Subject: Fundamental Rights,DPSP

Central Idea

• The Justice G. Rohini-headed Commission for the sub-categorisation of Other Backward Classes (OBC) caste groups on July 31 submitted its report on the issue to the Ministry of Social Justice and Empowerment.
• This is nearly 6 years after the Union government first assigned the task to it — a task that was initially meant to be finished in 12 weeks.

Who are the OBCs?

• The Other Backward Classes (OBCs) are a group of socially and educationally disadvantaged castes in India.
• They constitute a significant portion of the population and have been granted 27% reservation in jobs and education under the central government.
• To ensure equitable distribution of benefits among all OBC communities, the idea of sub-categorization within the OBCs was proposed.
• The Rohini Commission, established in 2017, was tasked with examining this issue.

Understanding Sub-Categorization

• Concept: Sub-categorization aims to create sub-groups within the larger OBC community for the purpose of reservation, addressing the issue of some affluent communities securing a major share of the reservation benefits.
• Legal Debate: The concept of sub-categorization has also been a subject of legal debate for other reservation categories, such as Scheduled Castes and Scheduled Tribes (SCs and STs).

Establishment of Rohini Commission

• Purpose: The Rohini Commission was constituted on October 2, 2017, to examine the extent of inequitable distribution of reservation benefits among different OBC castes or communities.
• Terms of Reference: Its primary terms of reference included evaluating the need for sub-categorization, working out a scientific approach for it, and identifying any discrepancies or errors in the Central List of OBCs.

Timeline and Progress

• Timeframe: Initially given 12 weeks to submit its report, the Commission has since been granted 10 extensions.
• Draft Report: The Commission was ready with a draft report on sub-categorization.
• Data Challenges: One of the challenges faced was the lack of data for the population of various OBC communities, making it difficult to compare their representation in jobs and admissions.
• Multiple Extensions: The Commission’s report was submitted on the last day of its functioning after it had received up to 14 extensions from the government in the last six years.
• Reason for Delays: At first, the government said that the COVID-19 pandemic had slowed down its working. However, after the second wave, the government has been saying that the Commission has been working on finalising its report.

Findings of the Commission

• Categorisation of Caste Groups: According to sources, the Commission has suggested breaking the caste groups into broad categories, with the dominant castes (with the most access to benefits) getting the smallest share of the 27% reservation, and the historically crowded-out caste groups getting the largest share of the reservation pie.
• Unequal Distribution: The Commission’s analysis of 1.3 lakh central jobs and OBC admissions to central higher education institutions over a few years revealed that 97% of all jobs and educational seats were concentrated among just 25% of sub-castes classified as OBCs.
• Dominant Communities: A significant portion of these opportunities (95%) went to only 10 OBC communities.
• Underrepresented Groups: Nearly 37% (983) of OBC communities had zero representation in jobs and educational institutions, while 994 OBC sub-castes had a total representation of only 2.68% in recruitment and admissions.

Implications and Future Steps

• Census Enumeration: The Commission proposed an all-India survey to estimate the caste-wise population of OBCs, but the government has been silent on this while OBC groups demand the enumeration of OBCs in the Census.
• Pending Decision: The report’s recommendations and findings will require careful deliberation by the government before any implementation.

Conclusion

• Now that the Commission’s report is with the Social Justice Ministry, the government is expected to hold deliberations on the recommendations contained in it, before thinking about implementing any part of it.
• The report has not been made public yet.

 

Central Idea

• A Parliamentary Standing Committee has recommended lowering the minimum age for contesting Lok Sabha and Assembly elections to 18 years, aligning it with the minimum age for voting in India.
• The Committee believes that young individuals can be responsible political participants, supported by global practices and increasing political consciousness among youth.

Current Minimum Age Requirements

• Lok Sabha and Assembly Polls: According to Article 84 of the Indian Constitution and Section 36 of the Representation of the People Act, 1951, a person must be at least 25 years old to contest elections to the Lok Sabha or State Legislative Assembly.
• Rajya Sabha and Legislative Council: As per Article 80(4) of the Constitution and Section 43 of the RP Act, 1951, a person must be at least 30 years old to become a member of the Rajya Sabha or the State Legislative Council.

Parliamentary Committee’s View

• Evidence from Global Practices: The Committee cited examples from countries like Canada, the United Kingdom, and Australia, where young individuals have proven to be reliable and responsible political participants.
• Youth Representation: It supported lowering the minimum age for candidacy, citing global practices and the increasing political consciousness among young people. It believes that young individuals are more than capable of running for office in the 21st century due to increased education, globalization, and digitalization.
• Age Disparity: The Committee expressed concern over the significant age gap between MPs and India’s median age, highlighting the need for greater youth representation.
• Diverse Viewpoints: The Committee contends that reducing the minimum age would bring fresh perspectives to policy debates and address the underrepresentation of young voices in the political arena.

Election Commission’s Perspective

• Unrealistic Expectations: The EC disagrees with the proposal, stating that expecting 18-year-olds to possess the necessary experience and maturity for parliamentary responsibilities is unrealistic.
• Current Age Requirements Appropriate: EC believes that the existing minimum age requirements for voting and contesting elections are appropriate.

Recommended Actions

• Delimitation Process: The Committee recommends that the EC collaborates with the legislative department to examine the effects of the delimitation process, especially in challenging terrains. Treating all regions in India as identical may pose risks, and tailored measures should be taken to address this reality.
• Common Electoral Rolls: The Committee highlights the benefits of Common Electoral Rolls for State and Lok Sabha polls, which can be created through the collaborative participation of officials serving in both the ECI and State ECs.

Conclusion

• The debate on lowering the minimum age for contesting elections continues, with the Parliamentary Standing Committee favouring this move, considering global practices and youth representation.
• Further discussions and careful consideration are needed to make an informed decision on this matter.

Central Idea

• The Supreme Court dismissed a petition filed by the Association for Democratic Reforms (ADR) challenging the appointment of an Election Commissioner.
• The court cited a previous Constitution Bench ruling that had already addressed the issue and decided not to quash the appointment.

About Election Commission of India (ECI)

• The ECI is a constitutional body was established by the Constitution of India to conduct and regulate elections in the country.
• Article 324 of the Constitution provides that the power of superintendence, direction, and control of elections.
• The body administers elections to the Lok Sabha, Rajya Sabha, State Legislative Assemblies, State Legislative Councils and the offices of the President and Vice President of the country.
• Thus, the Election Commission is an all-India body in the sense that it is common to both the Central government and the state governments.
• The Election Commission operates under the authority of Constitution per Article 324 and subsequently enacted Representation of the People Act 1951.

Composition of ECI

• The ECI was established in 1950 and originally only had one Chief Election Commissioner.
• Two additional Commissioners were appointed to the commission for the first time during the 1989 General Election, but they had a very short tenure, ending on 1 January 1990.
• The Election Commissioners are assisted by Deputy Election Commissioners, who are generally IAS officers.
• They are further assisted by Directors General, Principal Secretaries, and Secretaries and Under Secretaries.
• At the state level, Election Commission is assisted by the Chief Electoral Officer of the State, who is an IAS officer of Principal Secretary rank.
• At the district and constituency levels, the District Magistrates (in their capacity as District Election Officers), Electoral Registration Officers and Returning Officers perform election work.

Tenure

• The tenure of election commissioners is not prescribed by Indian Constitution.
• However, the Election Commission conduct of service Act, 1991 prescribes the term of service.
• Chief Election Commissioner or an Election Commissioner shall hold office for a term of six years, or up to the age of 65 years, whichever is earlier, from the date on which he/she assumes his/her office.

Removal from office

• The Chief Election Commissioner of India can be represented removed from their office in a manner similar to the removal of a judge of the Supreme Court of India.
• It requires a resolution passed by the Parliament of India a two-thirds majority in both the Lok Sabha and the Rajya Sabha on the grounds of proved misbehaviour or incapacity.
• Other Election Commissioners can be removed by the President of India on the recommendation of the Chief Election Commissioner.
• A Chief Election Commissioner has never been impeached in India.

Recent incidence of criticisms of ECI

Ans. Partiality in Elections

• Over the last couple of years, several actions and omissions of the commission have come in for criticism.
• Nearly 66 former bureaucrats in a letter addressed to the President, expressed their concern over the working of the Election Commission.
• They felt was suffering from a credibility crisis, citing various violations of the model code of conduct during the 2019 Lok Sabha Elections.

Importance of ECI for India

• Conduction of Election: The ECI has been successfully conducting national as well as state elections since 1952.
• Electoral participation: In recent years, however, the Commission has started to play a more active role to ensure greater participation of people.
• Discipline of political parties: It had gone to the extent of disciplining the political parties with a threat of derecognizing if the parties failed in maintaining inner-party democracy.
• Upholds federalism: It upholds the values enshrined in the Constitution viz, equality,
  equity, impartiality, independence; and rule of law in superintendence, direction, and control over electoral governance.
• Free and fair elections: It conducts elections with the highest standard of credibility, freeness, fairness, transparency, integrity, accountability, autonomy and professionalism.

Issues with ECI

• Flaws in the composition: The Constitution doesn’t prescribe qualifications for members of the EC. They are not debarred from future appointments after retiring or resigning.
• No security of tenure: Election commissioners aren’t constitutionally protected with security of tenure.
• Partisan role: The EC has come under the scanner like never before, with increasing incidents of breach of the Model Code of Conduct in the 2019 general elections.
• Political favor: The opposition alleged that the ECI was favoring the ruling party by giving clean chit to the model code of conduct violations made by the PM.
• Non-competence: Increased violence and electoral malpractices under influence of money have resulted in political criminalization, which ECI is unable to arrest.

Central Idea

• The Supreme Court is currently deliberating on the abrogation of Article 370, which granted special status to Jammu and Kashmir.
• The court is exploring whether Article 370 can be equated with the Basic Structure of the Constitution, a principle that enshrines essential features beyond the Parliament’s amendment powers.

What is Basic Structure Doctrine?
Definition	A constitutional principle that certain essential features or basic elements of the Indian Constitution cannot be amended by the Parliament.
Purpose	To preserve the core values and structure of the Constitution, protecting its democratic, secular, and federal character.
Establishment	Established by the Supreme Court in the Kesavananda Bharati v. State of Kerala case in 1973.
Essential Features	Includes supremacy of the Constitution, democratic republic, judicial review, separation of powers, federal structure, rule of law, fundamental rights, and parliamentary system.
Limitation on Amendment	Restricts Parliament’s amending power under Article 368.
Judicial Review	The Supreme Court uses the doctrine to strike down amendments that violate the Basic Structure.

 

Also read:

Wow Wednesday : Evolution of Basic Structure Doctrine

Debate over Article 370

• Constitutional Process: It has been argued that the abrogation of Article 370 was a purely political act and that there was no constitutional process available to revoke it.
• Equating with Basic Structure: The court questioned whether considering the abrogation of Article 370 as impossible amounts to equating it with the principles of the Basic Structure of the Constitution.
• Article 370 as a “Compact”: It has been contended that Article 370 was not part of the Basic Structure but a “compact” between the princely State of J&K and the Government of India, engrafted into the Indian Constitution.
• Government’s Actions: Concerns have been raised about the government’s insertion of Article 367(4)(d), which some argue circumvented the “residuary power” of the State and allowed the Parliament to act as the J&K Constituent Assembly.

Challenges and Concerns Raised

• Permanence of Article 370: The permanence of Article 370 after the Constituent Assembly’s dissolution in 1957 and the procedure followed by the NDA government during the abrogation have been debated.
• Constitutional Machinery: Criticisms have been raised that the Parliament and President took over the powers of the State without considering the views of the people of Jammu and Kashmir.
• Breakdown of Constitutional Structure: Some argue that the events leading up to the abrogation constituted a “complete breakdown” of the constitutional structure, as the State’s powers were absorbed by the Centre, and the State was bifurcated without proper consent.

Conclusion

• The Supreme Court’s ongoing hearings on the abrogation of Article 370 continue to raise important questions about its status and the process involved.
• The court’s decision will have significant implications for understanding the constitutional relationship between the Centre and the States and the sanctity of special provisions like Article 370.

Central Idea

• A political party has called for the dismissal of the state government in Manipur and immediate imposition of President’s Rule to initiate a peace process under a neutral administration.

What is President’s Rule?

• Article 356 of the Indian Constitution, commonly known as President’s Rule, empowers the President to impose central rule in a state where the constitutional machinery has broken down.
• While initially intended for extraordinary circumstances, it has often been misused by central governments for political purposes.

Provisions of Article 356:

• Imposition of President’s Rule: Article 356 allows the President to withdraw the executive and legislative powers of a state government when it cannot function in accordance with the Constitution.
• Triggering factors: The President can invoke Article 356 based on a report from the Governor or suo motu if the constitutional machinery has broken down in the state.
• Duration: It can be imposed for six months at a time, with a maximum duration of three years.
• Parliamentary approval: Every six months, Parliament’s approval is required to continue the imposition of President’s Rule.

Historical Origins

• Inspiration from the Government of India Act, 1935: Article 356 was inspired by Section 93 of this act, which allowed the Governor of a province to assume the powers of the government under certain circumstances.
• Controlled democracy: The provision provided some autonomy to provincial governments while enabling British authorities to exercise ultimate power when necessary.

Political Misuse of Article 356

• Early instances: During Congress dominance, Article 356 was used against governments of the Left and regional parties in states. Jawaharlal Nehru’s government utilized it six times until 1959, including to dislodge Kerala’s elected communist government.
• Increasing misuse: In subsequent decades, Article 356 was used frequently against state governments by various central governments, including those led by Indira Gandhi and the Janata Party.

Landmark Judgment: S R Bommai Case

• Landmark Supreme Court ruling: In the 1994 R. Bommai v. Union of India case, the Supreme Court provided detailed guidelines on the use of Article 356.
• Specific instances for imposition: The court stated that President’s Rule can be invoked in cases of physical breakdown of the government or a ‘hung assembly.’
• Curbing arbitrary use: The judgment emphasized the need to give the state government a chance to prove its majority or instances of violent breakdown before imposing President’s Rule.

Try this PYQ:

Which of the following are not necessarily the consequences of the proclamation of the President’s rule in a State?

1. Dissolution of the State Legislative Assembly
2. Removal of the Council of Ministers in the State
3. Dissolution of the local bodies

Select the correct answer using the code given below:

(a) 1 and 2

(b) 1 and 3

(c) 2 and 3

(d) 1, 2 and 3

 

[wpdiscuz-feedback id=”v9p0oai83g” question=”Please leave a feedback on this” opened=”1″]Post your answers here. [/wpdiscuz-feedback]

 

Central Idea

• CJI DY Chandrachud has agreed to list a series of petitions seeking the criminalisation of marital rape for an early hearing.
• The petitions, triggered by decisions from the Karnataka and Delhi High Courts, aim to challenge the exception in Section 375 of the Indian Penal Code (IPC) that currently decriminalises marital rape.

What is Marital Rape?

• Marital rape is the act of sexual intercourse with one’s spouse without her consent.
• It is no different manifestation of domestic violence and sexual abuse.
• Sex and sexual violence are different altogether irrespective of the person in intercourse.

Why discuss this?

• Historical Perspective: Marital rape was historically considered a right of spouses, but it is now recognized as a form of sexual abuse and domestic violence in many societies worldwide.
• Indian Penal Code: Marital rape is not explicitly recognized as a criminal offense under Section 375 of the Indian Penal Code (IPC).
• Exception: Exception Two of Section 375 decriminalizes marital rape, stating that sexual intercourse by a man with his own wife, who is not under 18 years of age, without her consent is not considered rape.
• Non-Criminalization: India is one of the fifty countries that have not yet outlawed marital rape.

Background and High Court Decisions

• Karnataka HC: It had in April 2022 held that a husband could be charged with rape if he had forcible sexual intercourse with his wife.
• Delhi HC: A Division Bench delivered a split verdict in May 2022 on the issue of marital rape. It struck down ‘exception two’ as unconstitutional, while another judge rejected the plea to criminalise marital rape, suggesting that any changes in the law should be addressed by the legislature.
• Gujarat HC: Before this ruling, in 2018, the Gujarat High Court also called for a relook at the marital rape immunity but quashed the charge of rape against the married man.

Justice J.S. Verma Committee Recommendations (2013) It recommended the removal of the exception for marital rape. It proposed that the law should specify that the “marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation.”

Key observations by Delhi High Court

• Spousal Intimacy: The court highlighted that consent within a marriage is often given as a part of spousal intimacy, even when the will to engage may be absent.
• Written Agreements: The court suggested that treating every such case as marital rape could result in partners having to draft detailed written agreements for survival in a marriage.
• Burden of Evidence: The court expressed concerns about creating a detailed evidentiary record of every act of intimacy or involving a third party as a witness.
• Marriage Obligations: The court emphasized that marriage entails obligations, including conjugal expectations, financial responsibilities, and duties towards progeny.
• Sexual Liberty: The court noted that signs of injury on a partner may not necessarily indicate non-consensual sex but could be a result of passion in the age of sexual liberation.
• Cruelty vs. Rape: The court stated that forced sexual intercourse between spouses cannot be treated as rape and, at most, could be considered sexual abuse under the Domestic Violence Act.

Reasons against Criminalization

• Traditional Views: The reluctance to criminalize non-consensual sex between married couples is attributed to traditional views of marriage.
• Religious Doctrines: Interpretations of religious doctrines often influence the perceptions of marital relationships.
• Gender Norms: Societal expectations of male and female sexuality and the subordination of wives to their husbands contribute to the resistance against criminalization.
• Subjectivity: Determining consent in marital rape cases can be subjective and intricate.
• Potential Misuse: Without adequate safeguards, criminalizing marital rape could be misused by dissatisfied wives to harass their husbands, similar to the misuse of dowry laws.
• Judicial Burden: Criminalizing marital rape could increase the burden on the judiciary, diverting resources from other important cases.

Arguments for Criminalization

• Associated Violence: Marital rape is often accompanied by physical violence, making it a more dangerous form of sexual abuse.
• Mental Harassment: Research indicates that marital rape can cause more emotional and physical harm than rape by a stranger.
• Abusive Relationships: Marital rape is frequently part of an abusive relationship rather than a one-time event.
• Violation of Rights: Criminalizing marital rape is seen as a violation of fundamental rights, including the right to privacy and bodily integrity guaranteed under Article 21 of the Indian Constitution.

Challenges in Prosecuting Marital Rape

• Lack of Awareness: Limited public awareness and reluctance of authorities to prosecute are common challenges globally.
• Gender Norms: Societal norms that subordinate wives to their husbands make it difficult for women to recognize and report marital rape.
• Acceptability: Prevailing social norms often prevent the acceptance of the concept of marital rape.

Present Regulations in India

• Indian Penal Code: The IPC criminalizes rape in most cases, but marital rape is not illegal when the woman is over 18 years of age.
• Age of Consent: Until 2017, men married to women between 15 and 18 years old could not be convicted of rape.
• Separated Wives: Marital rape of an adult wife who is separated, officially or unofficially, is a criminal offence punishable by imprisonment.
• Domestic Violence Act: The Protection of Women From Domestic Violence Act (2005) provides married women subjected to marital rape with the right to demand financial compensation and seek shelter or aid homes.

Way forward

• Recognition of Rights: Sanctioning marital rape acknowledges a woman’s right to control her body and self-determination.
• Need for Concrete Law: The absence of a clear law makes it challenging for the judiciary to decide domestic rape cases without solid evidence.
• Balancing Rights and Duties: The judiciary should consider the rights and duties of both partners before providing a final interpretation.