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Subject: Fundamental Rights,DPSP

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

  • Back in news: Central Vista Project

    The redevelopment of central vista avenue in New Delhi, where the Republic Day parade is scheduled to be held, has been delayed by a couple of days due to heavy rainfall.

    Central Vista Project

    • The project aims to renovate and redevelop 86 acres of land in Lutyens’s Delhi.
    • In this, the landmark structures of the government, including Parliament House, Rashtrapati Bhavan, India Gate, North Block and South Block, etc. stand.
    • This dream project of redeveloping the nation’s administrative heart was announced by the Ministry of Housing and Urban Affairs back in September 13, 2019.

    This project has three main parts:

    1. New parliament building
    2. New secretariat complex to bring all the central govt ministries in one place
    3. Development of the Rajghat and the area around it
    • This project will involve demolition of some non-heritage buildings in the area, and construction of new buildings in place of them.

    Why need this Project?

    The most significant aspect of the project is the construction of a new parliament building.  There are several reasons for needing a new building.

    • Due to increased population, which has almost quadrupled since independence, there is a need to increase the number of Lok Sabha constituencies through delimitation.
    • Similarly, the central hall of the parliament, used to hold joint sessions, actually does not have enough seats for the MPs of both houses.
    • During joint sessions, temporary chairs are placed on the aisles so that all the members can sit.
    • This is certainly not a dignified scene for the parliament of the largest democracy in the world.
    • The infrastructure of the parliament was also antiqued, as they were added at various times as and when required.

    Due to these reasons, a pressing need was felt to construct a new parliament building.

    Significance of the project

    • Modernising parliament’s facilities: The new Parliament building will be India’s first purpose-designed parliament, equipped with state-of-the-art infrastructure to meet all needs of an expanded parliament.
    • Improving productivity and efficiency: All ministries of the government will be consolidated in one place and will be served by highly energy-efficient and sustainable infrastructure.
    • Strengthening cultural and recreational facilities: The National Museum will be relocated and conceptualized to present the rich heritage and achievements of the nation.
    • Providing modern and secure infrastructure: A modern, secure, and appropriately equipped executive enclave is proposed to house executive offices and facilities.
    • Providing residential facilities for the PM: Modern and secure residential facilities for the vice president and the PM are proposed to the north of North Block and south of South Block respectively.
    • Cultural significance: The overall objective of works planned on the Central Vista is to ensure environmental sustainability, restore the vista’s architectural character, protect its heritage buildings, expand and improve public space, and to extend its axis.

     

    Also read about the

    New Parliament Building

    Back2Basics: Making of New Delhi

    • The Central Vista was designed by Edwin Lutyens and Herbert Baker, to house the capital of British India.
    • The top of the Raisina Hill and adjacent hills in the area was flattened to create space for the buildings.
    • At his coronation as Emperor of India on December 12, 1911, Britain’s King George V had announced the transfer of the seat of the Government from Calcutta to the ancient Capital of Delhi.
    • Thereafter, a 20-year-long project to build modern New Delhi was spearheaded by architects Edwin Lutyens and Herbert Baker.
    • They built Parliament House, Rashtrapati Bhavan, North and South Blocks, Rajpath, India Gate, National Archives and the princes’ houses around India Gate.
    • Thus, New Delhi was unveiled in 1931.

     

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  • MHA seeks more time to frame CAA rules

    The Ministry of Home Affairs (MHA) has sought another extension from parliamentary committees to frame the rules of the Citizenship (Amendment) Act (CAA), 2019.

    What is Citizenship Amendment Act (CAA), 2019?

    • The act is sought to amend the Citizenship Act, 1955 to make Hindu, Sikh, Buddhist, Jain, Parsi, and Christian illegal migrants from Afghanistan, Bangladesh, and Pakistan, eligible for citizenship of India.
    • In other words, it intends to make it easier for non-Muslim immigrants from India’s three Muslim-majority neighbours to become citizens of India.
    • Under The Citizenship Act, 1955, one of the requirements for citizenship by naturalization is that the applicant must have resided in India during the last 12 months, as well as for 11 of the previous 14 years.
    • The amendment relaxes the second requirement from 11 years to 6 years as a specific condition for applicants belonging to these six religions, and the aforementioned three countries.
    • It exempts the members of the six communities from any criminal case under the Foreigners Act, 1946 and the Passport Act, 1920 if they entered India before December 31, 2014.

    Key feature: Defining illegal migrants

    • Illegal migrants cannot become Indian citizens in accordance with the present laws.
    • Under the CAA, an illegal migrant is a foreigner who: (i) enters the country without valid travel documents like a passport and visa, or (ii) enters with valid documents, but stays beyond the permitted time period.
    • Illegal migrants may be put in jail or deported under the Foreigners Act, 1946 and The Passport (Entry into India) Act, 1920.

    Exceptions

    • The Bill provides that illegal migrants who fulfil four conditions will not be treated as illegal migrants under the Act.  The conditions are:
    1. they are Hindus, Sikhs, Buddhists, Jains, Parsis or Christians;
    2. they are from Afghanistan, Bangladesh or Pakistan;
    3. they entered India on or before December 31, 2014;
    4. they are not in certain tribal areas of Assam, Meghalaya, Mizoram, or Tripura included in the Sixth Schedule to the Constitution, or areas under the “Inner Line” permit, i.e., Arunachal Pradesh, Mizoram, and Nagaland.

    Controversy with the Act

    • Country of Origin: The Act classifies migrants based on their country of origin to include only Afghanistan, Pakistan and Bangladesh.
    • Other religious minorities ignored: It is unclear why illegal migrants from only six specified religious minorities have been included in the Act.
    • Defiance of purpose: India shares a border with Myanmar, which has had a history of persecution of a religious minority, the Rohingya Muslims.
    • Date of Entry: It is also unclear why there is a differential treatment of migrants based on their date of entry into India, i.e., whether they entered India before or after December 31, 2014.

    Way forward

    • India is a constitutional democracy with a basic structure that assures a secure and spacious home for all Indians.
    • Being partitioned on religious grounds, India has to undertake a balancing act for protecting the religious minorities in its neighbourhood.
    • These minorities are under constant threat of persecution and vandalism.
    • India needs to balance the civilization duties to protect those who are prosecuted in the neighbourhood.

     

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  • The Personal Data Protection Bill conundrum

    Context

    The Joint Committee report on the Bill has failed to provide robust draft legislation ensuring the privacy of citizens.

    Background of the Personal Data Protection Bill

    •  The Puttaswamy judgment held that the right to privacy is a fundamental right.
    • The Puttaswamy judgment and the Justice B.N. Srikrishna committee report led to the Personal Data Protection Bill of 2019.
    • The Joint Committee report on the Bill has failed to provide a robust draft legislation ensuring the privacy of citizens.

    Issues with the Joint Committee report on Personal Data Protection Bill

    • Division into Government and private domains: The report has divided the digital world into two domains — government and private.
    • This division is based on the presumption that the question of right to privacy emerges only where operations and activities of private entities are concerned.
    • Exemption to government and government agencies: Clause 12 of the Bill provides exemptions for the government and government agencies and Clause 35 exempts government agencies from the entire Act itself. 
    • Clause 12, which says personal data can be processed without consent for the performance of any function of the state, is an umbrella clause that does not specify which ministries or departments will be covered.
    • The issue with the defining harm: The Bill says, “harm includes any observation or surveillance that is not reasonably expected by the data principal”.
    • This means if you install any software in your computer and the software violates the principle of privacy and data get leaked, the complaint of the data principal will not be legally tenable as the defence will be that ‘once you have installed the software, you should have reasonably expected this level of surveillance’.
    • The government can use these provisions as a means of control and surveillance.
    • The Committee has failed to provide formidable firewalls to protect the privacy of individuals and has also carved out a mechanism for government control over personal data.
    • Against the Supreme Court judgement: The provisions are ultra vires of the judgment on privacy.
    • Inclusion of non-personal data harms the economy:  By including non-personal data within the ambit of the Bill, the Joint Committee has put a huge compliance burden on the economy.
    • This will hit the MSME sector and small businesses harder as technical processes involving data-sharing are very expensive.
    • The government-constituted panel headed by S. Gopalkrishnan also opposed the idea of including non-personal data in the Bill.
    • Mandatory data localisation, it is estimated, will squeeze the economy by 0.7-1.7%.
    • Hamper the smooth cross-border flow of data: This may also invite similar measures by other sovereign countries which will hamper smooth cross-border flow of data.

    Concerns with the Data Protection Authority

    • For compliance with the provisions of the Act, a data protection authority (DPA) has to be appointed.
    • It is doubtful whether a single authority will be able to discharge so many functions in an efficient manner.
    • Concern with appointment: Unlike the Justice Srikrishna committee report which provided for a judicial overlook in the appointments of the DPA, the Bill entrusts the executive with the appointments.
    •  Although the Joint Committee report expanded the committee, the power to appoint the panelists vests with the Central government.
    • Lack of independence: Clause 86 says, “Authority should be bound by the directions of the Central Government under all cases and not just on questions of policy”.
    • This weakens its independence and gives the government excessive control.
    • Violation of federalism: There is internal data flow and the States are key stakeholders in the process.
    • Even if the proposed central authority issues directions to allow processing of data on the grounds of ‘public order’, it is important to note that ‘public order’ is an entry in the State List. 

    Consider the question “What are the issues with the provision in the Personal Data Protection Bill, 2019? Suggest the way forward.” 

    Conclusion

    The report has raised more questions than it has solved. At the time of passage of the Bill, loopholes must be plugged so that India can have a robust data protection law.

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  • Economically Weaker Sections (EWS): As defined by Govt Panel

    The government has accepted the report by a committee under the Ministry of Social Justice and Empowerment, which examined the income criteria for determining who are to be included among the EWS.

    EWS Quota: A Backgrounder

    • On July 29 last year, the Centre had issued a notification for implementing 10% reservation for EWS along with 27% for OBC within these courses.
    • Following the petitions, the Supreme Court has stayed counseling for admission until the matter is decided.
    • The NEET notification followed the same criteria for determining EWS as mentioned in a notification from the Department of Personnel and Training (DoPT).

    Inception of EWS Quota

    • EWS reservation was granted based on the recommendations of a commission headed by Major General (retd) S R Sinho.
    • The Commission for Economically Backward Classes was constituted by the then UPA government in 2005, and submitted its report in July 2010.
    • Based on this, the Cabinet in January 2019 decided to amend the Constitution (103rd Amendment) to provide reservation to EWS.

    Prime basis: Income criteria

    • The criteria include a Rs 8 lakh income ceiling for inclusion in EWS — which is the same as the criterion for deciding the “creamy layer” among the OBCs (those who are not in government).
    • The notification said income shall include income from all sources i.e. salary, agriculture, business, profession, etc for the financial year prior to the year of application.
    • Another criterion is that a person whose family owns or possesses 5 acres of agricultural land or more will be excluded from EWS.

    Why was the new committee constituted?

    • The committee aimed to revisit the criteria for determining the economically weaker sections in terms of the provisions of the explanation to Article 15 of the Constitution.
    • It followed the Supreme Court’s observation that the income criterion for determining EWS was “arbitrary”.
    • The Supreme Court is presently hearing a number of petitions, including a special leave petition filed by the Centre against a Madras HC order on EWS and OBC reservation in the all-India quota for NEET.

    Key recommendations

    • The report says that the “threshold of Rs 8 lakh of annual family income, in the current situation, seems reasonable for determining EWS”.
    • The committee has recommended that EWS may, however, exclude, irrespective of income, a person whose family has 5 acres of agricultural land and above.
    • The committee has removed the criteria that excluded some categories from EWS:
    1. Owners of residential properties of 1,000 sq ft and above
    2. Residential plots of 100 sq yards and above in notified municipalities
    3. Residential plots of 200 sq yards and above in areas other than the notified municipalities

    How does it address the questions raised by the Supreme Court?

    • The Supreme Court has earlier questioned the basis of Rs 8 lakh criteria and termed it arbitrary without any substantiation.
    • It asserted that this criteria is similar to that of Creamy Layer in OBCs.

    What did the committee say on Income Criteria?

    • The committee’s report now states the two sets of criteria are significantly different despite both using the Rs 8 lakh cut-off and that the criteria for the EWS.
    • EWS criteria are much more stringent than those for the OBC creamy layer.
    • The report justifies this income limit, stating that Rs 8 lakh cut off also has a link with the income tax exemption limit.
    • It would, therefore, be logical to use the income tax exemption limit to determine the threshold for EWS.

    Tap here to read more about:

    [Sansad TV] Perspective: Defining EWS

     

     

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  • Confrontation between the Governors and the State governments

    Context

    Recent media reports about the confrontation between the Governors and the State governments, in Maharashtra and Kerala, have turned the spotlight on the rather delicate relationship between the constitutional head of the State and the elected government.

    Recent incidents of confrontation

    •  In Maharashtra, the Governor refused to accept the date of election of the Speaker recommended by the State government.
    • The Constitution has not assigned any role to the Governor in the election of the Speaker under Article 178, which is exclusively the job of the House.
    • The Governor’s refusal to accept the date of election of the Speaker goes against the principles of constitutional government. 
    • In Kerala, the State Governor having reappointed the Vice Chancellor of Kannur University in accordance with the law, made an allegation that he was under pressure from the Government to reappoint the Vice Chancellor.
    • In fact, he or she can accept suggestions from any person including the Leader of the Opposition in the Assembly.
    • However, the Governor as Chancellor is not required to act on the advice of the Council of Ministers in the matter of appointment of Vice Chancellor and others in the university.
    • He can act absolutely independently.
    • Non-acceptance of the advice of the Council of Ministers too has been witnessed in Rajasthan as well as Maharashtra again.
    • The Kerala High Court has clarified this legal point in Gopalakrishnan vs Chancellor, University of Kerala.

    What explains the confrontational relationship between Governor and State Government?

    • Historical background: It has something to do with the whole idea of the office of the Governor and its past history.
    • In the colonial era, the Governor was the absolute ruler of the province.
    • While making the Constitution,  there were divergent views on the powers to be given to the Governor in the Constituent Assembly.
    • There were members in the Assembly who wanted the Governor to be as powerful as the colonial-era Governors.
    • Discretionary powers: Though B.R. Ambedkar was clear that the Governor should only be a constitutional head and the executive power should vest entirely in the elected government.
    • He promoted the idea of vesting certain discretionary powers in the Governor.
    • Why discretionary powers? In this respect he was guided by the thinking that the State governments are in subordination to the Union government and, therefore, the Governor should be given discretionary powers to ensure that they act so.
    • So, ultimately, the Governor is given certain discretionary powers prescribed by or under the Constitution unlike the President of India who has not been given any such powers.
    • Vagueness about actual powers: Further, Article 163 became a ‘blind reproduction of Section 50 of the Government of India Act 1935’ (H.V. Kamath).
    • This exact reproduction of the provision in the Act of 1935 has, to a great extent, introduced a vagueness about the actual powers of the Governor vis-à-vis the elected government.
    • This vagueness was corrected only with the Supreme Court of India stating the law in unambiguous terms in Shamsher Singh (1974).
    • From Shamsher Singh to Nabam Rebia (2016) the Supreme Court declared that the Governor can, in the exercise of executive power of the state, act only on the aid and advice of the Council of Ministers “…save in a few well-known exceptional situations”.

    Consider the question “The relationship between the Governor and Chief Minister has, even at the best of times, not been absolutely simple and tension free. What are the factors responsible for confrontation? Suggest the way forward.”

    Conclusion

    The Governor is a high constitutional authority. He needs to function within the four walls of the Constitution and be a friend, philosopher and guide to his government.

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  • Uniform Civil Code

    The Centre has informed the Delhi HC that it was awaiting the report of the Law Commission of India, which is examining various issues relating to the Uniform Civil Code.

    What is a Uniform Civil Code?

    • A Uniform Civil Code is one that would provide for one law for the entire country, applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption etc.
    • Article 44, one of the directive principles of the Constitution lays down that the state shall endeavour to secure a Uniform Civil Code for the citizens throughout the territory of India.
    • These, as defined in Article 37, are not justiciable (not enforceable by any court) but the principles laid down therein are fundamental in governance.

    Why need UCC?

    • UCC would provide equal status to all citizens
    • It would promote gender parity in Indian society.
    • UCC would accommodate the aspirations of the young population who imbibe liberal ideology.
    • Its implementation would thus support the national integration.

    Hurdles to UCC implementation

    • There are practical difficulties due to religious and cultural diversity in India.
    • The UCC is often perceived by the minorities as an encroachment on religious freedom.
    • It is often regarded as interference of the state in personal matters of the minorities.
    • Experts often argue that the time is not ripe for Indian society to embrace such UCC.

     UCC vs. Right to Freedom of Religion

    • Article 25 lays down an individual’s fundamental right to religion;
    • Article 26(b) upholds the right of each religious denomination or any section thereof to “manage its own affairs in matters of religion”;
    • Article 29 defines the right to conserve distinctive culture.
    • An individual’s freedom of religion under Article 25 is subject to “public order, health, morality” and other provisions relating to FRs, but a group’s freedom under Article 26 has not been subjected to other FRs.
    • In the Constituent Assembly, there was division on the issue of putting UCC in the fundamental rights chapter. The matter was settled by a vote.
    • By a 5:4 majority, the fundamental rights sub-committee headed by Sardar Patel held that the provision was outside the scope of FRs and therefore the UCC was made less important.

    Enacting and Enforcing UCC

    • Fundamental rights are enforceable in a court of law.
    • While Article 44 uses the words “state shall endeavour”, other Articles in the ‘Directive Principles’ chapter use words such as “in particular strive”; “shall in particular direct its policy”; “shall be obligation of the state” etc.
    • Article 43 mentions “state shall endeavour by suitable legislation” while the phrase “by suitable legislation” is absent in Article 44.
    • All this implies that the duty of the state is greater in other directive principles than in Article 44.

    What are more important — fundamental rights or directive principles?

    • There is no doubt that fundamental rights are more important.
    • The Supreme Court held in Minerva Mills (1980): Indian Constitution is founded on the bed-rock of the balance between Parts III (Fundamental Rights) and IV (Directive Principles).
    • To give absolute primacy to one over the other is to disturb the harmony of the Constitution.
    • Article 31C inserted by the 42nd Amendment in 1976, however, lays down that if a law is made to implement any directive principle, it cannot be challenged on the ground of being violative of the FRs under Articles 14 and 19.

    What about Personal Laws?

    • Citizens belonging to different religious and denominations follow different property and matrimonial laws which are an affront to the nation’s unity.
    • If the framers of the Constitution had intended to have a UCC, they would have given exclusive jurisdiction to Parliament in respect of personal laws, by including this subject in the Union List.
    • But “personal laws” are mentioned in the Concurrent List.

    Various customary laws

    • All Hindus of the country are not governed by one law, nor are all Muslims or all Christians.
    • Muslims of Kashmir were governed by a customary law, which in many ways was at variance with Muslim Personal Law in the rest of the country and was, in fact, closer to Hindu law.
    • Even on registration of marriage among Muslims, laws differ from place to place.
    • In the Northeast, there are more than 200 tribes with their own varied customary laws.
    • The Constitution itself protects local customs in Nagaland. Similar protections are enjoyed by Meghalaya and Mizoram.
    • Even reformed Hindu law, in spite of codification, protects customary practices.

    Minority opinion in the Constituent Assembly

    • Some members sought to immunize Muslim Personal Law from state regulation.
    • Mohammed Ismail, who thrice tried unsuccessfully to get Muslim Personal Law exempted from Article 44, said a secular state should not interfere with the personal law of people.
    • B Pocker Saheb said he had received representations against a common civil code from various organisations, including Hindu organisations.
    • Hussain Imam questioned whether there could ever be uniformity of personal laws in a diverse country like India.
    • B R Ambedkar said “no government can use its provisions in a way that would force the Muslims to revolt”.
    • Alladi Krishnaswami, who was in favour of a UCC, conceded that it would be unwise to enact UCC ignoring strong opposition from any community.
    • Gender justice was never discussed in these debates.

     Conclusion

    • Article 44 of the Constitution creates an obligation upon the State to endeavour to secure for citizens a Uniform Civil Code throughout the country.
    • The purpose behind UCC is to strengthen the object of “Secular Democratic Republic” as enshrined in the Preamble of the Constitution.
    • This provision is provided to effect integration of India by bringing communities on the common platform on matters which are at present governed by diverse personal laws.
    • Hence it UCC should be enforced taking into confidence all the sections of Indian society.

     

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  • Why EC can’t delay upcoming polls

    Context

    Ever since the Allahabad High Court urged the Election Commission of India to consider banning all political rallies or postponing the upcoming Assembly elections due to the increasing threat of Omicron, the focus of debate has shifted to the EC.

    Why and when does the Election Commission clubs the elections?

    • To avoid the influence of result: As per practice, the EC clubs all elections that are so close to each other to ensure that the results in one state do not influence the voters in the state going to the polls soon after.
    • Earliest date: The earliest due date of a state determines the poll dates for all the clubbed states.
    • No delay allowed: The EC cannot delay an election even by a day, although it can advance it by up to six months.
    • The Assembly elections of five states are due in the early months of 2022, four of these in March itself — Goa (by March 15), Manipur (March 19), Uttarakhand (March 23) and Punjab (March 27).
    • The fifth — UP — is due by May 14.
    • Goa being the earliest, we must have all five elections completed before March 15.

    Why EC cannot postpone the elections?

    • Violation of Constitution: Postponing elections is not in the Election Commission’s hands at all and would be a violation of the constitutional mandate that gives every Vidhan Sabha a fixed term.
    • As soon as the term is over, the House stands dissolved automatically.
    • The term of the House cannot be extended except in an emergency declared by Parliament, which the Constitution restricts to only two situations — war and breakdown of law and order.
    • In the seven decades of our electoral history, this has happened only three times — in Assam, Punjab and Jammu and Kashmir — in insurgency situations.

    Way forward: Strict enforcement of guidelines

    • Before the Bihar elections of 2020, the EC had issued detailed guidelines based on its observation of other countries that conducted elections that year, like South Korea and Sri Lanka.
    • Reduction of the number of electors: These guidelines included the reduction of the number of electors per polling booth from 1,500 to 1,000, to prevent over-crowding, which required the addition of 33,797 auxiliary polling stations.
    • Covid-sensitive capacity building: The guidelines also included Covid-sensitive capacity-building of election officials.
    • Postal ballot option: The ECI also extended the postal ballot option to senior citizens over the age of 80, Covid-positive patients, persons with disabilities and voters in essential services.
    • Virtual campaigning: Virtual campaigning was also encouraged to stop election rallies contributing to Covid.
    • Besides the standard social distancing and sanitising norms, voters were provided with gloves to touch the EVMs.
    • To avoid crowding at the counting centres, the counting tables were reduced from 14 to seven per assembly constituency.

    Consider the question “What are the challenges in postponing the Assembly elections beyond the fixed terms of the Assembly? Suggest the way forward.”

    Conclusion

    This election is an opportunity for the EC to redeem its image. More importantly, it must guard itself against the trap of postponing the polls under any persuasion.

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  • ₹8 lakh income ‘reasonable’ cap for EWS quota, Centre tells SC

    A government committee report in the Supreme Court has said that “income” is a “feasible criterion” for defining the “Economically Weaker Sections” (EWS) in society, and the annual family income of ₹8 lakh is a “reasonable” threshold to determine EWS.

    Centre’s Argument: Strict criteria for EWS

    • The income criterion for EWS was “more stringent” than the one for the OBC creamy layer.
    • EWS’s criteria relates to the financial year prior to the year of application.
    • On the other side, income criterion for the creamy layer in OBC category is applicable to gross annual income for three consecutive years.

    EWS Quota: A backgrounder

    • The 10% reservation was introduced through the 103rd Constitution Amendment and enforced in January 2019.
    • It added Clause (6) to Article 15 to empower the Government to introduce special provisions for the EWS among citizens except those in the classes that already enjoy reservation.
    • It allows reservation in educational institutions, both public and private, whether aided or unaided, excluding those run by minority institutions, up to a maximum of 10%.
    • It also added Clause (6) to Article 16 to facilitate reservation in employment.
    • The new clauses make it clear that the EWS reservation will be in addition to the existing reservation.

    Significance of the quota

    • The Constitution initially allowed special provisions only for the socially and educationally backward classes.
    • The Government introduced the concept of EWS for a new class of affirmative action program for those not covered by or eligible for the community-based quotas.

    What are the criteria to identify the section?

    • The main criterion is that those above an annual income limit of ₹8 lakh are excluded.
    • It accounts income from all sources such as salary, business, agriculture and profession for the financial year prior to the application of the family, applicants, their parents, siblings and minor children.
    • Possession of any of these assets, too, can take a person outside the EWS pool:
    1. Five or more acres of agricultural land
    2. A residential flat of 1,000 sq.ft. and above
    3. A residential plot of 100 square yards and above in notified municipalities, and
    4. A residential plot of 200 square yards and above in other areas

    What are the court’s questions about the criteria?

    • Reduction within general category: The EWS quota remains a controversy as its critics say it reduces the size of the open category, besides breaching the 50% limit on the total reservation.
    • Arbitrariness over income limit: The court has been intrigued by the income limit being fixed at ₹8 lakh per year. It is the same figure for excluding the ‘creamy layer’ from OBC reservation benefits.
    • Socio-economic backwardness: A crucial difference is that those in the general category, to whom the EWS quota is applicable, do not suffer from social or educational backwardness, unlike those classified as the OBC.
    • Metropolitan criteria: There are other questions as to whether any exercise was undertaken to derive the exceptions such as why the flat criterion does not differentiate between metropolitan and non-metropolitan areas.
    • OBC like criteria: The question the court has raised is that when the OBC category is socially and educationally backward and, therefore, has additional impediments to overcome.
    • Not based on relevant data: In line with the Supreme Court’s known position that any reservation or norms for exclusion should be based on relevant data.
    • Breaches reservation cap: There is a cap of 50% on the reservation as ruled in the Indira Sawhney Case. The principle of balancing equality ordains reservation.

    What is the current status of the EWS quota?

    • The reservation for the EWS is being implemented by the Union Government for the second year now.
    • Recruitment test results show that the category has a lower cut-off mark than the OBC, a point that has upset the traditional beneficiaries of reservation based on caste.
    • The explanation is that only a small number of people are currently applying under the EWS category — one has to get an income certificate from the revenue authorities — and therefore the cut-off is low.
    • However, when the number picks up over time, the cut-off marks are expected to rise.

    Practical issues with EWS Quota

    The EWS quota will come in for judicial scrutiny soon. But it’s not only a matter for the judiciary, India’s Parliament should revisit the law too.

    • Hasty legislation: This law was passed in haste. It was passed in both the houses within 48 hours, and got presidential approval the next day.
    • Minority appeasement: It is widely argued that the law was passed to appease a certain section of upper-caste society and to suppress the demands for minority reservations.
    • Morality put to question: Imagine! A constitutional amendment has been made with few hours of deliberation and without consultation of the targeted group. This is certainly against constitutional morality and propriety.
    • Substantial backing is missing: This amendment is based on a wrong or unverified premise. This is at best a wild guess or a supposition because the government has not produced any data to back this point.
    • Under-reservation of Backward Classes: The assertion is based on the fact that we have different data to prove the under-representation of SC, ST, OBCs. That implies that ‘upper’ castes are over-represented (with 100 minus reservation).
    • Rationale of 10%: There is one more problem in this regard. The SC and ST quota is based on their total population. But the rationale for the 10 per cent quota was never discussed.
    • Principle of Equality: Economic backwardness is quite a fluid identity. It has nothing to do with historic wrongdoings and liabilities caused to the Backward Classes.

    Way forward

    • Preserving the merit: We cannot rule out the sorry state of economic backwardness hampering merit in our country .
    • Rational critera: There has to be collective wisdom to define and measure the economic weakness of certain sections of the society in order to shape the concept of economic justice.
    • Judicial guidance: Judicial interpretation will pave the wave forward for deciding the criterion for EWS Quota.
    • Targetted beneficiaries. The centre needs to resort to more rational criteria for deciding the targeted beneficiary of this reservation system. Caste Census data can be useful in this regard.
    • Income study: The per capita income or GDP or the difference in purchasing power in the rural and urban areas, should be taken into account while a single income limit was formulated for the whole country.

     

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  • Punishing Hate Speech

    A recent religious conclave has witnessed inflammatory and provocative speeches by some religious proponents hinting at a Myanmar-type ‘minority cleansing campaign’.

    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.

    What lies 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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  • Electoral reform is welcome, but shouldn’t be selective

    Context

    The Election Laws (Amendment) Bill that seeks to link the electoral rolls with the Aadhaar database has been passed by both the Houses of the parliament.

    Three electoral reforms

    • A wide range of electoral reform proposals has been pending with the government, several of them for over two decades.
    • The three reforms — common electoral rolls for Vidhan Sabha and panchayat elections, extending the qualifying date for registration of young new voters, and linking of Aadhaar with electoral rolls — taken up by the Union Cabinet on December 15 are, therefore, significant.

    [1] Common electoral rolls

    • For years, the ECI has been advocating a common electoral roll for all elections.
    • Currently, separate electoral rolls are maintained for elections to the Lok Sabha, Vidhan Sabha and local government bodies (panchayats or municipal).
    • Role of ECI and SECs: There are two types of election management bodies in the country — the ECI that conducts the Lok Sabha and Vidhan Sabha elections and SECs that conduct panchayat and municipal elections.
    • The process for making electoral rolls is laid down in the Registration of Electors Rules, 1960.
    • The SECs have the option of either adopting the electoral rolls created by the ECI or preparing such rolls on their own.
    • Most prefer to use the rolls prepared by the ECI.
    • Some states, however, develop their rolls independently.
    • These are Uttar Pradesh, Uttarakhand, Madhya Pradesh, Kerala, Odisha, Assam, Arunachal Pradesh, Nagaland and the Union Territory of Jammu and Kashmir.
    • Considering that a voter for all three tiers of elected bodies is the same, why is it that she finds her name missing from one of the rolls, mostly the panchayat rolls?
    • This is particularly surprising when the officials responsible for making both these rolls are the same.
    • A common electoral roll is thus a logical solution. 

    Benefits of common electoral rolls

    • Tackling stuffing voters: A common experience has been the stuffing of bogus voters in the panchayat/municipal rolls.
    • Corrupt practices are proportionately higher in PRI polls.
    • Avoid the involvement of teachers in the non-teaching work: The process of making electoral rolls is usually done by the schoolteachers.
    • Their involvement in non-teaching work takes its toll.
    • Cost-saving: A common electoral roll will obviate the need for deploying them repeatedly, besides saving enormous costs.

    Suggestions for preparation of common electoral rolls

    • Issue joint instructions: The ECI and SECs can issue joint instructions for preparing the common rolls. The roll-making machinery stays the same.
    • Pilot studies may be conducted in random constituencies to identify the discrepancies between two sets of rolls and their reasons.

    What are the constitutional and legal changes required?

    • Amendment in Article 243K and 243ZA: The SECs derive their powers to supervise local body elections from Articles 243K and 243ZA of the Constitution.
    • Changes in State laws: All state governments would have to change their electoral laws to adopt ECI electoral rolls for local elections.

    [2] Eligibility date of new voters

    • According to Section 14(b) of the Representation of People Act of 1950, only those who have turned 18 on or before January 1 of the year are to be registered.
    • This implies that all those who turn 18 between January 2 and December 31 of a year must wait till the next year.
    • This technicality results in the exclusion of a large section of 18-year-olds.

    Suggestion by ECI on eligibility date

    • The ECI had sent a letter to the Law Ministry on November 4, 2013, which recommended the issuing of a voter card to an individual ideally on their 18th birthday, or updating voter rolls every month or quarter.
    • A committee of the Ministry of Law and Justice under Sushil Kumar Modi has proposed quarterly cut-off dates for voter registration — January 1, April 1, July 1 and October 1.

    [3] Aadhar linking

    • The proposal to link electoral rolls with Aadhaar was first mooted by the ECI in 2015 but work on it had to be stopped when the Supreme Court ruled that Aadhaar cannot be used except voluntarily for beneficiary-oriented schemes.
    • Benefits of linking: The linking will help in identifying duplicate voters, something that ECI has been desperately attempting for years using various “de-duplication” software with limited success.

    Consider the question “What are the concerns with linking of Aadhar and electoral rolls? Suggest the way forward.”

    Conclusion

    Any progress in addressing the vexed issue of electoral reform — even in a piecemeal manner — is welcome. The time has, however, come for the government to consider the 40-plus pending proposals, instead of selectively going for some reforms.

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