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Subject: Fundamental Rights,DPSP

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

  • Bill assent, a delay and the Governor’s options

    Context

    The State of Tamil Nadu has been witnessing a confrontation between the elected government and the State Governor on the question of giving assent to the National Eligibility cum Entrance Test (NEET) Bill passed by the State Assembly.

    Position of Governor in Constitutional setup in India:

    • Appointee of the President: The Governor is an appointee of the President, which means the Union government.
    • Although Article 154(1) of the Constitution vests in the Governor the executive power of the State, he is required to exercise that power in accordance with the Constitution.
    • In other words, the Governor can act only on the aid and advice of the Council of Ministers.
    • It is a settled constitutional position that the Governor is only a constitutional head and the executive power of the State is exercised by the Council of Ministers.
    • In Shamsher Singh vs State of Punjab (1974), the Supreme Court had clearly affirmed this position.
    • Dr. Ambedkar explained the position of the Governor in the Constituent Assembly as follows: “The Governor under the Constitution has no functions which he can discharge by himself: no functions at all.”
    • The Sarkaria Commission restates this position in its report, “it is a well-recognized principle that so long as the council of ministers enjoys [the] confidence of the Assembly its advice in these matters, unless patently unconstitutional, must be deemed as binding on the governor”.
    • In 2016, a five-judge constitution Bench of the Supreme Court (the Nabam Rebia case) reaffirmed the above position on the governors’ powers in our constitutional setup.

    What exactly are the options before the Governor in the matter of giving assent to a Bill passed by the Assembly?

    • Assent of the Governor or the President is necessary for a Bill to become law.
    • Four options: Article 200 of the Constitution provides for four alternative courses of action for a Governor when a Bill after being passed by the legislature is presented to him for his assent.
    • 1] The Governor can give his assent straightaway.
    • 2] The Governor can withhold his assent.
    • 3] He may also reserve it for the consideration of the President, in which case the assent is given or withheld by the President.
    • 4] The fourth option is to return the Bill to the legislature with the request that it may reconsider the Bill or any particular provision of the Bill.
    • When such a message is received from the Governor, the legislature is required to reconsider his recommendations quickly.
    • However, if the legislature again passes the Bill without accepting any of the amendments suggested by the Governor he is constitutionally bound to give assent to the Bill.

    Issue of the NEET Bill

    • The Governor of Tamil Nadu returned the NEET Bill to the Assembly for reconsideration of the Bill.
    • Accordingly, the Assembly held a special session in the first week of February and passed it again and presented it to the Governor for his assent.
    • He has not assented to the Bill so far.
    • While it is true that Article 200 does not lay down any time frame for the Governor to take action under this Article, it is imperative on the part of the Governor to exercise one of the options contained therein.
    • The option mentioned in Article 200 is meant to be exercised by the Governor without delay.
    • Non-action is not an option: Although Article 200 does not say by what time the Governor should take the next step, it clearly and unambiguously states the options for him to exercise.
    • It is obvious that if the Governor does not exercise any of those options he will not be acting in conformity with the Constitution because non-action is not an option contained in Article 200.
    • In fact, the words used in Article 200 “… it shall be presented to the governor and the governor shall declare….” indicates that the Constitution requires the Governor to act without delay upon the presentation of the Bill.
    • In view of the mandatory provision in the proviso to Article 200, it is clear that the Constitution does not permit the Governor to sit on a Bill after the Assembly re-submits it to him after reconsideration.

    Takeaways

    • Giving assent to a Bill passed by the legislature is a part of the legislative process and not of the executive power.
    •  Withholding of assent, though an option, is not normally exercised by Governors because it will be an extremely unpopular step.
    • Besides, withholding assent to a Bill by the Governor, an appointee of the President, neutralises the entire legislative exercise by an elected legislature enjoying the support of the people.
    • This option is undemocratic and essentially against federalism. 
    • Practices in UK and Australia: In the United Kingdom it is unconstitutional for the monarch to refuse to assent to a Bill passed by Parliament.
    • Similarly, in Australia, refusal of assent to a Bill by the crown is considered repugnant to the federal system.

    Conclusion

    In our constitutional system, the Governor or the President is not personally responsible for their acts. But when a Governor does not take any decision on a Bill which is put up for his assent, he is not acting in exercise and performance of the duties cast upon him.

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  • India slips to 150 in Press Freedom Index

    India has reached 150th position in the World Press Freedom Index, dropping further from its last year’s 142nd rank out of 180 countries.

    What is Press Freedom Index?

    • The PFI is an annual ranking of countries compiled and published by Reporters Without Borders since 2002.
    • It is based upon the organisation’s own assessment of the countries’ press freedom records in the previous year.
    • It intends to reflect the degree of freedom that journalists, news organisations, and netizens have in each country, and the efforts made by authorities to respect this freedom.
    • It does not measure the quality of journalism in the countries it assesses, nor does it look at human rights violations in general.

    Highlights of the 2022 report

    (a) Best performing countries

    • Norway– 1st
    • Denmark– 2nd
    • Sweden– 3rd
    • Estonia– 4th
    • Finland– 5th

    (b) Worst performers

    • North Korea remained at the bottom of the list, while Russia was placed at 155th position, slipping from 150th last year.
    • As per the global media watchdog, China climbed up by two positions ranking at 175th position, as compared to 177th position last year.

     (c) Performance in our neighbourhood

    • Besides India, its neighbours except Nepal have also slid down.
    • While Pakistan is at 157th position, Sri Lanka ranks at 146th, Bangladesh at 162nd and Maynmar at 176th position.

    Back2Basics: Freedom of Press and Constitutional Provisions

    • The Supreme Court in Romesh Thappar v. the State of Madras, 1950 observed that freedom of the press lay at the foundation of all democratic organisations.
    • It is guaranteed under the freedom of speech and expression under Article 19, which deals with ‘Protection of certain rights regarding freedom of speech, etc.
    • Freedom of the press is not expressly protected by the Indian legal system but it is impliedly protected under article 19(1) (a) of the constitution.
    • The freedom of the press is also not absolute.

    Reasonable restrictions

    • A law could impose only those restrictions on the exercise of this right, it faces certain restrictions under article 19(2), which is as follows:
    1. Sovereignty and integrity of India
    2. Security of the State,
    3. Friendly relations with foreign States
    4. Public order, decency or morality
    5. Contempt of court
    6. Defamation
    7. Incitement to an offence

     

     

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  • Quasi-Federalism in India

    This newscard is an excerpt from the original article published in the TH.

    Why in news?

    • The contemporary discourse on federalism in India is moving on a discursive across multiple dimensions, be it economic, political and cultural,
    • It is argued that India is at an inflection point vis-a-vis Centre-State relations owing to increasing asymmetry.

    What is Federalism?

    • Federalism is a system of government in which the power is divided between a central authority and various constituent units of the country.
    • This vertical division of power among different levels of governments is referred to as federalism.
    • Federalism is one of the major forms of power-sharing in modem democracies.

    Indian case: Federal, quasi-federal or hybrid?

    • India consciously adopted a version of federalism that made the Union government and State governments interdependent on each other (latter more vis-a-vis the former).

    The federal features of the Constitution of India are:

    • Written Constitution: Features of the Indian Constitution is not only a written document but also the longest constitution in the world. Originally, it included a Preamble, 395 articles (22 parts), and 8 schedules.
    • Dual Polity: The constitution establishes a dual polity that includes the union at the periphery. Each is endowed with sovereign powers to be exercised in the field assigned to them respectively by the Constitution.
    • Bicameralism: The constitution provides for a bicameral legislature in which an upper house (Rajya Sabha) and a lower house (Lok Sabha). Rajya Sabha represents the states of the Indian Union, whereas The Lok Sabha represents the people of India as a whole.
    • Division of Powers: The Constitution divided the powers between the Center and the states in terms of the Union List, State List, and Concurrent List in the Seventh Schedule.
    • Supremacy of the Constitution: The Constitution is the supreme law of the country. The laws made by the Center and the states should be in conformity with Provision. Otherwise, they may be declared invalid by the Supreme or High Court through its power of judicial review.
    • Rigid Constitution: The division of powers established by the Constitution as well as supremacy of the constitution can be maintained only if the method of its amendment is rigid. It is necessary for both houses to agree to amend the constitution.
    • Independent judiciary: The constitution establishes an independent judiciary headed by the Supreme Court for two purposes: one, to protect the supremacy of the constitution, and two, to settle the disputes between the Centre and states or between the states.

    Besides the above federal features, the Indian constitution also possesses the following unitary features:

    • Strong Centre: The division of powers is in favour of the centre and unequal from a federal point of view. Firstly, the Union list contains more subjects than the state list, secondly, the more important subjects have been included in the union list and the Centre has overriding authority over the concurrent list.
    • Single constitution: The constitution of India embodies not only the constitution of the Centre but also those of the states. Both the Centre and the States must operate within this single frame.
    • Destructible nature of states: Unlike in other federations, the states in India have no right to territorial integrity. The parliament can change the area, boundaries, or name of any state.
    • Emergency provisions: The emergency provisions are contained in Part XVIII of the Constitution of India, from Articles 352 to 360. In the emergency provisions, the central government becomes all-powerful and the states go into total control of the Centre.
    • Single citizenship: Single citizenship means one person is the citizenship of the whole country. The constitution deals with citizenship from Articles 5 and 11 under Part 2.
    • All India services: In India, there are all India services (IAS, IPS and IFS) which are common to both the Centre and the states. These services violate the principle of federalism under the constitution.
    • Appointment of governor: The governor is appointed by the president. He also acts as an agent of the Centre. Through him, the Centre exercises control over the states.
    • Integrated election machinery: The election commission conducts elections for central and state legislatures. But the Election commission is constituted by the president and the states have no say in this matter.
    • Equality (= Equity) of representation: The states are given representation in the upper house on the basis of population. Hence, the membership varies from 1 to 31.
    • Integrated Judiciary: The term Integrated Judiciary refers to the fact that rulings made by higher courts bind lower courts. The Supreme Court of India incorporates all lower courts, from the Gram Panchayat to the High Courts. The Supreme Court is at the very top.
    • Union veto over State Bills:  The governor has the authority to hold certain sorts of laws passed by the state legislature for presidential consideration. The President has the authority to refuse to sign such bills not only in the first instance but also in the second.

    Reasons for a centralised federal structure

    There are at following reasons that informed India’s choice of a centralised federal structure.

    1. Partition of India and the concomitant concerns: The 1946 Objectives Resolution introduced by Nehru in the Assembly were inclined towards a decentralised federal structure wherein States would wield residuary powers.
    2. Reconstitution of social relations in a highly hierarchical and discriminatory society: The centralised structure would unsettle prevalent trends of social dominance, help fight poverty better and therefore yield liberating outcomes.
    3. Building of a welfare state: In a decentralised federal setup, redistributive policies could be structurally thwarted by organised (small and dominant) groups. Instead, a centralised federal set-up can prevent such issues and further a universal rights-based system.
    4. Alleviation of inter-regional economic inequality: Provincial interventions seemed to exacerbate inequalities. India’s membership in the International Labour Organization, the Nehru Report (1928), and the Bombay Plan (1944) pushed for a centralised system to foster socio-economic rights and safeguards for the working and entrepreneurial classes.
    5. Linguistic reorganization: It would not have been possible if India followed a rigid or conventional federal system. In other words, the current form of federalism in the Indian context is largely a function of the intent of the government of the day and the objectives it seeks to achieve.
    • From the above, it is clear that India has deviated from the traditional federal systems like the USA   and incorporated a large number of unitary features, tilting the balance of power in favor of the Centre.
    • Hence K C Wheare described the constitution of India as “quasi-federal”.

    Conclusion

    • The majoritarian tendencies sometimes are subverting the unique and indigenised set-up into an asymmetrical one.
    • Inter alia, delayed disbursal of resources and tax proceeds, bias towards electorally unfavourable States, evasion of accountability, imposition of language, weakening institutions, proliferation of political ideologies all signal towards the diminishing of India’s plurality or regionalisation of the nation.
    • While it would be safe to argue that our federal set-up is a conscious choice, its furthering or undoing, will depend on the collective will of the citizenry and the representatives they vote to power.

     

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  • What is Office-of-Profit?

    The Election Commission (EC) has sent a notice to Jharkhand CM over an office-of-profit charge against him for allotment of a mining lease in his name last year.

    Why in news?

    • Under Section 9A of the Representation of the People Act, 1951, the CM could face disqualification for entering into a government contract.
    • The Constitution of India does not define the Office of Profit. It has only mentioned it under Article 102 (1) and Article 191 (1).

    What is ‘Office of Profit’?

    • MPs and MLAs, as members of the legislature, hold the government accountable for its work.
    • The essence of disqualification is if legislators hold an ‘office of profit’ under the government, they might be susceptible to government influence, and may not discharge their constitutional mandate fairly.
    • The intent is that there should be no conflict between the duties and interests of an elected member.
    • Hence, the office of profit law simply seeks to enforce a basic feature of the Constitution- the principle of separation of power between the legislature and the executive.

    What governs the term?

    • At present, the Parliament (Prevention of Disqualification) Act, 1959, bars an MP, MLA or an MLC from holding any office of profit under the central or state government unless it is exempted.
    • However, it does not clearly define what constitutes an office of profit.
    • Legislators can face disqualification for holding such positions, which bring them financial or other benefits.
    • Under the provisions of Article 102 (1) and Article 191 (1) of the Constitution, an MP or an MLA (or an MLC) is barred from holding any office of profit under the Central or State government.

    An undefined term

    • The officials of the law ministry are of the view that defining an office of profit could lead to the filing of a number of cases with the Election Commission and the courts.
    • Also, once the definition is changed, one will also have to amend various provisions in the Constitution including Article 102 (1) (a) and Article 109 (1) (a) that deal with the office of profit.
    • It will have an overarching effect on all the other sections of the Constitution.

    Factors constituting an ‘office of profit’

    • The 1959 law does not clearly define what constitutes an office of profit but the definition has evolved over the years with interpretations made in various court judgments.
    • An office of profit has been interpreted to be a position that brings to the office-holder some financial gain, or advantage, or benefit. The amount of such profit is immaterial.
    • In 1964, the Supreme Court ruled that the test for determining whether a person holds an office of profit is the test of appointment.

    What is the ‘test of appointment’?

    Several factors are considered in this determination including factors such as:

    1. whether the government is the appointing authority,
    2. whether the government has the power to terminate the appointment,
    3. whether the government determines the remuneration,
    4. what is the source of remuneration, and
    5. the power that comes with the position.

     

     

  • No one can be forced to get vaccinated: SC

    The Supreme Court has upheld the right of an individual against forcible vaccination and the government’s COVID-19 vaccination policy to protect communitarian health.

    What is the news?

    • Vaccine hesitancy has been on rise these days.
    • The SC has found certain vaccine mandates imposed by the State governments and Union Territory administrations disproportionate.
    • They tend to deny access to basic welfare measures and freedom of movement to unvaccinated individuals.

    Right not to get vaccinated

    • The bench upheld the right to bodily integrity and personal autonomy of an individual in the light of vaccines and other public health measures.
    • Bodily integrity is protected under Article 21 (right to life) of the Constitution and no individual can be forced to be vaccinated.
    • The court struck a balance between individual right to bodily integrity and refuse treatment with the government’s concern for public health.

    Subject to scrutiny

    • When the issue is extended to “communitarian health”, the government was indeed “entitled to regulate issues”.
    • But its right to regulate by imposing limits to individual rights was open to judicial scrutiny.

    What is Vaccine Hesitancy?

    • The reluctance of people to receive safe and recommended available vaccines is known as ‘vaccine hesitancy’.
    • This was already a growing concern before the COVID-19 pandemic.
    • A framework developed from research done in high-income countries, called ‘the 5C model of the drivers of vaccine hesitancy’, provides five main individual person–level determinants for vaccine hesitancy:
    1. Confidence
    2. Complacency
    3. Convenience (or constraints)
    4. Risk calculation
    5. Collective responsibility

    Questions raised by vaccine hesitancy

    1. To end the pandemic, wherein no one is safe until everyone is safe, how relevant and strong are the arguments on freedom of choice?
    2. How is the fight against this global crisis impacted when prominent personalities assert on making a choice contrary to global good?
    3. Amid the raging pandemic and the persistent threat of future waves, how can vaccine scepticism and hesitancy be addressed worldwide?

    Why is it a cause of concern?

    • Re-surging of covid cases: Amid the ongoing Omicron surge, there have been reports pointing to the unvaccinated population driving the current surge in COVID-19 cases in Europe and US.
    • Risk of future waves and danger mutations: Large scale vaccine hesitancy could drag the pandemic longer by ensuring sustained continuance of the COVID-19 diseases and emergence of newer and deadlier variants.

    Various causes for vaccine hesitancy

    • Scepticism: There are many reasons for vaccine scepticism. Vaccine hesitancy is complex and context specific varying across time, place and vaccines.
    • Fake news: The conspiracy theories on social media have brought negative publicity for vaccination. These seem to have created propaganda against the vaccines.
    • Malfunctions: The sensational highlighting of vaccine fatalities event by the media is driving vaccine hesitancy to some extent.
    • Myths and beliefs: In some places radical religious factors have driven vaccine hesitancy resulting in myth against vaccines. This is also a leading factor of prevalence of Polio in Pakistan and Afghanistan.
    • Policy fluctuations: The frequent flip-flops by governments on the vaccination issue have resulted in a low trust among the general populace regarding vaccination.
    • Public trust: Vaccine hesitancy is also influenced by factors such as complacency, convenience and confidence.

    Way forward

    With no “one-size-fits-all” solution to vaccine hesitancy, contextualised and curated approaches are crucial.

    • Dispelling misinformation: There is the need to dispel all misinformation – unscientific, incorrect and unsubstantiated.
    • Counselling: WHO has put forth the BeSD (behavioural and social drivers) vaccination model, which emphasises “motivation” as the vanguard of human psychology during a vaccination drive.
    • Standard safeguards: The fact that vaccines meet the necessary safety standards set by the various organizations needs to be highlighted.
    • Vaccine equality: There is the need to ensure access of affordable, quality and timely vaccines to all.
    • Highlighting success: Countries must highlight the success observed due to the vaccination programmes, wherein despite rapid rise in cases the hospitalization and death rates remain within controllable limits.

     

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  • What is the Delhi Dual Governance Conundrum?

    New Delhi has been at the flashpoint of innumerable power struggles these days.

    Why in news?

    • In the absence of statehood for Delhi, there has been a prolonged confrontation on the relative powers of the territorial administration and the Union government.

    Dilemmas of Dual Governance

    • Article 239AA of the Constitution of India granted Special Status to Delhi among Union Territories (UTs) in the year 1991 through the 69th constitutional amendment.
    • It provided a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers.
    • That’s when Delhi was named as the National Capital Region (NCT) of Delhi.
    • As per this article – Public Order, Police & Land in NCT of Delhi fall within the domain and control of Central Government which shall have the power to make laws on these matters.
    • For remaining matters of State List or Concurrent List, in so far as any such matter is applicable to UTs, the Legislative Assembly shall have the power to make laws for NCT of Delhi

    [a] Centre-State Dispute

    • Delhi was given a fully elected legislative assembly and a responsible government through an amendment in the constitution in 1991.
    • Since 1991, Delhi had been made a UT with an assembly with “limited legislative powers”.
    • Cordial relations have prevailed between the Central and Delhi governments since 1996 and all differences have been resolved through discussions – with a few exceptions.

    [b] Lt. Governor vs the CM

    • The Article 239AA while conferring on the assembly the power to legislate on all matters in the state list as well as the concurrent list except land, police and public order – contained one sore point.
    • It said that in case of a difference between the L-G and the council of ministers, the matter shall be referred to the president by the LG for his decision and pending such decision the LG can take any action on the matter as he thinks fit.
    • It is this issue that the constitution bench of the Supreme Court resolved in 2018, when it said that the government does not have to seek the concurrence of the L-G on its decisions.
    • Any differences between them should be resolved to keep in view the constitutional primacy of representative government and co-operative federalism.

    It is after this judgement, the Centre brought up this Bill.

    [c] NCT of Delhi (Amendment) Bill, 2021

    • Among the major proposed amendments, one makes it explicitly clear that the term “government” in any law made by the Legislative Assembly shall mean the L-G.
    • This, essentially, gives effect to the former L-G 2015 assertion that “Government means the Lieutenant Governor of the NCT of Delhi appointed by the President under Article 239 and designated as such under Article 239 AA of the Constitution”.
    • The Bill adds that the L-G’s opinion shall be obtained before the government takes any executive action based on decisions taken by the Cabinet or any individual minister.

     

    [d] 

    Delhi Municipal Corporation (Amendment) Bill, 2022

     

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  • Tribes in news: Hattis of Himachal Pradesh

    The Centre is set to consider the Himachal Pradesh government’s request for inclusion of the Hatti community in the list of Scheduled Tribes in the state.

    Who are the Hattis?

    • The Hattis are a close-knit community who got their name from their tradition of selling homegrown vegetables, crops, meat and wool etc. at small markets called ‘haat’ in towns.
    • The Hatti community, whose men generally don a distinctive white headgear during ceremonies, is cut off from Sirmaur by two rivers called Giri and Tons.
    • Tons divides it from the Jaunsar Bawar area of Uttarakhand.
    • The Hattis who live in the trans-Giri area and Jaunsar Bawar in Uttarakhand were once part of the royal estate of Sirmaur until Jaunsar Bawar’s separation in 1815.
    • Due to topographical disadvantages, the Hattis living in the Kamrau, Sangrah, and Shilliai areas lag behind in education and employment.

    Societal norms of Hattis

    • The Hattis are governed by a traditional council called Khumbli, which like the khaps of Haryana, decide community matters.
    • The Khumbli’s power has remained unchallenged despite the establishment of the panchayati raj system.
    • The two clans have similar traditions, and inter-marriages are commonplace.
    • There is a fairly rigid caste system among the Hattis — the Bhat and Khash are the upper castes, while the Badhois are below them.
    • Inter-caste marriages have traditionally remained a strict no-no.

    Who are Paharis?

    • The proposal called for the inclusion of the “Paddari tribe”, “Koli” and “Gadda Brahman” communities to be included on the ST list of J&K.
    • The suggestion for the inclusion had come from the commission set up for socially and educationally backward classes in the UT.
    • The J&K delimitation commission has reserved six of the nine Assembly segments in the Pir Panjal Valley for STs.

    Back2Basics: Scheduled Tribes

    The above Article also provides for listing of scheduled tribes State/Union Territory wise and not on an all India basis.

    • 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 procedure to be followed in the matter of specification of scheduled tribes.

    How are STs notified?

    • As per the current procedure, each proposal for the scheduling of a new community as ST has to originate from the relevant State Government.
    • It is then sent to the Ministry of Tribal Affairs, which sends it to the Office of the Registrar General of India (RGI).
    • Once approved by the Office of the RGI, it is sent to the National Commission for Scheduled Tribes (NCST), and only after its approval is it sent to the Cabinet.

    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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  • SC Ruling on Sedition Law

    The Supreme Court has fixed May 5 for final hearing of the petitions challenging the constitutionality of the sedition law and made it clear that it will not brook any delay in the form of requests for adjournment.

    What is the Sedition Law?

    • Section 124A of the Indian Penal Code lays down the punishment for sedition. The IPC was enacted in 1860, under the British Raj.
    • The then British government in India feared that religious preachers on the Indian subcontinent would wage a war against the government.
    • Particularly after the successful suppression of the Wahabi/Waliullah Movement by the British, the need was felt for such law.
    • Throughout the Raj, this section was used to suppress activists in favor of national independence, including Tilak and Mahatma Gandhi, both of whom were found guilty and imprisoned.

    What is Sedition?

    • The Section 124A defines sedition as:

    An offence committed when “any person by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India”.

    • Disaffection includes disloyalty and all feelings of enmity.
    • However, comments without exciting or attempting to excite hatred, contempt or disaffection, will not constitute an offense.
    • Sedition is a non-bailable offense.
    • Punishment under Section 124A ranges from imprisonment up to three years to a life term with/without a fine.

    Sedition as a cognizable offense

    • Sedition was made a cognizable offense for the first time in history in India during the tenure of Prime Minister Indira Gandhi in 1973, that is, arrest without a warrant was now permissible.
    • In 1962 the Supreme Court of India interpreted the section to apply only if there is, say, “incitement to violence” or “overthrowing a democratically elected government through violent means”.

    Is it constitutionally valid?

    • Violative of FRs: Two high courts had found it unconstitutional after Independence, as it violated the freedom of speech and expression.
    • Reasonable restrictions: The Constitution was amended to include ‘public order’ as one of the ‘reasonable restrictions’ on which free speech could be abridged by law.
    • Kedar Nath Case: Thereafter, the Supreme Court, in Kedar Nath Singh v. State of Bihar (1962) upheld its validity.
    • Limited use: At the same time, it limited its application to acts that involve “intention or tendency to create disorder” or incitement to violence.
    • Strong criticism doesn’t amount to sedition: Thus, even strongly worded remarks, as long as they do not excite disloyalty and enmity, or incite violence, are not an offence under this section.

    Why the controversy now?

    • Frequent use: In recent times, the resort to this section is seen as disturbingly frequent.
    • Curbing dissent: Activists, cartoonists and intellectuals have been arrested under this section, drawing criticism from liberals that it is being used to suppress dissent and silence critics.
    • Misuse for propaganda: Authorities and the police who invoke this section defend the measure as a necessary step to prevent public disorder and anti-national activities.
    • Irrelevance: Many of them have also been detained under the National Security Act and UAPA.

    What is being debated about it?

    • Demand for its scrapping: Liberals and rights activists have been demanding the scrapping of Section 124A.
    • Provision is outdated: It is argued that the provision is “overbroad”, i.e., it defines the offence in wide terms threatening the liberty of citizens.
    • Various calls for its reconsideration: The Law Commission has also called for a reconsideration of the section.
    • Tyranny of the law: It has pointed that Britain abolished it more than a decade ago and raised the question of whether a provision introduced by the British to put down the freedom struggle should continue to be law in India.
    • Doctrine of severability: Some argue that a presumption of constitutionality does not apply to pre-constitutional laws as those laws have been made by foreign legislature or bodies.

    Way forward

    • India is the largest democracy in the world and the right to free speech and expression is an essential ingredient of democracy.
    • The sedition law should not be abolished as some measures are needed to check communal violence & insurgency activities like Naxals.
    • The definition of sedition should be narrowed down, to include only the issues pertaining to the territorial integrity of India as well as the sovereignty of the country.
    • Section 124A should not be misused as a tool to curb free speech.

     

    Try answering this PYQ:

    Q.With reference to Rowlatt Satyagraha, which of the following statements is/are correct?

    1. The Rowlatt Act was based on the recommendations of the ‘Sedition Committee’.
    2. In Rowlatt Satyagraha, Gandhiji tried to utilize the Home Rule League.
    3. Demonstrations against the arrival of Simon Commission coincided with Rowlatt Satyagraha.

    Select the correct answer using the code given below:

    (a) 1 only

    (b) 1 and 2 only

    (c) 2 and 3 only

    (d) 1, 2 and 3

     

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    Also read

    [Burning Issue] Should sedition law be scrapped?

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  • Goan politician accorded Lifetime Rank of Cabinet Minister

    Recently a politician in Goa was accorded the lifetime status of the rank of Cabinet Minister who was, a six-time Chief Minister of Goa and a legislator for a full 50 years. Hence a PIL has been filed in the High Court of Bombay at Goa.

    What is the “Lifetime Status of the rank of Cabinet minister”?

    • The former Chief Minister and former Speaker (of the Goa Legislative Assembly) had completed 50 years as a legislator.
    • The Cabinet decided that in future also, those who complete 50 years and hold posts like CM and Speaker will be given the Cabinet status even after their retirement.

    What is the PIL against this designation?

    • The PIL has urged the High Court to quash the notification of the government under which the person was conferred with the “lifetime status”.
    • It has contended that Goa has a 12-member Cabinet, and the conferment of Cabinet status results in the number of Cabinet ranks rising to 13, which exceeds the ceiling mandated by the Constitution.
    • This ceiling was mandated by the 91st Amendment which aimed to prevent jumbo Cabinets and the resultant drain on the public exchequer.

    How the 91st Amendment Act does relates here?

    • The Constitution (91st Amendment) Act, 2003 inserted clause 1A in Article 164.
    • It says the total number of Ministers, including the Chief Minister, in the Council of Ministers in a State shall not exceed 15% of the total number of members of the Legislative Assembly of that State.
    • It provided a condition that the number of Ministers, including the Chief Minister in a State shall not be less than twelve.
    • There are 40 seats in the unicameral Goa Assembly.

    Why is the designation problematic?

    • A cabinet minister for life would be entitled to 12 staff members – OSDs, support staff, peons, driver – which would cost the exchequer Rs 90 lakh a year.
    • The ‘Cabinet’ rank would also entitle him to government accommodation, vehicle and unlimited free travel for him and his spouse.
    • This is just none other case but political self-appeasement.

    Back2Basics: 91st Constitutional Amendment Act, 2003

    • It made the provisions to limit the size of Council of Ministers, to debar defectors from holding public offices, and to strengthen the anti-defection law.
    • The total number of ministers, including the Prime Minister, in the Central Council of Ministers shall not exceed 15% of the total strength of the Lok Sabha.
    • A member of either house of Parliament belonging to any political party who is disqualified on the ground of defection shall also be disqualified to be appointed as a minister.
    • The total number of ministers, including the Chief Minister, in the Council of Ministers in a state shall not exceed 15% of the total strength of the legislative Assembly of that state.
    • But, the number of ministers, including the Chief Minister, in a state shall not be less than 12.
    • A member of either House of a state legislature belonging to any political party who is disqualified on the ground of defection shall also be disqualified to be appointed as a minister.
    • The provision of the Tenth Schedule (anti-defection law) pertaining to exemption from disqualification in case of split by one-third members of legislature party has been deleted.
    • It means that the defectors have no more protection on grounds of splits.

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  • What laws govern tapping a phone; what are the checks in place?

    A lady IPS officer is facing an FIR in Mumbai for allegedly tapping the phones of a Rajya Sabha MP in Maharashtra.

    How are phones tapped in India?

    • In the era of fixed-line phones, mechanical exchanges would link circuits together to route the audio signal from the call.
    • When exchanges went digital, tapping was done through a computer.
    • Today, when most conversations happen through mobile phones, authorities make a request to the service provider.
    • The service provider is bound by law to record the conversations on the given number and provide these in real time through a connected computer.

    Who can tap phones?

    • The State Police have the powers to tap phones.
    • Ten Central agencies are authorised to do so: Intelligence Bureau, CBI, Enforcement Directorate, Narcotics Control Bureau, Central Board of Direct Taxes, Directorate of Revenue Intelligence, National Investigation Agency, R&AW, Directorate of Signal Intelligence, and the Delhi Police Commissioner.
    • Tapping by any other agency would be considered illegal.

    What laws govern this?

    • Phone tapping in India is governed by The Indian Telegraph Act, 1885.
    • Section 5(2) says that “on the occurrence of any public emergency, or in the interest of the public safety”, phone tapping can be done by the Centre or states.
    • It can be done in the interest of “public safety”, “sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence”.
    • There is an exception for the press: “press messages intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained, unless their transmission has been prohibited under this sub-section”.
    • The competent authority must record reasons for tapping in writing.

    Who authorises phone tapping?

    • Rule 419A of the Indian Telegraph (Amendment) Rules, 2007, says phone tapping orders “shall not be issued except by an order made by the Secretary to the GoI in the Ministry of Home Affairs.
    • It can be authorised by the Secretary to the State Government in-charge of the Home Department in the case of a State Government.
    • The order has to be conveyed to the service provider in writing; only then can the tapping begin.

    What happens in an emergency?

    • In unavoidable circumstances, such an order may be issued by an officer, not below the rank of a Joint Secretary to the GoI, who has been authorised by the Union Home Secretary, or the State Home Secretary.
    • In remote areas or for operational reasons, if it is not feasible to get prior directions, a call can be intercepted with the prior approval of the head or the second senior-most officer of the authorised law enforcement agency at the central level, and by authorised officers, not below the rank of Inspector General of Police, at the state level.
    • The order has to be communicated within three days to the competent authority, who has to approve or disapprove it within seven working days.
    • If the confirmation from the competent authority is not received within the stipulated seven days, such interception shall cease.
    • For example, during the 26/11 attacks in Mumbai, the authorities had no time to follow the complete procedure, and so a mail was sent to the service provider by the Intelligence Bureau.

    What are the checks against misuse?

    • The law is clear that interception must be ordered only if there is no other way of getting the information.
    • The directions for interception remain in force, unless revoked earlier, for a period not exceeding 60 days.
    • They may be renewed, but not beyond a total of 180 days.
    • Any order issued by the competent authority has to contain reasons, and a copy is to be forwarded to a review committee within seven working days.
    • At the Centre, the committee is headed by the Cabinet Secretary with the Law and Telecom Secretaries as members.
    • In states, it is headed by the Chief Secretary with the Law and Home Secretaries as members.
    • The committee is expected to meet at least once in two months to review all interception requests.

    What if misuse occurs?

    • When the Review Committee is of the opinion that the directions are not in accordance with the provisions referred to above it may set aside the directions.
    • It may order for destruction of the copies of the intercepted message or class of messages.
    • Under the rules, records pertaining to such directions shall be destroyed every six months unless these are, or are likely to be, required for functional requirements.
    • Service providers too are required to destroy records pertaining to directions for interception within two months of discontinuance of the interception.

    Is the process transparent?

    • There are multiple provisions aimed at keeping the process transparent.
    • Directions for interception are to specify the name and designation of the officer or the authority to whom the intercepted call is to be disclosed.
    • The directions have to be conveyed to designated officers of the service providers in writing by an officer not below the rank of SP or Additional SP or equivalent.
    • The officer is expected to maintain records with details of the intercepted call.
    • The designated nodal officers of the service providers are supposed to issue acknowledgment letters to the security/law enforcement agency within two hours on receipt of an intimation.
    • They are to forward every 15 days a list of interception authorisations received to the nodal officers of the security and law enforcement agencies for confirmation of authenticity.
    • It makes the service providers responsible for actions of their employees.
    • In case of unauthorised interception, the service provider may be fined or even lose its licence.

     

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