Subject: Fundamental Rights,DPSP

Central Idea

• National Commission for Backward Classes (NCBC) is processing the approval for adding approximately 80 castes from six states to the Central List of Other Backward Classes (OBCs).
• The Ministry of Social Justice and Empowerment (MSJE) also reported the addition of 16 communities to the Central OBC list in Himachal Pradesh, Bihar, Jharkhand, Madhya Pradesh, and Jammu and Kashmir.

About National Commission for Backward Classes (NCBC)
Established	Constitution Act, 2018 (also known as 102nd Amendment Act, 2018) under Article 338B of the Indian Constitution
Jurisdiction	Ministry of Social Justice and Empowerment, Government of India
Purpose	Active participation and advisory role in the socio-economic development of socially backward classes (OBCs) Evaluating the progress of their development
Statutory Backing	Outcome of the Indra Sawhney & Others v. Union of India case (16.11.1992)
Composition	Chairperson, Vice-Chairperson, and three other members appointed by the President Conditions of service and tenure determined by the President
Functions and Powers	Inclusions and exclusions in the lists of backward communities for job reservations Providing advice to the Central Government Investigating and monitoring safeguards for backward classes Inquiring into specific complaints related to their rights and safeguards Participating in socio-economic development and evaluating progress
Reports and Recommendations	Annual reports to the President and recommendations for effective implementation of safeguards Recommendations for measures to protect, welfare, and socio-economic development of backward classes
Other Functions	Discharging functions specified by the President and subject to parliamentary laws
Constitutional Amendment	102nd Constitutional Amendment Act (2018) empowered NCBC to address grievances of Other Backward Classes

 

Who are the Other Backward Classes (OBCs)?

• Other Backward Class is a collective term used to classify castes which are educationally or socially disadvantaged.
• It is one of several official classifications of the population of India, along with General Class, Scheduled Castes and Scheduled Tribes (SCs and STs).
• The OBCs were found to comprise 55% of the country’s population by the Mandal Commission report of 1980, and were determined to be 41% in 2006.

Communities likely to be added

States like Maharashtra, Telangana, Andhra Pradesh, Himachal Pradesh, Punjab, and Haryana have proposed communities to be added to the Central OBC list.

1. Telangana: Suggested the addition of around 40 communities.
2. Andhra Pradesh: Turup Kapu community
3. Himachal Pradesh: Majhra community
4. Maharashtra: Lodhi, Lingayat, Bhoyar, Pawar, and Jhandse communities
5. Punjab: Yadav community
6. Haryana: Gosai/Gosain community

Approval Process

• NCBC Examination: The NCBC examines the requests and processes them accordingly, aiming for most of them to be approved.
• Cabinet Approval: Once the Commission decides, it can send its recommendations to the Cabinet for approval.
• Notification by President: The final step involves legislation and notification by the President to enact the changes.

How is the process different from SC/ST list updation?

• Unlike the procedure for adding communities to the SC or ST lists, the addition of communities to the Central OBC list does not require the concurrence of the Office of the Registrar General of India or any other authority.
• The Commission follows guidelines established by the Mandal Commission in 1979, considering social, educational, and economic indicators for additions to the Central OBC list.

Current Status of OBC List and Recent Additions

• The Central OBC list currently includes over 2,650 different communities from all states and union territories.
• The Union government takes credit for recent additions and highlights the 105th Constitutional Amendment, which protects state OBC communities from being deprived of benefits.
• There are currently about 1,270 communities listed in the Scheduled Caste (SC) list and 748 communities in the Scheduled Tribes (ST) list.

Changes in the SC and ST Lists

• Since the last Census in 2011, four communities have been added to the SC list as main entries, 40 as sub-entries, and four have been dropped or moved to other lists.
• Similarly, in the ST list, five communities were added as main entries, 22 as sub-entries, 13 as substitute terms, and one was dropped.

Impact of OBC List Additions

• Broader representation: Adding more castes to the Central OBC list ensures broader representation and access to reserved seats and benefits for disadvantaged communities.
• Social upliftment: The inclusion of additional communities acknowledges their backwardness and provides opportunities for social upliftment and empowerment.

Challenges and Criticisms

• Political motivation: The process may face challenges and criticisms, such as concerns over potential political motivations or inaccuracies in identifying backwardness.
• Issue of parity: Ensuring transparency, fairness, and inclusivity in the decision-making process is essential to address these challenges and maintain the integrity of the OBC list.

Conclusion

• The reservation system and OBC list play a significant role in promoting social equality by providing opportunities for historically marginalized communities.
• The continuous evaluation and expansion of the OBC list reflect the government’s commitment to creating a more inclusive society and addressing historical injustices.

Central Idea

• The central government issued an Ordinance on May 19, overturning a unanimous Supreme Court verdict.
• The Ordinance grants the Lieutenant Governor of Delhi authority over services, challenging the elected government’s control over officials’ transfer and posting.
• This raises constitutional concerns about the balance of power between the elected government and the Lieutenant Governor.

Issues with this ordinance

• The Ordinance bestowed power over services to the Lieutenant Governor of Delhi.
• It established the “National Capital Civil Service Authority,” consisting of the Chief Minister and two senior IAS officials, to decide matters by majority vote.
• This provision potentially allows the elected Chief Minister’s viewpoint to be overruled.

Key issues with the current model of Governance of Delhi

• Undermining the elected government: The LG, who will be the government, is under no obligation to implement any law passed by the assembly or carry out the directions of the house as he is not responsible to the assembly.
• Lack of Executive Accountability: The Lieutenant Governor, who is the head of government, is not accountable to the assembly, which undermines the principle of executive accountability.
• Against the privilege of legislature: Framing the rules to conduct its proceedings is thus a part of the privilege each house of a legislature enjoys.
• Delay in decision-making: The requirement for LG’s approval for many decisions has led to delays in decision-making, which has impacted the development and governance of the city.
• Accountability issues: The division of responsibilities between the elected government and the Lieutenant Governor has led to difficulties in fixing responsibility for actions and decisions.
• Against Co-operative Federalism: The Act not only negates cooperative federalism but also upturns the fundamental principles laid down by the Supreme Court in Government of NCT Delhi vs Union of India case (2018).
• Control over Services Department: Governance has always been a contentious issue since Delhi is not a full state and the Services department comes under the L-G.

What is Ordinance?

• Under Article 123 of the Constitution, the President possesses law-making powers through the issuance of ordinances during the recess of Parliament.
• Article 213 grants the Governor of a state the authority to issue ordinances when the state legislative assembly or either of the two Houses (in states with bicameral legislatures) is not in session.
• However, there are limitations to this authority:

1. Issuance during Recess: The President can only promulgate an ordinance when one or both Houses of Parliament are not in session.
2. Immediate Action: An ordinance can only be issued when the President deems it necessary for immediate action.
3. Justiciability: The President’s intentions to issue ordinances can be subject to judicial review if mala fide intentions are proven.

Features of Ordinances

Several characteristics and provisions are associated with ordinances:

• Retrospective Effect: An ordinance can have a retrospective application, meaning it can be enacted prior to its approval.
• Nullity during Parliamentary Session: An ordinance issued while Parliament is in session is considered null and void.
• Time Limit for Approval: An ordinance must be approved by Parliament within six weeks of its reassembly. Failure to do so leads to its expiration.
• Continuation of Acts and Laws: Acts, laws, and events resulting from the ordinance remain in effect until its expiration.
• Limits on Legislative Authority: Ordinances can only be passed on subjects within the legislative competence of the Indian Parliament.
• Protection of Fundamental Rights: Ordinances cannot be used to revoke the fundamental rights guaranteed by the Indian Constitution. Their enforcement would render them null and void if both Houses pass a resolution opposing them.

Issues with the Ordinances

The use of ordinances has raised concerns regarding their potential misuse and circumvention of democratic processes. Some key concerns are:

• Bypassing the Legislature: Deliberate bypassing of the legislature to avoid debate and deliberation on contentious legislative proposals undermines democratic principles.
• Repromulgation of Ordinances: Repromulgation without placing the ordinance before the legislature subverts democratic legislative processes and the separation of powers.
• Presidential Satisfaction: The satisfaction of the President as a requirement for issuing an ordinance provides scope for potential misuse.
• Ignoring Supreme Court’s Judgments: Instances of ordinances being promulgated despite Supreme Court judgments highlighting their conditional and exceptional nature raise concerns about adherence to constitutional principles.

Judicial Safeguards to avoid re-promulgation of ordinances

1. Supreme Court in RC Cooper vs. Union of India (1970) held that the President’s decision to promulgate ordinance could be challenged on the grounds that ‘immediate action’ was not required, and the ordinance had been issued primarily to bypass debate and discussion in the legislature.
2. It was argued in DC Wadhwa vs. the State of Bihar (1987) that the legislative power of the executive to promulgate ordinances is to be used in exceptional circumstances and not as a substitute for the law-making power of the legislature.
3. Supreme Court in Krishna Kumar Singh v. the State of Bihar held that the authority to issue ordinances is not an absolute entrustment, but is “conditional upon satisfaction that circumstances exist rendering it necessary to take immediate action”.

Way ahead

• Every ordinance issued must be laid before both the Houses of Parliament or state legislature within six weeks from the reassembly of Parliament or state legislature and it ceases to exist if it is not approved within six weeks of reassembly.
• 44th Constitutional Amendment has reiterated that the satisfaction of the President to promulgate ordinance could be challenged in case an ‘immediate action’ was not required.
• Our Constitution has provided for the separation of powers among the legislature, executive and judiciary where enacting laws is the function of the legislature.
• The executive must show self-restraint and should use ordinance making power only in unforeseen or urgent matters and not to evade legislative scrutiny and debates.

Conclusion

• The recent Ordinance and its constitutional implications highlight the need for a balanced distribution of powers between the elected government and the Lieutenant Governor in Delhi.
• It is essential to uphold democratic principles and ensure that legislative functions are carried out by the appropriate constitutional authorities.
• A comprehensive review of the governance framework in Delhi may be necessary to address these concerns and ensure effective and harmonious governance in the capital city.

 

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The govt in the Supreme Court has said that same-sex couples and live-in partners are not included in surrogacy and assisted reproduction laws to avoid ‘misuse’ and provide children a ‘complete family’.

Government’s stance

• Same-sex couples and live-in partners are excluded from surrogacy and assisted reproduction laws to avoid ‘misuse.’
• The welfare of the child should be prioritized over any notions of equality among prospective parents or couples.
• No special provisions or additional rights have been granted to same-sex couples and live-in partners despite the decriminalization of their relationships.

Why in news?

• The government’s perspective is not in tune with several Supreme Court judgments that long live-in relationships “presume” marriage.
• Live-in partners are not bound by law, and the safety of the child born through surrogacy cannot be guaranteed.

Judiciary in support

• Same-sex couples are fighting for their right to marry and raise a family as equal parents.
• CJI heading the Constitution Bench, has remarked that same-sex couples could offer as stable and loving a home, if not better, to children as heterosexual married parents.

Distinct features of the Surrogacy (Regulation) Act, 2021

• Definition of surrogacy: It defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand over the child after the birth to the intending couple.
• Regulation of surrogacy: It prohibits commercial surrogacy, but allows altruistic surrogacy which involves no monetary compensation to the surrogate mother other than the medical expenses and insurance.
• Purposes for which surrogacy is permitted: Surrogacy is permitted when it is: (i) for intending couples who suffer from proven infertility; (ii) altruistic; (iii) not for commercial purposes; (iv) not for producing children for sale, prostitution or other forms of exploitation; and (v) for any condition or disease specified through regulations.
• Eligibility criteria: The intending couple should have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority ex. District Medical Board.

Eligibility criteria for surrogate mother:

• To obtain a certificate of eligibility from the appropriate authority, the surrogate mother has to be:

1. A close relative of the intending couple;
2. A married woman having a child of her own;
3. 25 to 35 years old;
4. A surrogate only once in her lifetime; and
5. Possess a certificate of medical and psychological fitness for surrogacy.

• Further, the surrogate mother cannot provide her own gametes for surrogacy.

Basis of the Petition: Right to Reproductive Autonomy

• The personal decision of a single person about the birth of a baby through surrogacy, i.e., the right of reproductive autonomy is a facet of the right to privacy guaranteed under Article 21 of the Constitution.
• Thus, the right to privacy of every citizen or person affecting a decision to bear or beget a child through surrogacy cannot be taken away.

Other issues with Surrogacy Law

• Medical issue necessity: Married women can only avail surrogacy services if they are unable to produce a child due to medical conditions.
• Widow/Divorced: Otherwise, for women to avail of surrogacy services, they must be aged between 35 and 45 and widowed or divorced.
• One child obligation: Women can only offer surrogacy if they are aged between 25 and 35 and married with at least one biological child.
• Genetic relation obligation: The laws also require a surrogate to be genetically related to the couple who intend to have a child through this method.

 

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Central Idea

• The Chief Justice of India has questioned why a 23-year-old Constitution Bench judgment was not shown to the Manipur High Court, which directed the state government to consider the inclusion of Meetei/Meitei community in the Scheduled Tribe list.
• The Chief Justice observed that a High Court does not have the power to direct changes in the Scheduled Tribes List, as it is a Presidential power to designate a Scheduled Caste or Scheduled Tribe.

What is the Scheduled Tribes List?

• Article 342(1) of the Constitution states that it is entirely the President’s power to designate a Scheduled Caste or Scheduled Tribe.
• It is not open to State governments, courts, tribunals, or any other authority to modify, amend or alter the list of Scheduled Tribes specified in the notification issued under clause (1) of Article 342.
• A notification issued under clause (1) of Article 342 can be amended only by law to be made by Parliament.

Notable Judgements:

(1) The State of Maharashtra vs. Milind verdict

• The five-judge Constitution Bench in State of Maharashtra versus Milind, in November 2000, held that a notification issued under clause (1) of Article 342, specifying Scheduled Tribes, can be amended only by law to be made by Parliament.
• Any tribe or tribal community or part of or group within any tribe can be included or excluded from the list of Scheduled Tribes only by Parliament by law and by no other authority.

(2) FCI vs. Jagdish Balaram Bahira

• The settled law in the Milind verdict was referred to by a July 2017 judgment authored by Justice Chandrachud for a three-judge Bench of the Supreme Court in CMD, FCI versus Jagdish Balaram Bahira to note that the Presidential Order under Article 342 regarding Scheduled Tribes was always “final”.

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Back2Basics: Scheduled Tribes

• The term ‘Scheduled Tribes’ first appeared in the Constitution of India.
• Article 366 (25) defined scheduled tribes as “such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this constitution”.
• Article 342 prescribes procedures to be followed in the matter of specification of scheduled tribes.

• Among the tribal groups, several have adapted to modern life but there are tribal groups who are more vulnerable.
• The Dhebar Commission (1973) created a separate category “Primitive Tribal Groups (PTGs)” which was renamed in 2006 as “Particularly Vulnerable Tribal Groups (PVTGs)”.

How are STs notified?

• The first specification of Scheduled Tribes in relation to a particular State/ Union Territory is by a notified order of the President, after consultation with the State governments concerned.
• These orders can be modified subsequently only through an Act of Parliament.

Status of STs in India

• The Census 2011 has revealed that there are said to be 705 ethnic groups notified as Scheduled Tribes (STs).
• Over 10 crore Indians are notified as STs, of which 1.04 crore live in urban areas.
• The STs constitute 8.6% of the population and 11.3% of the rural population.

 

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Central Idea: The government informed the Supreme Court that it is considering the formation of a committee to examine the need for a painless and more dignified alternative to death by hanging.

Background Information

• Death by hanging is a mode of execution in India.
• In March, the Supreme Court had asked the government to provide data on a more acceptable method of executing prisoners other than death by hanging.
• A petition was filed challenging the constitutionality of death by hanging as a mode of execution.

Death Sentences imposed so far

• 539 prisoners were on death row in India at the end of 2021, the highest since at least 2016.
• In 2022, trial courts imposed 165 death sentences, the highest in over two decades.
• Gujarat courts imposed 51 death sentences in 2022, the highest among all the States.
• Uttar Pradesh and Jharkhand also recorded significant increases in death sentences imposed by trial courts in 2022.
• From the 67 decided cases by the High Court’s involving 101 prisoners in 2022, three prisoners had their death sentences confirmed, 48 prisoners saw their death sentences commuted to life imprisonment, 43 were acquitted of all charges and six had their cases remitted to the trial court.
• In the 11 cases decided by the Supreme Court involving 15 prisoners in 2022, 5 prisoners were acquitted of all charges; the death sentences for eight were commuted to life imprisonment; and the death penalty was confirmed for two.

Death Penalty by Hanging: Present Status

• Section 354 (5) of the Code of Criminal Procedure mandates that a person sentenced to death shall “be hanged by the neck till he is dead”.
• In India, the Air Force Act, 1950, the Army Act 1950, and the Navy Act 1957 say that execution has to be carried out either by hanging by the neck until death or by being shot to death.

• In 2018, the Centre had filed an affidavit supporting death by hanging as a mode of execution.
• The Centre had not found the method of execution “barbaric, inhuman and cruel” compared to firing squads and lethal injections.

Various initiatives to alter death by hanging

• Ensuring dignified death: The government is considering the formation of a committee to examine the need for a painless and more dignified alternative to death by hanging.
• Panel formation: The Chief Justice of India had suggested the formation of a committee with experts from national law universities, professors of law, doctors, and scientific persons.
• Humane and painless method: The court indicated that it may even direct an alternative method of executing capital punishments if it was proved that there was a more “humane” method of execution.
• Voices for psychological tests: The SC has asked for psychological evaluation of condemned prisoners by expert doctors, and access for them by mitigating investigators.

Concerns raised by Judiciary

• The Chief Justice had observed that better data was needed to relook at death by hanging.
• The court wanted to know the-

1. Impact of the sentence of death by hanging
2. Pain caused
3. Period of actual death, and
4. Availability of resources for hanging a person

Judiciary at loggerheads

• The court clarified that it was not questioning the constitutionality of the death penalty, which was well-settled in Deena versus Union of India Case judgment and the Bachan Singh case reported in 1980.
• The government argued that the mode of execution is a “matter of legislative policy” and the death penalty is awarded only in the rarest of rare cases, with only three executions between 2012 and 2015.

Debate over Death Penalty

Arguments in favor of death penalty	Arguments against death penalty
– Forfeiture of life: Supporters of the death penalty believe that those who commit murder, because they have taken the life of another, have forfeited their own right to life.	– Eye for an eye: Reformative justice is more productive, that innocent people are often killed in the search for retribution, and that “an eye for an eye makes the whole world blind.
– Moral indignation of the victim: It is a just form of retribution, expressing and reinforcing the moral indignation not only of the victim’s relatives but of law-abiding citizens in general.	– Deterrence is a myth: Death penalty is not a deterrent to capital crimes state that there is no evidence to support the claim that the penalty is a deterrent.
– Highest form of Justice: For heinous crimes such as the Nirbhaya Gangrape Case, no other punishment could have deterred the will of the convicts.	– Political tool of suppression: The authorities in some countries, for example Iran and Sudan, use the death penalty to punish political opponents.
– Deterrent against crime: Capital punishment is often justified with the argument that by executing convicted murderers, we will deter would-be murderers from killing people.	– Reverence for life’ principle: Death penalty is an immoral punishment since humans should not kill other humans, no matter the reasons, because killing is killing.
– Proportional punishment: The guilty people deserve to be punished in proportion to the severity of their crime.	– Stigma against killing: With the introduction of lethal injection as execution method, medical professionals participate in executions. Many professionals have now refused to administer such deaths.
– Prevailing lawlessness: The crimes we are now witnessing cannot be addressed by simple punishments. We are seeing horrific attacks on women, young girls, minority communities and Dalits etc.	– Skewed justice systems: In many cases recorded by Amnesty International, people were executed after being convicted in grossly unfair trials, on the basis of torture-tainted evidence and with inadequate legal representation.
– Prevention of crime is non-existent: Despite of stringent regulations, it is certainly visible that some crimes can never be prevented in our society.	– Discriminatory nature: The weight of the death penalty is disproportionally carried by those with less advantaged socio-economic backgrounds or belonging to a racial, ethnic or religious minority.

 

Other issues with such executions

(a) Socio-Economic Factors

• The recent statistics shows that the death row prisoners in India are more from the backward classes of the society.
• The death row prisoners belong to backward classes and religious minorities and the majority of convicts’ families are living in adjunct poverty.
• These people who are backward both in economic and social respects, are not in a position to here expensive lawyers and get proper representation in the Court.

(b) Delayed Execution

• The law provides for a long process before the execution of the convicts actually takes place.
• The unexplained delay in execution can be a ground for commutation of death penalty, and an inmate, his or her kin, or even a public-spirited citizen could file a writ petition seeking such commutation.
• Their trials are often cruelly forced to endure long periods of uncertainty about their fate.

Way forward: Law Commission recommendations on death penalty

The Law Commission of India in its 262^nd Report (August 2015) recommended that:

• Death penalty be abolished for all crimes other than terrorism-related offences and waging war.
• Measures such as police reforms, witness protection scheme and victim compensation scheme should be taken up expeditiously by the government.
• It felt that time has come for India to move towards abolition of the death penalty. However the concern is often raised that abolition of death penalty for terrorism-related offences and waging war, will affect national security.

 

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