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Subject: Fundamental Rights,DPSP

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

  • A festival to salute India’s vibrant democracy

    Context

    This year we are celebrating our 73rd Republic Day. The Constitution has been our guiding force in the journey of the nation as a mature democracy among comity of nations.

    Historical background

    • The Constituent Assembly undertook intensive deliberations over a period of two years, 11 months and 18 days spread over 11 sessions, during which the Constitution of India took shape.
    • Our Constituent Assembly played a dual role after Independence, given the insurmountable task of nation-building.
    • Our Constituent Assembly had performed the functions of the provisional Parliament of India in the interval between the time our Constitution was enforced and the day when the new Parliament was formed following the first General Elections (October 25, 1951-February 21, 1952).
    • The Constituent Assembly of India acted as the first Parliament of independent India.

    Role of the Parliament

    • Representative institutions and democratic traditions have always been an integral part of our rich heritage
    • Our Parliament has been playing a pivotal role in the all-round development of the nation by adopting many parliamentary devices for ensuring free and fair discussions and dialogue.
    • We have to ensure that our institutions and governance ensure inclusivity and the participation of our population in our developmental journey, particularly our women, Scheduled Castes, Scheduled Tribes and all other marginalised sections become equal partners in our growth story.

    Ensuring the best legislative practices

    • Repository of the proceedings: To ensure that best legislative practices are shared, a national portal is being planned to serve as a repository of the proceedings of Parliament and all State/Union Territory legislatures in the country.
    • Research support is being provided to Members to help them participate better and meaningfully in matters brought before Parliament.
    • Review of the laws to make them relevant: It is also time in the journey of our nation to take stock and review laws that were enacted during the pre-Independence era so as to make them more relevant to our current requirements and future challenges.

    Conclusion

    Republic Day is an occasion for people’s representatives and all citizens of this proud nation to reaffirm faith in the ideals enshrined in our Constitution.

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  • Suspension of MLAs

    • Some legislators were suspended for one year by the Maharashtra Assembly for alleged disorderly conduct.
    • The unusually long period of suspension has been questioned by the Supreme Court, which is hearing a challenge to the Assembly’s action.

    A case in apex court

    • The court has reserved its judgment after hearing elaborate arguments.
    • The main question before the court is whether suspension for a whole year is valid.

    Suspending MLAs: A fact check

    • Each state has their individual rules for the conduct of assembly. These rules provides for the suspension of MLAs.
    • Under Rule 53 of the Maharashtra Legislative Assembly Rules, 1960, only the Speaker has the power to suspend MLAs indulging in unruly behavior.
    • Therefore, the motion to suspend cannot be put to vote as this would allow the Government to suspend as many Members of Opposition as it sees fit.

    Constitutional ground behind this suspension

    • The Court referred to Article 190 (4) of the Constitution which says that if for a period of 60 days, a member of a House, without its permission, is absent; the House may declare his or her seat vacant.
    • Suspension of MLAs beyond this period would lead to their disqualification.

    What did the Supreme Court observe?

    • Suspension of the MLAs would amount to punishing the constituencies as a whole.
    • Each constituency has equal amount of right to be represented in the House, observed the court.
    • The apex court observed that any state cannot create a constitutional void, a hiatus situation for any constituency.
    • It said the House cannot suspend a member beyond 59 days.

    What does the State government say?

    • Counsel for the State government has argued that there is no limitation on the power of the legislature to punish for breach of privilege or disorderly conduct in the course of its proceedings.
    • Once the power to punish a member for disorderly conduct is recognized, there can be no judicial review of the manner in which it is exercised.
    • Further, during suspension, a member continues to hold office, but only loses their voice in the legislature.

     

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  • How to fix the anti-defection loophole

    Context

    It is time that we took a fresh look at the Tenth Schedule to our Constitution.

    Shortcomings of the anti-defection law

    • Partisan nature of Speaker: Paragraph 3 of the Tenth Schedule was omitted by the Constitution (91st Amendment) Act, 2003, which came into effect on January 1, 2004.
    • Paragraph 3, as it existed prior to the amendment, protected defectors as long as one-third of the members of a political party formed a separate group. 
    • In the context of small assemblies, one-third of the members could easily be cobbled together.
    • Often, the speaker of the assembly was seen to be collaborating with the political party in power to protect the defectors under the one-third rule.
    • Such partisan conduct of the speakers is at the heart of a non-functional Tenth Schedule.
    • The seeming political bias of the speakers acting as tribunals is apparent from how disqualification petitions are dealt with.
    • We have seen this happen in Manipur, Goa, Madhya Pradesh, Uttarakhand and other jurisdictions.
    • Allowing two-third members to merge with another party: After the omission of paragraph 3, paragraph 4 allowed for the protection of defecting members provided two-thirds of the members of the legislative party merged with another political party.
    • This provision has invariably been misused.
    • Constitutional flaw in provisions of paragraph 4: Third, there is a constitutional flaw in the manner in which the provisions of paragraph 4 have been enacted.
    • Paragraph 4(1) stipulates that a member of the house will not be disqualified from his membership where his original political party merges with another political party and he claims that he and other members have become members of the other political party or a new political party is being formed by such merger.
    • However, paragraph 4(2) provides that such a merger would be deemed to have taken place only if not less than two-thirds of the members of the legislative party agreed to such a merger.
    • This allows for clandestine corruption where two-thirds of the members of the legislative party are bought over, by means fair or foul, to either topple governments or to strengthen a razor-thin majority of the party in power.
    • This makes the entire provision unworkable and unconstitutional.
    • Prolonging the proceedings: We have witnessed situations where, even though the provisions of paragraph 4 are not ex-facie attracted, the speaker of the assembly makes sure that the proceedings are interminably prolonged so that the term of the assembly comes to an end before the proceedings under the Tenth Schedule against those ex-facie defectors have been concluded.

    Need for urgent attention to Article 164(1B)

    • This allows for the toppling of governments by inducements of various kinds.
    • The motivation is that a fresh election allows the disqualified member to be re-elected.
    • He then becomes a member of the assembly once again, as its term is not over and can also be appointed a minister.
    • Under Article 164(1B), such a defection has no real consequences.

    Way forward

    • 1] Ensure impartiality of Speaker: Speakers, when elected must resign from the party to which they belong.
    • At the end of their term, there should be a cooling-off period before they can become members of any political party.
    • 2] Omit Paragraph 4 through Amendment: Paragraph 4 of the Tenth Schedule should be omitted by moving a constitutional amendment.
    • 3] Make disqualification for 5 years: All those disqualified under paragraph 2 of the Tenth Schedule should neither be entitled to contest elections nor hold public office for five years from the date of their disqualification.
    • Article 164(1B) should be omitted by moving a constitutional amendment.
    • Set time limit to decide petition for disqualification: All petitions for disqualification of members under paragraph 2 of the Tenth Schedule should be decided, by adopting a summary procedure, within a period of three months.

    Consider the question “Has anti-defection law succeeded in curbing the defections and ensuring the stability of the elected governments? Give reasons in support of your argument.”

    Conclusion

    If our polity wants to get rid of open corruption, it needs to take urgent steps to plug existing loopholes that have made the Tenth Schedule unworkable.

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    Back2Basics: Article 164(1B)

    • A member of the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council belonging to any political party who is disqualified for being a member of that House under paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as a Minister under clause (1) for duration of the period commencing from the date of his disqualification till the date on which the term of his office as such member would expire or where he contests any election to the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council, as the case may be, before the expiry of such period, till the date on which he is declared elected, whichever is earlier.

  • Supreme Court upholds validity of OBC quota in NEET admissions

    The Supreme Court has pronounced its decision upholding the constitutional validity of providing 27% quota to Other Backward Classes (OBC) in NEET All India Quota (AIQ) seats for UG and PG medical courses.

    What is the issue?

    • The petitioners, several NEET aspirants, had argued that since the top court had limited reservation to 50% in the Indira Sawhney judgment, the government should have first applied to the court before tinkering with the quota calculations.
    • The court further confirmed that there was no need for the Centre to have got the prior consent of the Supreme Court before introducing OBC quota in the AIQ seats under NEET.
    • The court reasoned that material affluence of certain individual members of a socially backward group or ‘creamy layer’ could not be used against the entire group to deny it the benefits of reservation.

    What is the background of this case?

    • The government introduced OBC/EWS quota before the counselling of NEET counselling.
    • The candidates applying for NEET PG were not provided any information on the distribution of the seat matrix.
    • Such information is provided by the counselling authority only after the counselling session is to begin.

    Key observations of the Apex Court

    • The SC has held that reservation is not at odds with merit.
    • It observed that ‘merit’ could not be narrowed to the limit of success in open competitive exams.
    • Merit of a person is a sum total of “lived experiences” and his or her struggle to overcome cultural and social setbacks, observed the SC.

    Why is this a landmark judgment?

    • Merit cannot be reduced to narrow definitions of performance in an open competitive examination, which only provides formal equality of opportunities , said the SC.
    • Current competencies are assessed by competent examinations but are not reflective of excellence, capability and potential of an individual.

    Major justifications for Reservations

    • Exams did not reflect how social, economic and cultural advantages that accrued to certain classes contributed to their success in them, the court noted.
    • Examinations are not a proxy for merit.
    • Merit should be socially contextualized and re-conceptualized.
    • Reservation is not at odds with merit but furthers its distributive impact, Justice Chandrachud observed.

    Constitutionality of the decision

    • The court held that the power of the State governments to provide reservations under Article 15 (4) and (5) of the Constitution was not an “exception” to Article 15 (1).
    • It enshrines the mandate that “the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, and place of birth or any of them”.
    • The court held that the power of the State government to craft reservations for the OBC amplified the principle of “substantive equality” manifested through Article 15 (1).

    Implications: Victory for States

    • In a significant victory for States such as Tamil Nadu, the court confirmed their power to make “special provisions” and provide reservations in educational admissions, whether in aided or unaided institutions.
    • TN provides government jobs for the advancement of “any socially and educationally backward classes of citizens or for the SCs and STs”.

     

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  • The Question of OBC Reservation in Local Bodies

    The latest order in Rahul Ramesh Wagh v. State of Maharashtra &Ors makes it mandatory that the principles laid down by the Supreme Court for providing reservation to OBCs in local bodies shall be followed across the country.

    Let us understand the Case

    • Maharashtra had constituted a Commission to ascertain the backwardness of OBCs in June 2021.
    • But without waiting for an empirical report, an ordinance was promulgated to amend the Maharashtra Zilla Parishads Act, Panchayat Samitis Act and the Maharashtra Village Panchayat Act.
    • They were aimed to conduct local body elections with OBC reservation.
    • This was struck down by the Supreme Court.

    The latest case arose out of the challenge made to the ordinance promulgated on the teeth of the Supreme Court judgments by the Governor of Maharashtra to conduct the local body elections by providing 27% reservation to OBCs.

    What did the SC observe now?

    • Reservation to OBCs in local body elections without empirical base can no more be sustainable in law.
    • The latest order in RR Wagh v. State of Maharashtra & others makes it mandatory that the principles laid down by the Supreme Court for providing reservation to OBCs in local bodies shall be scrupulously followed across the country.

    Which principles is the apex court talking about?

    • A five-judge Constitution Bench in the K. Krishnamurthy (Dr.) v. Union of India (2010) judgment said that barriers to political participation are not the same as barriers to education and employment.
    • Though reservation to local bodies is permissible, the top court declared that the same is subject to three conditions:
    1. to set up a dedicated Commission to conduct empirical inquiry into the nature of the backwardness in local bodies
    2. to specify the proportion of reservation required to be provisioned local body-wise
    3. such reservation shall not exceed aggregate of 50% cap of the total seats reserved for SCs/STs/OBCs taken together
    • This is famously referred as ‘Triplet Test’.

    Major takeaways of K. Krishnamurthy Case

    In this case, the Supreme Court had interpreted Article 243D(6) and Article 243T(6), which permit reservation by enactment of law for backward classes in local bodies respectively.

    • It held that barriers to political participation are not the same as that of the barriers that limit access to education and employment.
    • However, for creating a level playing field, reservation may be desirable as mandated by the aforementioned conditions.
    • Above articles provide a separate constitutional basis for reservation, as distinct from what are conceived under Article 15 (4) and Article 16 (4) which form the basis for reservation in education and employment.

    Reception of the Krishnamurthy Judgment

    • The Indian political class usually displays apathy to the law declared by the courts as contrary to the enacted law.
    • The 2010 judgment was not acted upon and the constitutionality of the enacted reservation was challenged.
    • This resulted in the 2021 judgment of a three-judge Bench of the Supreme Court.

    What can be concluded from the aspirant’s perspective?

    • Maharashtra Legislative Assembly passed a resolution to stall the local body elections in the wake of the judicial interference.
    • Elections, undoubtedly, must be held on time.
    • Since Judiciary does not usually interfere into Elections, States often seek to bypass the OBC reservation issues.

    Conclusion

    • Had the governments stuck to the law as mandated by Article 141 of the Constitution, this quandary wouldn’t have arisen.
    • Much of the judiciary’s time could have been saved.
    • Rule of law is not just a set of letters, but it has to be followed in spirit.

    Back2Basics: Article 141 of the Constitution

    • It stipulates that the law declared by the Supreme Court shall be binding on all Courts within the territory of India.
    • Thus, the general principles laid down, by the Supreme Court are binding on each individual including those who are not a party to an order.

     

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  • Democratise and empower city governments

    Context

    The “State Finances, Study of Budgets of 2021-22” report, correctly identify the role of the city governments in meeting the challenges the pandemic has thrown up, the report also points to the draining of resources.

    What the RBI report says about the role of local governments

    • The report highlights the frontline role played by the third-tier governments by implementing containment strategies, healthcare.
    • Due to this, their finances have come under severe strain, forcing them to cut down expenditures and mobilise funding from various sources.
    • Need for functional autonomy: The RBI further commented that the functional autonomy of civic bodies must increase and their governance structure strengthened.
    • Empowering financially: This could happen by ‘empowering them financially through higher resource availability.
    • The RBI did echo the recommendations of the 15th Finance Commission report on local bodies that emphasised city governance structures and financial empowerment.
    • Limited coverage of property tax: The RBI report also highlights the limited coverage of property tax and its failure in shoring up municipal corporation revenues.
    • Organisation for Economic Co-operation and Development (OECD) data show that India has the lowest property tax collection rate in the world — i.e., property tax to GDP ratio. 

    Issues faced by city governments

    • During the pandemic, while leaders from the Prime Minister to Chief Ministers to District Magistrate were seen taking a call on disaster mitigation strategies, city mayors were found missing.
    • The old approach of treating cities as adjuncts of State governments continues to dominate the policy paradigm.
    • The general approach towards urban empowerment has remained piecemeal in India.
    • The first intervention to understand ‘the urban’ (though there are references in the Five Year plans) and plan with a pan-Indian vision took place in the 1980s when the National Commission On Urbanisation was formed with Charles Correa as its chairperson.
    • Another important intervention was in the first half of the 1990s with the Constitution 73rd and 74th Amendments. 
    • The latter refers to urban reforms — empowering urban local bodies to perform 18 functions listed in the 12th Schedule.
    • However, there is no mention of financial empowerment.
    • The only exception to the rule has been the people’s plan model of Kerala where 40% of the State’s plan budget was for local bodies (directly) with a transfer of important subjects such as planning, etc.

    How to achieve functional autonomy for city government

    • This should happen with three F’s: the transfer of ‘functions, finances and functionaries’ to city governments.
    • There are nearly 5,000 statutory towns and an equal number of census towns in India.
    • Nearly 35% of the population lives in urban centres.
    • And, nearly two-thirds of the country’s GDP stems from cities and almost 90% of government revenue flows from urban centres.
    • Before value-added tax and other centralised taxation systems, one of the major earnings of cities used to be from octroi.
    • But this source of revenue collection was taken away by the State and the central governments.
    • Instead, finance commissions recommended grants to urban local bodies based on a formula of demographic profile. 
    • In such a situation, it is difficult for the towns to sustain their ability to perform their bare minimum functions, especially with the latest Pay Commission recommendations.
    • This has resulted in burdening people more with taxes and further privatisation/outsourcing of the services of the municipalities.
    • The often-cited example is how cities in the Scandinavian countries manage their functions well — from city planning to mobility to waste management.
    • But the truth is that a chunk of the income tax from citizens is given to city governments.
    • A committee formed by the Ministry of Housing and Urban Development to review the 74th constitutional amendment recommended that 10% of income tax collected from the cities was to be given back to them as a direct revenue grant from the central government.

    Way forward

    • 1] Cities must be treated as important centres of governance, where democratic decentralisation can bring in amazing results.
    • There will be transparency and adequate participation of the people.
    • 2] Cities should not be considered as entrepreneurship spaces where the sole driving force is to make them competitive to attract investments.
    • 3] The resources required for quantitative and qualitative data must be immediately provided to the cities to ensure a disaster risk reduction plan keeping vulnerable communities in mind.
    • 4] A piecemeal approach such as the concept of ‘smart cities’ must be shunned altogether.
    • This approach further widens the gap between different sets of people.
    • 5] Leadership in the cities must be elected for a term of five years. 
    • Likewise, the third F, i.e., functionaries, must be transferred to the cities with a permanent cadre.

    Consider the question “The functional autonomy of civic bodies must be increased and their governance structure strengthened. This could happen by ‘empowering them financially through higher resource availability’. Comment.” 

    Conclusion

    Thus, in this exercise by the RBI, the good part is that there has least been a mention of cities, with local bodies as important centres of governance.

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  • National Commission for Safai Karamcharis gets 3-year extension

    The Union Cabinet has approved a three-year extension of the tenure of the National Commission for Safai Karamcharis (NCSK) that was set to end on March 31.

    About National Commission for Safai Karamcharis

    • The commission was set up in 1993 under the NCSK Act 1993 for a period of three years, which has been extended since then.
    • The NCSK Act is however ceased to have effect from February 29, 2004.
    • After that, the tenure of the NCSK has been extended as a non-statutory body from time to time through resolutions.

    Why was NCSK set up?

    • The commission helps in coming up with programmes for the welfare of sanitation workers.
    • It also monitors the implementation of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013.
    • Till December 31, 2021, 58,098 manual scavengers had been identified.

    Need for eliminating Manual Scavenging

    • Undignified life (all the 6 Fundamental Rights are compromised, directly or indirectly).
    • It directly perpetuates castism.
    • Modern, Secular India has no place for such “professions”.
    • It no way suits India’s rising global profile – ‘super power’ aspirations.
    • Women are mostly disprivileged since most manual scavengers are dalit women.

    What else needs to be done?

    • Though the government has taken many steps for the upliftment of the safai karamcharis, the deprivation suffered by them in socio-economic and educational terms is still far from being eliminated.
    • Although manual scavenging has been almost eradicated, sporadic instances of their deaths do occur.

    Way forward

    • There is a continued need to monitor the various interventions and initiatives of the government for welfare of safai Karamcharis.
    • The govt must strive to achieve the goal of complete mechanization of sewer/septic tanks cleaning in the country and rehabilitation of manual scavengers.

    Try this question from CSP 2016:

    Q.’Rashtriya Garima Abhiyaan’ is a national campaign to:

    (a) rehabilitate the homeless and destitute persons and provide them with suitable sources of livelihood

    (b) release the sex workers from their practice and provide them with alternative sources of livelihood

    (c) eradicate the practice of manual scavenging and rehabilitate the manual scavengers

    (d) release the bonded labourers from their bondage and rehabilitate them

     

    [wpdiscuz-feedback id=”jine99bkvt” question=”Please leave a feedback on this” opened=”1″]Post your answers here:[/wpdiscuz-feedback]

     

    Also try this question from our AWE initiative:

    Manual scavenging has been called as a worst surviving symbol of untouchability. Critically discuss the measures taken by Government to eradicate this practice? (250 W)

     

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  • How the Seventh Schedule affects delivery of public goods

    Context

    Without delegation of funds, functions and functionaries, local governments are unable to respond to pressure from citizens who demand greater efficiency.

    Background of the Seventh Schedule

    •  Article 246 of the Constitution mentions three lists in the Seventh Schedule — union, state and concurrent lists.
    • The present Seventh Schedule and union (at that time Federal) list, state (at that time Provincial) list and concurrent lists are inherited from that 1935 piece of legislation.
    • It states that “Notwithstanding anything in the two next succeeding subsections, the Federal Legislature has, and a Provincial Legislature has not, power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule to this Act.”

    Delivery of public goods

    • Ignoring that narrow and technical definition of public good, loosely, we understand “public good” as something that must be delivered by the government.
    • It cannot, or should not, be delivered by the private sector.
    • Notwithstanding the use of private security guards, most people will agree “law and order” is a public good.
    • Most public goods people will think of are efficiently delivered at the local government level, not Union or state level.
    •  There is a Seventh Schedule issue that is thus linked to the insertion of a local body list.
    • Countervailing pressure by citizens increasingly demands efficient delivery of such public goods.
    • But without delegation of funds, functions and functionaries, presently left to the whims of state governments, local governments are unable to respond.

    Need for the review of the Seventh Schedule Lists

    • No local body list: Most public goods people will think of are efficiently delivered at the local government level, not Union or state level.
    • There is a Seventh Schedule issue that is thus linked to the insertion of a local body list.
    •  But without delegation of funds, functions and functionaries, presently left to the whims of state governments, local governments are unable to respond.
    • The Rajamannar Committee — formally known as Centre-State Relations Inquiry Committee suggested constitution of a High Power Commission to examine the entries of Lists I and III in the Seventh Schedule to the Constitution and suggest redistribution of the entries,”.
    • Changes in the past led to greater centralisation: Items have moved from the state list to the concurrent list and from the concurrent list to the union list.
    • Such limited movements have reflected greater centralisation, such as in 1976.
    •  N K Singh, Chairman of 15th Finance Commission has also often made this point, in addition to scrutiny of Article 282.

    Conclusion

    For the sake of better governance, it’s not an issue that should be ducked and the basic structure doctrine doesn’t stand in the way.

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  • Hate speech: SC seeks response from govt.

    The Supreme Court has asked the Ministry of Home Affairs (MHA) and the police to respond to petitions that people accused of delivering hate speeches at a religious conference in Haridwar have not been arrested yet.

    What is ‘Hate Speech’?

    • There is no specific legal definition of ‘hate speech’.
    • The Law Commission of India, in its 267th Report, says: “Hate speech generally is an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like …
    • Thus, hate speech is any word written or spoken, signs, visible representations within the hearing or sight of a person with the intention to cause fear or alarm, or incitement to violence.”
    • In general, hate speech is considered a limitation on free speech that seeks to prevent or bar speech that exposes a person or a group or section of society to hate, violence, ridicule or indignity.

    How is it treated in Indian law?

    • Provisions in law criminalize speeches, writings, actions, signs and representations that foment violence and spread disharmony between communities and groups and these are understood to refer to ‘hate speech’.
    • Sections 153A and 505 of the Indian Penal Code are generally taken to be the main penal provisions that deal with inflammatory speeches and expressions that seek to punish ‘hate speech’.

    [I] Section 153A:

    • Promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony’, is an offence punishable with three years’ imprisonment.

    [II] Section 505:

    505(1): Statements conducing to public mischief

    • The statement, publication, report or rumour that is penalized under Section 505(1) should be one that promotes mutiny by the armed forces, or causes such fear or alarm that people are induced to commit an offence against the state or public tranquility.
    • This attracts a jail term of up to three years.

    505(2): It is an offence to make statements creating or promoting enmity, hatred or ill-will between classes.

    505(3): Same offence will attract up to a five-year jail term if it takes place in a place of worship, or in any assembly engaged in religious worship or religious ceremonies.

    What has the Law Commission proposed?

    The Law Commission has proposed that separate offences be added to the IPC to criminalize hate speech quite specifically instead of being subsumed in the existing sections concerning inflammatory acts and speeches.

    [A] Inserting two sections

    • It has proposed that two new sections, Section 153C and Section 505A, be added.

    Section 153C

    It is an offence if anyone-

    • Uses gravely threatening words, spoken or written or signs or visible representations, with the intention to cause fear or alarm OR
    • Advocates hatred that causes incitement to violence, on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe

    Section 505A

    • It proposes to criminalize words, or display of writing or signs that are gravely threatening or derogatory, within the hearing or sight of a person, causing fear or alarm or, with intent to provoke the use of unlawful violence against that person or another”.

    [B] Imprisonment

    • Section 153C: two-year jail term for this and/or a fine of ₹5,000 or both
    • Section 505A: prison term of up to one year and/or a fine up to ₹5,000

    Other committees’ recommendations

    • Similar proposals to add sections to the IPC to punish acts and statements that promote racial discrimination or amount to hate speech have been made by the M.P. Bezbaruah Committee and the T.K. Viswanathan Committee.
    • At present, the Committee for Reforms in Criminal Laws, which is considering more comprehensive changes to criminal law, is examining the issue of having specific provisions to tackle hate speech.

    Why regulate hate speech?

    • Creates social divide: Individuals believe in stereotypes that are ingrained in their minds and these stereotypes lead them to believe that a class or group of persons are inferior to them and as such cannot have the same rights as them.
    • Threat to peaceful co-existence: The stubbornness to stick to a particular ideology without caring for the right to co-exist peacefully adds further fuel to the fire of hate speech.

    Issues in regulating hate speech

    • Powers to State: Almost every regulation of speech, no matter how well-intentioned, increases the power of the state.
    • Hate speeches are Political: The issue is fundamentally political and we should not pretend that fine legal distinctions will solve the issue.
    • Legal complications: An over-reliance on legal instruments to solve fundamentally social and political problems often backfires.

    Way ahead

    • Subjects like hate speeches become a complex issue to deal with, in a country like India which is very diverse, as it was very difficult to differentiate between free and hate speech.
    • There are many factors that should be considered while restraining speeches like strong opinions, offensive comments towards certain communities, the effect on values like dignity, liberty and equality.
    • We all have to work together and communicate efficiently for our country to be a healthy place to live in.

     

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  • Need to recast the selection process of the ECs

    Context

    The attendance of the Chief Election Commissioner (CEC) and his Election Commissioner (EC) colleagues at an “informal” meeting with the Principal Secretary to the Prime Minister has brought renewed focus on the independence and impartiality of the Election Commission of India (ECI).

    Need for changes in the appointment process

    • The changes in the appointment process for ECs can strengthen ECI’s independence, neutrality and transparency. 
    • The appointment of ECs falls within the purview of Article 324(2) of the Constitution, which establishes the institution.
    • Article 324(2) contains a ‘subject to’ clause which provides that both the number and tenure of the ECs shall be “subject to provisions of any law made in that behalf by Parliament, be made by the President.”
    • Apart from enacting a law in 1989 enlarging the number of ECs from one to three, Parliament has so far not enacted any changes to the appointment process.
    • In 1975 itself, the Justice Tarkunde Committee recommended that ECs be appointed on the advice of a Committee comprising the Prime Minister, Lok Sabha Opposition Leader and the Chief Justice.
    • This was reiterated by the Dinesh Goswami Committee in 1990 and the Law Commission in 2015.
    • The 4th Report (2007) of the Second Administrative Reforms Commission additionally recommended that the Law Minister and the Deputy Chairman of the Rajya Sabha be included in such a Collegium.
    • Violation of Article 14 and 324: Three Writ Petitions, with one pending since 2015, are urging the Supreme Court to declare that the current practice of appointment of ECs by the Centre violates Article 14, Article 324(2), and Democracy as a basic feature of the Constitution.
    • Precedent does exist in the case of Rojer Mathew v South Indian Bank Ltd, to argue against the Executive being the sole appointer for a quasi-judicial body.
    • The Supreme Court had recognised that “Election Commission is not only responsible for conducting free and fair elections but it also renders a quasi-judicial function between the various political parties including the ruling government and other parties.”
    • In such circumstances, the executive cannot be a sole participant in the appointment of members of Election Commission as it gives unfettered discretion to the ruling party.

    Way forward

    • Establishing a multi-institutional, bipartisan committee for fair and transparent selection of ECs can enhance the perceived and actual independence of ECI.
    • Such a procedure is already followed with regard to other Constitutional and Statutory Authorities such as the Chief Information Commissioner, Lokpal, Vigilance Commissioner, and the Director of the Central Bureau of Intelligence.

    Consider the question “What is the procedure for the appointment of Election Commissioners? What are the issues with this procedure? Suggest the way forward.”

    Conclusion

    ECI’s constitutional responsibilities require a fair and transparent appointment process that is beyond reproach, which will reaffirm our faith in this vital pillar of our polity.

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