Subject: Fundamental Rights,DPSP

Central idea: The article aims to demystify the concept of whip and provide clarity on its role and importance in the functioning of state assemblies and parliament in India.

Who is a Whip?

• A whip is an official of a political party whose task is to ensure party discipline in a legislature.
• This means ensuring that members of the party vote according to the party platform, rather than according to their own individual ideology or the will of their donors or constituents.
• Whips are the party’s “enforcers”.
• They try to ensure that their fellow political party legislators attend voting sessions and vote according to their party’s official policy.
• Members who vote against party policy may “lose the whip”, effectively expelling them from the party.

Whips in India

• In India, the concept of the whip was inherited from colonial British rule.
• Every major political party appoints a whip who is responsible for the party’s discipline and behaviors on the floor of the house.
• Usually, they direct the party members to stick to the party’s stand on certain issues and directs them to vote as per the direction of senior party members.

What happens if a whip is disobeyed?

• A legislator may face disqualification proceedings if she/he disobeys the whip of the party unless the number of lawmakers defying the whip is 2/3rds of the party’s strength in the house.
• Disqualification is decided by the Speaker/Chairman of the house.

Limitations of whip

• There are some cases such as Presidential elections where whips cannot direct a Member of Parliament (MP) or Member of the Legislative Assembly (MLA) to vote in a particular fashion.

Types of whips

There are three types of whips or instructions issued by the party

• One-line whip: One-line whip is issued to inform members of a party about a vote. It allows a member to abstain in case they decide not to follow the party line.
• Two-line whip: Two-line whip is issued to direct the members to be present in the House at the time of voting.
• Three-line whip: Three-line whip is issued to members directing them to vote as per the party line.

Need for Whips

• Collective decision-making: The need for a whip arises from the fact that political parties operate on the principle of collective decision-making.
• Fulfill election promises: The whip ensures that the party’s agenda is advanced, and its promises to the electorate are fulfilled, which is essential for the functioning of a healthy democracy.
• Maintain policy cohesiveness: This requires the party to work together as a cohesive unit and ensure that its members vote in a coordinated manner on important legislative matters.
• Address differing opinions: There may be disagreements and differing opinions on certain matters, and this can lead to disunity and chaos within the party.
• Ensure party discipline: To prevent such situations, political parties appoint whips who are responsible for ensuring party discipline and ensuring that all members vote in accordance with the party’s position.

Conclusion

• The whip’s role is therefore crucial in maintaining party discipline and facilitating the smooth functioning of legislative business.
• Without a whip, it would be difficult for parties to ensure that their members vote in a coordinated manner, and this could lead to legislative gridlock and inefficiency.

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A doctor has requested the Delhi High Court to enforce his ‘Right to Be Forgotten,’ which includes removing news articles and other content related to his “wrongful arrest.”

What is the “Right to Be Forgotten” Law?

• The “Right to Be Forgotten” law is a legal concept that allows individuals to request the removal of their personal information from the internet.
• It is based on the idea that individuals have a right to privacy and control over their personal data.
• The law has been implemented in various forms in different countries, including the European Union, Argentina, and South Korea.

What are the origins of this Right?

• The Right to be Forgotten was first established by the European Court of Justice in 2014 in the case of “Google Spain SL, Google Inc v Agencia Española de Protección de Datos, Mario Costeja González”.
• The case was about a Spanish man who wanted to remove a 1998 advertisement about his home being repossessed.
• The Right to be Forgotten was later included in the EU’s General Data Protection Regulation (GDPR), along with the right to erasure.
• Article 17 of the GDPR outlines the right to erasure and provides certain conditions when the right can be restricted.

How does it work?

• The “Right to Be Forgotten” law allows individuals to request the removal of their personal information from search engine results, social media platforms, and other websites.
• The request must be made to the data controller, who is responsible for managing the personal data.
• The data controller then evaluates the request and decides whether to remove the information or not.
• If the request is denied, the individual can appeal the decision to the relevant regulatory authority.

Criticisms of the law

• Critics argue that the law undermines freedom of expression and the public’s right to access information.
• They also claim that the law is difficult to enforce and can lead to the censorship of legitimate information.
• Others argue that the law is too narrow in scope and does not provide adequate protection for individuals’ privacy.

Future of the law

• The “Right to Be Forgotten” law is still a relatively new legal concept, and its future is uncertain.
• It is likely that the law will continue to evolve as courts and regulators grapple with its complexities.
• In the meantime, individuals should be aware of their rights and take steps to protect their personal data online.

What is the law on the Right to be Forgotten?

• Section 43A of the IT Act, 2000 says that organizations who possess sensitive personal data and fail to maintain appropriate security to safeguard such data, resulting in wrongful loss or wrongful gain to anyone, may be obligated to pay damages to the affected person.
• IT Rules, 2021 do not include this right, they do however, lay down the procedure for filing complaints with the designated Grievance Officer so as to have content exposing personal information about a complainant removed from the internet.

Judicial precursor to the issue

• The Right to be Forgotten is not explicitly recognized by Indian law, but it has been considered part of an individual’s Right to Privacy under Article 21 by Indian courts since the 2017 ruling in “K.S.Puttaswamy vs Union of India“.
• The court acknowledged that this right may be restricted by the right to freedom of expression and information or legal obligations.
• In 2021, the Delhi High Court directed online platforms to remove publicly available records of a case against an American citizen under the Narcotics Drugs and Psychotropic Substances Act, 1985, who argued that it was affecting his employment prospects.

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The Supreme Court issued notices to the Centre and five states — Rajasthan, Uttarakhand, Madhya Pradesh, Uttar Pradesh, and Jharkhand — over the failure to elect a Deputy Speaker.

The Post of Deputy Speaker

• The Deputy Speaker is the second-highest-ranking official of the Lok Sabha, after the Speaker.
• She/he presides over the House in the absence of the Speaker, maintains order and decorum, and decides points of order raised by the members.
• She/he is elected by the members of the House and holds office until the next Lok Sabha is constituted.

Constitutional provisions for Dy. Speaker

• The Constitution of India provides for the post of Deputy Speaker in the Lok Sabha under Article 93.
• The Deputy Speaker is elected by the members of the House and holds the office until the next Lok Sabha is constituted.
• The Constitution does not provide for a temporary or acting Deputy Speaker in case of the incumbent’s absence or inability to perform the duties.
• Article 178 contains the corresponding position for Speaker and Deputy Speaker of the Legislative Assembly of a state.

Is it mandatory to have a Deputy Speaker?

• Constitutional experts point out that both Articles 93 and 178 use the word “shall”, indicating that the election of Speaker and Deputy Speaker is mandatory under the Constitution.

What if she/he remains absent?

• In the absence of Dy. Speaker, the house functions with the Speaker or the panel of chairpersons presiding over the House.
• The House may elect a new Deputy Speaker to fill the post until the next assembly is constituted.
• The House might need to elect a new Deputy Speaker in case of the incumbent’s absence or inability to perform the duties.

Why discuss this?

• The post of Deputy Speaker is an important position in the Lok Sabha/Legislative Assembly and plays a crucial role in conducting the House proceedings.
• It is important to ensure the post’s functioning to maintain the House’s order and decorum and conduct the House proceedings smoothly.

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A Constitution Bench of the Supreme Court referred to a larger Bench of nine judges a series of petitions challenging the authority of minority community leaders to excommunicate their members.

Excommunication case: A quick backgrounder

• On November 1, 1949, the Bombay Prevention of Excommunication Act (now repealed) was enacted, which sought to prevent the practice of excommunication prevalent in certain communities.
• Excommunication has led to the deprivation of legitimate rights and privileges of its members and in “keeping with the spirit of changing times and in public interest”.

What is Excommunication?

• The law defined excommunication as the “expulsion of a person from any community of which he is a member, depriving him of rights and privileges which are legally enforceable by a suit of civil nature”.
• It invalidated excommunication of any member, “notwithstanding anything contained in law, custom, usage” for the time being in force.

Issues with Excommunication

• Discriminatory: Excommunication is a serious and permanent punishment that can have a negative impact on a person’s life.
• Loss of identity: It can lead to a person feeling isolated, ostracized and excluded from the religion and community.
• Social boycott: It may also lead to feelings of guilt, shame and alienation. Furthermore, it can lead to a loss of faith and a sense of mental despair.

How did the matter reach the Supreme Court?

• A cleric of the community challenged the constitutional validity of the Act, stating it violated fundamental rights guaranteed by the Constitution under:

1. Article 25 (Freedom of conscience and free profession, practice and propagation of religion) and
2. Article 26 (Freedom to manage religious affairs)

• It was submitted that the power of excommunication was part of the management of community affairs in matters of religion.
• The cleric also held that the power to excommunicate is not absolute or arbitrary.

What has been happening in the matter more recently?

• A Constitution Bench of the SC held in 1962 that the cleric’s position is an essential part of the community and the power to excommunicate is to enforce discipline and preserve the denomination, not to punish.
• A challenge to the 1962 judgment was filed in 1986.
• While that petition was still pending, the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016, was passed.
• The 2016 Act prohibits the social boycott of a person or a group of persons, and terms it a violation of fundamental rights.
• The Act describes a social boycott as “inhuman”, and defines 16 types of social boycott — including preventing members of a community from having access to facilities including community halls, burial grounds, etc.

What exactly did the Supreme Court say now?

• A Constitution Bench said that the 1962 judgment needed a relook.
• The court held that the consideration was needed mainly on two grounds: Balancing the rights under-

1. Article 26(b) — right of religious denominations to manage their own affairs in matters of religion — and
2. Article 21 — whether the practice can be protected under Article 26(b) when tested on the touchstone of constitutional morality.

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Sitting PM recalled that governments at the Centre had dismissed 90 elected state governments by “misusing” Article 356 of the Constitution.

What is Article 356?

• Article 356 of the Indian Constitution contains provisions for the imposition of “President’s Rule” in a state, removing an elected government.
• While the Constitution intended Article 356 to be used only under extraordinary circumstances, central governments repeatedly used the provision to settle political scores.

What does it say?

• Article 356 empowers the President to withdraw to the Union the executive and legislative powers of any state.
• She/he has to be satisfied that a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of the Constitution.
• Whether the constitutional machinery has broken down may be determined by the President at any time, either upon receipt of a report from the Governor, or suo motu.

Duration of Presidents Rule

• According to the provisions of Article 356, President’s Rule in a state can be imposed for six months at a time for a maximum duration of three years.
• Every six months, Parliamentary approval to impose President’s Rule will be required again.
• However, in the past, President’s Rule has been extended for significantly longer periods under specific circumstances.
• For instance, Punjab was under President’s Rule from 1987-1992 due to the growing militancy.

What are the origins of Article 356?

• Article 356 was inspired by Section 93 of the Government of India Act, 1935.
• This provided that if a Governor of a province was satisfied that a situation had arisen in which the government of the province cannot be carried on in accordance GOI Act, he could assume to himself all or any of the powers of the government and discharge those functions in his discretion.
• The Governor, however, could not encroach upon the powers of the high court.
• For the British, this provision allowed for a ‘controlled democracy’ – while providing some autonomy to provincial governments, Section 93 allowed the British authorities to exercise ultimate power when they deemed necessary.

How was the provision used as a political weapon in independent India?

• During the decades of Congress’s dominance at the Centre, Article 356 was used against governments of the Left and regional parties in the states.
• Until 1959, Jawaharlal Nehru’s government had used the article six times, including to dislodge the first-ever elected communist government in the world, in Kerala in 1959.
• In the 1960s, it was used 11 times. After Indira came to power in 1966, Article 356 was used seven times between 1967 and 1969 alone.
• The 1970s were more politically turbulent. Between 1970 and 1974, President’s Rule was imposed 19 times.
• Post-emergency, the Janata Party government used it in 1977 to summarily dismiss nine Congress state governments.
• When Indira returned to power in 1980, her government too imposed President’s Rule in nine states.
• In 1992-93, PM Narasimha Rao dismissed three governments in the wake of the demolition of Babri Masjid, besides Kalyan Singh’s government in UP.

How was this political misuse of Article 356 curbed?

Ans. S R Bommai Judgment, 1989

• In its judgment in the landmark R. Bommai v. Union of India case, the Supreme Court discussed the provisions of Article 356 at length.
• A nine-judge Bench in its decision in 1994 noted the specific instances when President’s Rule can be imposed and when it cannot.
• The court held that Article 356 can be invoked in situations of the physical breakdown of the government or when there is a ‘hung assembly’.
• But that it cannot be used without giving the state government a chance to either prove its majority in the House or without instances of a violent breakdown of the constitutional machinery.
• Since the judgment, the arbitrary use of Article 356 has been largely controlled.

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

 

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