompanied by affidavits verifying statements, character references from Indian citizens, and a declaration of proficiency in a designated Indian language for citizenship.
    • E-Application to District-Level Committee: The rules stipulate that applications must be submitted electronically to a district-level committee for verification of documents and administration of the oath of allegiance. Failure to appear in person may result in rejection of the application by the empowered committee following review by the district committee.
    • Supporting Documentation: Applicants are mandated to provide supporting documents such as passports, birth certificates, identity papers, land records, or evidence of ancestry from Pakistan, Afghanistan, or Bangladesh to substantiate their citizenship claims.
    • Verification of Entry Date: Applicants must furnish evidence of entry before December 31, 2014, through one of the 20 specified documents, including FRRO registration, Census slips, government-issued IDs (such as Aadhaar, ration card, driver’s license), or marriage certificates issued in India.

     

    What are the implications of CAA?

    • Potential Impact on Muslims: The CAA, when combined with the proposed National Register of Indian Citizens (NRIC), has the potential to disproportionately affect Muslims residing in India. Non-Muslims may have an opportunity to obtain citizenship through the CAA, while Muslims may be denied this opportunity.
    • Exclusion from NRIC: In the event of people being excluded from the NRIC, non-Muslims may have a pathway to inclusion through the CAA, while Muslims may face barriers. The Supreme Court-monitored NRC exercise in Assam in 2021 left over 19 lakh people from the citizenship register, raising concerns about exclusion and discrimination.
    • Executive Order and Implementation: The Union government issued an order granting District Collectors in five states with high migrant populations the power to grant citizenship to groups identified in the CAA amendment. However, there were allegations that this order was a tactic to implement the CAA, which the government denied.
    • Relaxation of Citizenship Criteria: The newly notified rules under the CAA have eased the process of granting Indian citizenship to members of specified communities by excluding the requirement of a valid passport or visa. Instead, documents showing ancestry from designated countries are deemed sufficient.
    • Constitutional Challenges: The constitutionality of the CAA has been challenged in court, with petitions arguing that the law violates Article 14 of the Constitution by making religion a qualifier for citizenship.
    • Impact on Assam Accord: The CAA has been criticized as undermining the Assam Accord of 1985, which does not differentiate on grounds of religion and deems any person who cannot prove ancestry beyond March 24, 1971, as an alien. Petitions contend that the law may lead to an increase in the influx of illegal migrants from Bangladesh to Assam.

    How has the Supreme Court responded? (Judicial Stand)

    • December 2019: The Supreme Court, led by former Chief Justice of India (CJI) S.A. Bobde, refused to stay the operation of the CAA. Instead, the court suggested that the government should publicize the actual intent of the Act.
      • A similar plea for a stay was rejected by the court on January 22, 2020, with the court emphasizing the need to hear the government’s perspective first.
    • October 2022: A Bench led by former CJI U.U. Lalit ordered that final hearings in the case would commence on December 6, 2022.
      • However, since then, the case has not been listed. According to the Supreme Court’s website, the petitions are currently before a Bench headed by Justice Pankaj Mithal.

    What is the significance of the challenge to Section 6A?

    • Dependence on Assam Accord: Section 6A was introduced in furtherance of the Assam Accord, a Memorandum of Settlement signed in 1985 to resolve issues related to immigration in Assam.
      • Therefore, the challenge to Section 6A is intricately linked to the implementation and interpretation of the Assam Accord.
    • Legal Implications: The challenges against Section 6A of the Citizenship Act and the CAA raise significant legal questions regarding their constitutionality and compatibility with existing laws and agreements.
      • These legal challenges highlight the need for clarity and consistency in India’s citizenship laws.
    • Interpretation of Assam Accord: Section 6A of the Citizenship Act, introduced by the Assam Accord of 1985, establishes March 24, 1971, as the cut-off date for determining citizenship in Assam.
      • The challenges against this provision and the CAA raise questions about the interpretation and implementation of the Assam Accord, which aimed to resolve issues related to immigration in Assam.

     

    Why are petitioners seeking a stay on the rules?

    • Changes in Scrutiny Process: The rules have reportedly eliminated the tiered scrutiny process of applications for citizenship by District Collectors.
      • Previously, District Collectors scrutinized applications, and state governments provided recommendations on granting citizenship. The removal of this scrutiny process is a concern for the petitioners.
    • Timing of their implementation: The petitioners highlight that the government had previously avoided a push for a stay on the Citizenship Amendment Act (CAA) in the Supreme Court five years ago by arguing that the rules for implementation had not been framed.
      • Now, with the rules in place, the petitioners question the timing of their implementation.
    • Pending Decision from Supreme Court: The petitioners argue that the government should have awaited a final decision from the Supreme Court regarding the constitutionality of the CAA before implementing the rules.
      • They suggest that implementing the rules without a definitive ruling from the court could preempt its decision-making process.

    Conclusion:

    • Implementing the Citizenship Amendment Act and its accompanying rules faces legal challenges and societal implications.
    • Moving forward, ensuring fairness, inclusivity, and adherence to constitutional principles will be vital in resolving the complexities surrounding citizenship laws in India.

  • Appointment of EC | Supreme Court to hear plea to bring CJI back into the selection committee

    Why in the news? 

    The plea filed by the NGO Association for Democratic Reforms seeks an urgent hearing as it raises concerns about potential unfair advantage in filling Election Commission vacancies after Arun Goel’s resignation.

    Context

    • The unexpected resignation of Arun Goel ahead of the Lok Sabha elections raised concerns about potential unfair advantage in filling the vacancies.
    • The NGO Association for Democratic Reforms requested the new law on EC appointments to be put on hold and urged the involvement of the Chief Justice of India in the selection committee, as directed by a previous Supreme Court judgment.

     

    About the CEC and Other ECs (Appointment, Conditions of Service, and Term of Office) Bill, 2023:

    • The Bill replaces the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.
      • It addresses the appointment, salary, and removal of the CEC and ECs.

     

    Appointment Process:

    • The CEC and ECs will be appointed by the President upon the recommendation of a Selection Committee.
    • The Selection Committee will consist of the Prime Minister, a Union Cabinet Minister, and the Leader of Opposition/leader of the largest opposition party in Lok Sabha.
    • Recommendations of the Selection Committee will be valid even when there is a vacancy in this Committee.
    • A Search Committee headed by the Cabinet Secretary will propose a panel of names to the Selection Committee.
    • Eligibility for the posts includes holding (or having held) a post equivalent to the Secretary to the central government.

     

    Why Free and fair elections are necessary?

    • Protects from Intimidation and Fraud: Concerns were raised about the potential for unfair advantage due to the Executive’s ability to appoint two Election Commissioners, which could compromise the independence of the Election Commission.
    • Consensus building and Integrity: Emphasis on the critical role of the Election Commission in ensuring free and fair elections, highlights the importance of fair and unbiased appointments to maintain the integrity of the electoral process.
    • Anoop Baranwal Case: Reference to the Supreme Court’s judgment in the Anoop Baranwal case, where a Constitution Bench directed the appointment of the Chief Election Commissioner (CEC) and two ECs by the President based on the advice of a committee consisting of the Prime Minister, Leader of Opposition, and Chief Justice of India (CJI).
    • Government’s Response: Mention of the government’s enactment of the Chief Election Commission and other Election Commissions (Appointment, Conditions of Service and Term of Office) Act, 2023, which replaced the CJI with a Cabinet Minister on the selection committee, thereby giving the Centre more control over the appointment process, contrary to the Supreme Court’s judgment.

    Way Forward: Need to avoid Political interference: 

    • Current Leadership: Mention of CEC Rajiv Kumar being in sole charge of the Election Commission at present, indicates the need to address vacancies in the position of Election Commissioners to ensure effective functioning, especially with impending elections.
    • Independence of Election Commission: Emphasis on the importance of maintaining the independence of the Election Commission from political and executive interference to ensure free and fair elections and uphold democracy.
    • Insulation from Interference: Arguing that the Election Commission should be insulated from political and/or executive interference to preserve the integrity of the electoral process and protect democratic principles.
    • Critical Role of Election Commission: Highlighting the critical role of the Election Commission in various aspects such as ensuring free and fair elections, resolving disputes between political parties, and maintaining accurate voter lists and turnout, underscoring the urgency to address vacancies in the Commission.

    Conclusion:

    • The government should reconsider the appointment process, ensuring the inclusion of the Chief Justice of India in the selection committee to uphold the independence and integrity of the Election Commission.

    Mains PYQs

    Q. Discuss the role of the Election Commission of India in light of the evolution of the Model Code of Conduct. (2022)

  • President approves Uttarakhand’s UCC Bill

    In the news

    • Under Article 201 of the Indian Constitution, the President gave assent to the ‘Uniform Civil Code Uttarakhand 2024’ Bill passed by the Uttarakhand Legislative Assembly, on March 11 2024.

    What is the Uniform Civil Code?

    • The UCC is mentioned in Article 44 of the Constitution as part of the Directive Principles of State Policy, that the state should work to establish a uniform civil code for all citizens across India.
      • However, the Constitution’s framers left it to the government’s discretion to implement the UCC.
    • Goa is the only state in India with a UCC, following the Portuguese Civil Code of 1867.

    What are the SC Observations?

    • The Supreme Court has emphasized the importance of Governors promptly acting on Bills sent to them for assent after passage by Legislative Assemblies.
    • Bills should be returned “as soon as possible” to prevent undue delay, with significant constitutional intent behind this directive.

    Governor’s Power over State Bills

     

    [I] Article 200:

    • Article 200 delineates the process for State Legislative Assembly-passed Bills to be presented to the Governor for assent.
    • The Governor holds the authority to either assent, withhold assent, or reserve the Bill for consideration by the President.
    • Additionally, the Governor possesses the prerogative to return the Bill to the House or Houses with a message requesting reconsideration.

     

    [II] Article 201:

    • Article 201 stipulates the procedures concerning Bills reserved for the President’s consideration.
    • It allows the President to either assent to or withhold assent from the Bill.
    • If necessary, the President can direct the Governor to return the Bill to the State Legislature for reconsideration.

     

    Governor’s Discretion 

    The Governor holds several options upon receiving a Bill:

    • Granting Assent.
    • Requesting the Assembly to reconsider specific provisions or the entire Bill.
    • Obligatory reservation for the President’s consideration, especially in cases posing a threat to the state high court or contravening constitutional provisions, DPSP, national interest, or Article 31A regarding compulsory property acquisition.
    • Although within the Governor’s authority, withholding assent is seldom practiced due to its contentious nature.

    Committee Recommendations:

     

    (1) Sarkaria Commission (1987):

    • It recommended that Governors exercise discretion in reserving Bills for Presidential consideration only in rare cases of unconstitutionality.
    • Bills should otherwise be processed as per ministerial advice, with a maximum six-month period for Presidential disposition.

     

    (2) Punchhi Commission (2010):

    • It proposed a six-month timeframe for Governors to decide on Bills presented for assent, emphasizing timely decision-making.

    Try this PYQ from CSE Prelims 2016:

    Q.Consider the following statements:

    1. The Chief Secretary in a State is appointed by the Governor of that State.
    2. The Chief Secretary in a State has a fixed tenure.

    Which of the statements given above is/are correct?

    (a) 1 only

    (b) 2 only

    (c) Both 1 and 2

    (d) Neither 1 nor 2