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Subject: Fundamental Rights,DPSP

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

  • In electoral reform bill’s passing, a missed opportunity

    Context

    The Election Laws (Amendment) Bill, 2021 was passed in the Lok Sabha recently. It seeks to link electoral rolls with the Aadhaar ecosystem.

    What are the concerns with linking of Aadhar with electoral roll?

    [1] Aadhar is not proof of citizenship

    • Aadhaar is not meant to be a citizenship proof but only a digital identity for all residents.
    • Residence of 182 days can make even a non-citizen eligible for an Aadhaar ID.

    [2] Aadhar is not address proof

    • According to public statements by several government functionaries, Aadhaar was only meant to be identity proof but not address proof.
    • Electoral roll is based on Aadhar: In contrast, the RER clearly stipulates address to be a key index for electoral rolls.
    • Different enrollment process: Moreover, the enrolment processes for voters’ lists and Aadhaar are completely different.
    • Whereas Aadhaar enrolment is based on production of existing documents and the “introducer system”, voter enrolments involve physical verification and “house visits” by a registration officer or representative.

    [3] No audit report on the efficacy of Aadhaar deduplication or on the authenticity of the Aadhaar database

    • Even the Supreme Court accepted the Unique Identification Authority of India’s (UIDAI) claims on the integrity of the Aadhaar database at face value without any scrutiny.
    • Risk of exclusion error: Using Aadhaar to clean the electoral rolls involved the risk of disenfranchisement, especially of the marginalised communities.
    • It is to be noted that there is ample publicly documented evidence of large-scale exclusion in PDS and welfare disbursal due to Aadhaar.

    [4] Conflict of interest

    • UIDAI is under government control: Maintenance of the voters’ lists is a primary responsibility of the ECI, which is an independent constitutional body, whereas Aadhaar is a government instrument and UIDAI is under government control.
    • Since the ECI has no control on either enrolment or deduplication in Aadhaar, it appears inappropriate — and a potential conflict of interest — to use Aadhaar for electoral rolls.
    • In particular, since Aadhaar is directly used for disbursal of welfare and direct benefit transfers, linking it with voter ID may provide a direct method for the government to influence and manipulate voters.

    [5] Risk of profiling and targeting of voters

    • Aadhaar is a ubiquitous ID that is used in a variety of applications.
    • Linking it with the voter ID will open up avenues for profiling and targeting of voters.
    • No audit for purpose limitation: This is of particular concern because neither the UIDAI nor the ECI have publicly audited architectures for purpose limitation and protection against insider attacks.
    • While profiling using public data is not illegal according to current laws, both the electorate and Parliament need to clearly understand the risks of such profiling.
    • It is far easier to win elections through digital analysis of electoral rolls than through attacking the electronic voting process, especially when election results are available at booth-level granularity
    • Both privacy and integrity of the electoral rolls are of paramount importance in the digital age, and the clear tension between the two makes the problem challenging.

    Way forward

    • Use of cryptography: The RER of 1960 clearly opted for transparency as a means to the integrity of the electoral rolls, thereby ensuring that all additions and deletions can be publicly audited.
    • However, with the possibility of digital processing of electoral data, the risks associated with such complete transparency have increased manifold.
    • Yet, there are several modern techniques from cryptography and computer science that may help mitigate the risks by enabling both privacy and public auditability.

    Consider the question “The Election Laws (Amendment) Bill, 2021 enable the linking of electoral rolls with the Aadhaar ecosystem. What are the objectives of such linking and concerns raised against it?”

    Conclusion

    An electoral reforms bill at the onset of 2022 needed to explore and address these issues head-on.

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  • Govt. disagrees with India’s rank in World Press Freedom Index

    The Centre has shown its disagreement with the conclusions drawn by Reporters Without Borders about press freedom in India for various reasons.

    World 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 organization’s own assessment of the countries’ press freedom records in the previous year.
    • It intends to reflect the degree of freedom that journalists, news organizations, and netizens have in each country, and the efforts made by authorities to respect this freedom.
    • It is careful to note that the index only deals with press freedom and does not measure the quality of journalism in the countries it assesses, nor does it look at human rights violations in general.

    India’s ranking

    • India is ranked at 142 out of 180 countries on the World Press Freedom Index 2021.
    • In the South Asian neighborhood, Nepal is at 106, Sri Lanka at 127, Myanmar (before the coup) at 140, Pakistan at 145 and Bangladesh at 152.
    • China is ranked 177, and is only above North Korea at 179 and Turkmenistan at 178.

    What the report said about India

    • Targeting women: It has been highlighted that the “campaigns are particularly violent when the targets are women”.
    • Criminal prosecutions: Often used to gag journalists critical of the authorities.
    • Draconian laws: It termed various Indian laws such as – laws on ‘sedition,’ ‘state secrets’ and ‘national security’, draconian.
    • Curb on freedom of expression: The report has also highlighted the throttling of freedom of expression on social media.
    • Censorship on social media: It specifically mentioned that in India the “arbitrary nature of Twitter’s algorithms also resulted in brutal censorship”

    Reservations held by India

    • India along with many nations has reportedly disgusted the outcomes of this report. It stated that media in India enjoy absolute freedom.
    • The government does not subscribe to its views and country rankings and does not agree to the conclusions drawn by this organization for various reasons:
    1. Non-transparent methodology
    2. Very low sample size
    3. Little or no weightage to fundamentals of democracy
    4. Adoption of a methodology that is questionable and non-transparent
    5. Lack of clear definition of press freedom, among others

    Why is the report biased?

    • The report is a subjective measure computed through the prism of western liberals.
    • It tends to default to a homogenous view of mass media which then facilitates comparison between countries.
    • There are no questions about media ownership or about their economic concentration in private hands.

     

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  • Phrase ‘Anti-national’ not defined in statutes: MHA

    The phrase ‘anti-national’ has not been defined in statutes, the Ministry of Home Affairs (MHA) has informed the Parliament.

    Defining Anti-national Activities

    (1) Unlawful Activities (Prevention) Act  

    • The UAPA is aimed at the prevention of unlawful activities associations in India.
    • Its main objective was to make powers available for dealing with activities directed against the integrity and sovereignty of India.

    (2) Sedition Law

    • Section 124A IPC deals with attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards, the Government established by law in India.
    • This law was enacted by the British colonial government in 1870 with the sole object of suppressing all voices of Indians critical of the government.

     (3) NCRB Reports

    • In 2019, when the National Crime Records Bureau released the annual Crime in India report for year 2017, it included for the first time a new chapter on “Crime Committed by Anti National Elements.”
    • The chapter listed – “North East insurgents, Left Wing Extremists and Terrorists (including Jihadi terrorists)” as the three anti-national elements.

    Attempts for defining

    • There are criminal legislations and various judicial pronouncements deal with unlawful and subversive activities which are detrimental to the unity and integrity of the country.
    • In this regard, it is relevant to mention that the 42nd Constitutional Amendment Act, 1976 inserted in the Constitution Article 31D (during Emergency) which defined “anti-national activity”.
    • This Article 31D was, later, omitted by the 43rd Constitutional Amendment Act, 1977.

    Supreme Court guidelines

    • In the ultimate analysis, the judgment in Kedar Nath (1962) read down Section 124A and held that without incitement to violence or rebellion there is no sedition.
    • It says that ‘only when the words written or spoken etc. which have the pernicious tendency or intention of creating public disorder the law steps in.

    Who maintains the data of such individuals?

    • The onus of maintenance of such data lies with the respective states.
    • ‘Public Order’ and ‘Police’ are State subjects as per the Seventh Schedule of the Constitution.
    • Hence the data about the number of people arrested for indulging in anti-national activities are not maintained centrally.

     

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  • Election Commission

    The “informal interaction” of the CEC and two other Election Commissioners with the Prime Minister’s Principal Secretary has raised questions about the neutrality of the Commission, especially when elections to crucial States are around the corner.

    About Election Commission of India

    • The ECI is a constitutional authority whose responsibilities and powers are prescribed in the Constitution of India under Article 324.
    • In the performance of its functions, the Election Commission is insulated from executive interference.
    • It is the Commission that decides the election schedules for the conduct of elections, whether general elections or by-elections.
    • ECI decides on the location of polling stations, assignment of voters to the polling stations, location of counting centers, arrangements to be made in and around polling stations and counting centres and all allied matters.

    Litigations against EC

    • The decisions of the Commission can be challenged in the High Court and the Supreme Court of India by appropriate petitions.
    • By long-standing convention and several judicial pronouncements, once the actual process of elections has started, the judiciary does not intervene in the actual conduct of the polls.

    Issues with PMO meeting

    • Executive interference: ECs are expected to maintain distance from the executive — a constitutional safeguard to insulate the commission from external pressure and allow it to continue as an independent authority.
    • Violating official channels: The EC’s communication with the Government on election matters is through the bureaucracy — either with its administrative ministry — the Law Ministry or the Home Ministry.
    • Breach of protocol: The Law Ministry spells the fine print on law for the country and is expected not to breach the constitutional safeguard provided to the commission to ensure its autonomy.

    Recent incidence of criticisms

    Ans. Partiality in Elections

    • Over the last couple of years, several actions and omissions of the commission have come in for criticism.
    • Nearly 66 former bureaucrats in a letter addressed to the President, expressed their concern over the working of the Election Commission.
    • They felt was suffering from a credibility crisis, citing various violations of the model code of conduct during the 2019 Lok Sabha Elections.

    Importance of ECI for India

    • Conduction of Election: The ECI has been successfully conducting national as well as state elections since 1952.
    • Electoral participation: In recent years, however, the Commission has started to play a more active role to ensure greater participation of people.
    • Discipline of political parties: It had gone to the extent of disciplining the political parties with a threat of derecognizing if the parties failed in maintaining inner-party democracy.
    • Upholds federalism: It upholds the values enshrined in the Constitution viz, equality,
      equity, impartiality, independence; and rule of law in superintendence, direction, and control over electoral governance.
    • Free and fair elections: It conducts elections with the highest standard of credibility, freeness, fairness, transparency, integrity, accountability, autonomy and professionalism.

    Issues with ECI

    • Flaws in the composition: The Constitution doesn’t prescribe qualifications for members of the EC. They are not debarred from future appointments after retiring or resigning.
    • No security of tenure: Election commissioners aren’t constitutionally protected with security of tenure.
    • Partisan role: The EC has come under the scanner like never before, with increasing incidents of breach of the Model Code of Conduct in the 2019 general elections.
    • Political favor: The opposition alleged that the ECI was favoring the ruling party by giving clean chit to the model code of conduct violations made by the PM.
    • Non-competence: Increased violence and electoral malpractices under influence of money have resulted in political criminalization, which ECI is unable to arrest.

     

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  • Issues with summoning CEC, EC to PMO

    Context

    The Chief Election Commissioner and two Election Commissioners were summoned by the PMO to attend a meeting with the Principal Secretary to the PM.

    Why the meeting raises questions?

    • The PMO summoning or “inviting” not just the CEC but the full bench is in violation of the Constitution, irrespective of how important or urgent the issue.
    • Violation of the principle of distancing from executive: When a person is appointed as CEC or EC, that person has to resign from his executive post in order to adhere to important constitutional principle of distancing from the executive/government.
    • The executive could appoint a person to these posts but could not order them, or remove me because of the constitutional scheme of things.
    • Violation of independence: An independent ECI is a gift of the Constitution to the nation. Free and fair and credible elections are sine qua non of the EC.
    • The Supreme Court has repeatedly stressed this point, calling it part of the basic structure of the Constitution.
    • Violation of warrant of precedence: The CEC is very high in the warrant of precedence — ninth, while the PS to PM is 23rd.
    • How can such a high constitutional functionary be summoned to attend a meeting with an officer, howsoever high and mighty?
    • It raises suspicions:  A meeting of the PS to the PM, formal or informal, online or in the PMO or ECI, just before elections raises unnecessary suspicions.

    Conclusion

    This incident is a transgression that should not happen again. The distance of an arm’s length in interactions between institutions envisaged in the Constitution is sacrosanct. It should not only be maintained but also “seen” to be maintained.

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  • Back in news: Right to be Forgotten

    The Centre has informed the Delhi High Court that the Personal Data Protection Bill 2019 contains provisions related to the ‘right to be forgotten’.

    Right to be Forgotten

    • ‘Right to be forgotten’ is a fairly new concept in India where an individual could seek to remove or delete online posts which may contain an embarrassing picture, video or news articles mentioning them.
    • It comes under the right to privacy which has been held to be a fundamental right by the Supreme Court under Article 21.
    • In 2017, the Right to Privacy was declared a fundamental right by the Supreme Court in its landmark verdict.

    Why in news?

    • The Personal Data Protection Bill 2019 contains provisions related to the doctrine of ‘right to be forgotten’.
    • It highlighted two judgments passed by the Orissa High Court and the Karnataka High Court where they have accepted the doctrine of the ‘right to be forgotten’ as an essential part of the ‘right to privacy’.

    Mention in PDP Bill

    • The PDP bill aims to set out provisions meant for the protection of the personal data of individuals.
    • Clause 20 under Chapter V of this bill titled “Rights of Data Principal” mentions the “Right to be Forgotten.”
    • It states that the “data principal (the person to whom the data is related) shall have the right to restrict or prevent the continuing disclosure of his personal data by a data fiduciary”.
    • A data fiduciary means any person, including the State, a company, any juristic entity, or any individual who alone or in conjunction with others determines the purpose and means of the processing of personal data.

    Implications

    • Under the Right to be forgotten, users can de-link, limit, delete or correct the disclosure of their personal information held by data fiduciaries.

    Other similar provisions

    • Section 69A of the IT Act does provide for removal of “certain unlawful information” from an intermediary platform.
    • It primarily applies to ‘national security and public order related issues’ only.

    Also read:

    Draft Personal Data Protection Bill, 2021

     

     

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  • Conflation between duties and rights

    Context

    There has been growing advocacy for the integration of duty with rights. On Constitution Day last month, many Union Ministers used the occasion to underline this proposal.

    What do rights come with duty mean?

    • It is a basic proposition that all rights come with duties.
    • But those duties are quite distinct from the meaning ascribed to them in the popular discourse.
    • When a person holds a right, she is owed an obligation by a duty-bearer.
    • For example, when citizens are promised a right against discrimination, the government is obliged to ensure that it treats everybody with equal care and concern.
    • Similarly, the guarantee of a right to freedom of speech enjoins the state to refrain from interfering with that liberty.

    Integrating rights with duties

    • Proponents of integration of duty with rights aim to treat otherwise non-binding obligations — the “fundamental duties” as Article 51A describes them on a par with, if not superior to, the various fundamental rights that the Constitution guarantees.
    • In an inversion of the well-known dictum, they see duties, and not rights, as trumps.
    • On Constitution Day last month, many Union Ministers used the occasion to underline this proposal.
    • The government puts forward an idea that our rights ought to be made conditional on the performance of a set of extraneous obligations.

    Issues with the proposal

    • This suggestion is plainly in the teeth of the Constitution’s text, language, and history.
    • To the framers of the Constitution, the very idea of deliberating over whether these rights ought to be provisional, and on whether these rights ought to be made subject to the performance of some alien duty, was against the republic’s vision.
    • Imposing duties a legislative prerogative: The Constitution’s framers saw the placing of mandates on individual responsibilities as nothing more than a legislative prerogative.
    • For example, the legislature could impose a duty on individuals to pay a tax on their income, and this duty could be enforced in a variety of ways.
    • If the tax imposed and the sanctions prescribed were reasonable, the obligations placed on the citizen will be constitutionally valid.
    • In this manner, Parliament and the State legislatures have imposed a plethora of duties — duties to care for the elderly and for children; duties to pay tolls and levies; duties against causing harm to others; duties to treat the environment with care, the list is endless.
    • Against Constitution: What is critical, though, is that these laws cannot make a person’s fundamental right contingent on the performance of a duty that they impose.
    • A legislation that does so will violate the Constitution.

    Background

    • The fundamental duties that are now contained in Article 51A were introduced through the 42nd constitutional amendment.
    • The Swaran Singh Committee, which was set up during the Emergency, and which recommended the insertion of the clause, also suggested that a failure to comply with a duty ought to result in punishment.
    • Ultimately, the amendment was introduced after the binding nature of the clause was removed.
    • In its finally adopted form, Article 51A encouraged citizens to perform several duties.

    Way forward

    • Know the precise nature of duties the rights create: The philosopher Onora O’Neill has argued with some force that we would do well to discuss the precise nature of duties that rights create.
    • Unless we do so, our charters of human rights may not by themselves be enough.
    • For example, we may want to ask ourselves if the promise of a right to free expression imposes on the state something more than a duty to forebear from making an unwarranted restriction on that liberty.
    •  Does it require the state to also work towards creating an equal society where each person finds herself in a position to express herself freely?

    Consider the question “How fundamental duties are related to the fundamental rights in the context of the Indian Constitution? What are the issues with making the enforcement of rights contingent on adhering to the duties?”

    Conclusion

    When we speak about the importance of obligations, it is these questions that must animate our discussions. Should we instead allow the language of fundamental duties to subsume our political debates, we would only be placing in jeopardy the moral principles at the heart of India’s republic.

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  • A case for in inclusion of Ladakh under Sixth Schedule

    A ruling party MP from Ladakh has demanded that the region be included in the Sixth Schedule of the Constitution to safeguard land, employment, and cultural identity of the local population.

    What is the Sixth Schedule?

    • The Sixth Schedule under Article 244 provides for the formation of autonomous administrative divisions — Autonomous District Councils (ADCs).
    • ADCs have some legislative, judicial, and administrative autonomy within a state.
    • The Sixth Schedule applies to the NE states of Assam, Meghalaya, Mizoram (three Councils each), and Tripura (one Council).

    Composition of ADCs

    • ADCs have up to 30 members with a term of five years.
    • It can make laws, rules and regulations with regard to land, forest, water, agriculture, village councils, health, sanitation, village- and town-level policing, inheritance, marriage and divorce, social customs and mining, etc.
    • The Bodoland Territorial Council in Assam is an exception with more than 40 members and the right to make laws on 39 issues.

    Why does Ladakh want to be part of the Sixth Schedule?

    • Local aspirations: There was much enthusiasm initially, mostly in Leh, after the repeal of Art. 370 which created two new UTs.
    • Negligence in erstwhile J&K state: Buddhist-dominated Leh district had long demanded UT status because it felt neglected by the erstwhile state government.
    • Denial of Legislature: The enthusiasm waned as it was understood that while the UT of J&K would have a legislature, the UT of Ladakh would not.
    • Inadequate representation: The administration of the region is now completely in the hands of bureaucrats with only 1 MP.
    • New domicile criteria: The changed domicile policy in Jammu and Kashmir has raised fears in the region about its own land, employment, demography, and cultural identity.
    • Statehood demands: A coalition of social, religious, and political representatives in Leh and Kargil has demanded full statehood for Ladakh.

    Cultural significance of Ladakh

    • Ladakh is historically perceived as a cosmopolitan region with centuries of multiple cultural settings.
    • It was an Asian pivot – the people here traversed diverse cultural boundaries and engaged with ideas.

    Can Ladakh be included in Sixth Schedule?

    • NCST Recommends: In September 2019, the National Commission for Scheduled Tribes recommended the inclusion of Ladakh under the Sixth Schedule.
    • Distinct culture: It was predominantly tribal (more than 97%), people from other parts of the country had been restricted from purchasing or acquiring land there, and its distinct cultural heritage needed preservation.

    Legal hurdles

    • Fifth schedule as an alternative: The Constitution is very clear, Sixth Schedule is for the Northeast. For tribal areas in the rest of the country, there is the Fifth Schedule.
    • Exclusive provision for NE: Notably, no region outside the Northeast has been included in the Sixth Schedule.
    • Requires Constitutional Amendment: It remains the prerogative of the government. For this, a constitutional amendment is required.

    Government’s response in this regard

    • The Centre woke up to the anxieties of the region when, a year after the abrogation of Article 370, when all political parties announced a boycott of the LAHDC-Leh elections.
    • The political factions in Ladakh were promised “Sixth Schedule-like” protections by the Home Minister.
    • The MHA has in Jan announced that a committee under then MoS Home G Kishan Reddy would be formed to address the issues related to language of Ladakh, culture of Ladakh and conservation of land in Ladakh.
    • It had assured representatives of Kargil and Leh that the government was committed to look into their concerns.

    Try this question from CSP 2015:

    Q.The provisions in Fifth Schedule and Sixth Schedule in the Constitution of India are made in order to-

    (a) protect the interests of Scheduled Tribes

    (b) determine the boundaries between States

    (c) determine the powers, authority and responsibilities of Panchayats

    (d) protect the interests of all the border States

     

    [wpdiscuz-feedback id=”0xt8a7bveb” question=”Please leave a feedback on this” opened=”1″]Post your answers here.[/wpdiscuz-feedback]

     

     

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  • Sedition Law: Section 124A of the IPC

    Law Minister has informed the Parliament that there is no proposal to scrap sedition from the IPC despite severe remarks by the Supreme Court about the chilling effect of the “colonial law” which suppresses the freedoms of ordinary people.

    What does Section 124A of the IPC say?

    • The section deals with the offence of sedition, a term that covers speech or writing, or any form of visible representation, which brings the government into hatred or contempt, or excites disaffection towards the government, or attempts to do so.
    • It is punishable with three years in prison or a life term.
    • “Disaffection”, it says, includes disloyalty and feelings of enmity.
    • However, it also says expressing disapproval of government measures or actions, with a view to getting them changed by lawful means, without promoting hatred or disaffection or contempt towards the government will not come under this section.

    What is its origin?

    • Colonial past: Sedition was introduced in the penal code in 1870, a decade after the Indian Penal Code came into force.
    • It was a colonial law directed against strong criticism of the British administration.
    • Putting curb on Freedom fighters: Its most famous victims included Bal Gangadhar Tilak and Mahatma Gandhi.
    • Gandhiji called it “the prince among the political sections of the IPC designed to suppress the liberty of the citizen”.

     

    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.

    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?

    • Liberals and rights activists have been demanding the scrapping of Section 124A.
    • It is argued that the provision is “overbroad”, i.e., it defines the offence in wide terms threatening the liberty of citizens.
    • The Law Commission has also called for a reconsideration of the section.
    • 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.
    • 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.

    What has the apex court observed?

    • Justice D.Y. Chandrachud had flagged the indiscriminate use of the sedition law against people who aired their grievances about the government’s COVID management.
    • People have been charged even for seeking help to gain medical access, equipment, drugs and oxygen cylinders, especially during the second wave of the pandemic.
    • Justice U.U. Lalit, in his recent judgment, quashed a sedition case against a person for his alleged remarks about the PM and the Union Government.

    Way forward

    • The time is long past when the mere criticism of governments was sufficient to constitute sedition.
    • The right to utter honest and reasonable criticism is a source of strength to a community rather than a weakness, the CJI has recorded.

    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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  • When can an individual get Statutory Bail?

    The National Investigation Agency (NIA) has approached the Supreme Court against a Bombay High Court order granting bail to an advocate and activist.

    What is the case?

    • In its bail order, the court has asked the NIA Court to decide the conditions for her release.
    • The activist was given ‘default bail’.
    • The case highlights the nuances involved in a court determining the circumstances in which statutory bail is granted or denied, even though it is generally considered “an indefeasible right”.

    What is default bail?

    • This is enshrined in Section 167(2) of the Code of Criminal Procedure.
    • Also known as statutory bail, this is a Right to Bail that accrues when the police fail to complete investigation within a specified period in respect of a person in judicial custody.
    • When it is not possible for the police to complete an investigation in 24 hours, the police produce the suspect in court and seek orders for either police or judicial custody.

    When is the Bail granted?

    • For most offences, the police have 60 days to complete the investigation and file a final report before the court.
    • However, where the offence attracts death sentence or life imprisonment, or a jail term of not less than 10 years, the period available is 90 days.
    • In other words, a magistrate cannot authorise a person’s judicial remand beyond the 60-or 90-day limit.
    • At the end of this period, if the investigation is not complete, the court shall release the person “if he is prepared to and does furnish bail”.

    How does the provision vary for special laws?

    The extension of time is not automatic but requires a judicial order.

    • Ordinary law (IPC/CrPC): The 60- or 90-day limit is only for ordinary penal law.
    • Narcotic Drugs and Psychotropic Substances Act: In NDPS Act, the period is 180 days. However, in cases involving substances in commercial quantity, the period may be extended up to one year.
    • Unlawful Activities (Prevention) Act: In UAPA, the default limit is 90 days only. The court may grant an extension of another 90 days, if it is satisfied that the progress made in the investigation and giving reasons to keep the accused in further custody.

    What are the laid-down principles on this aspect?

    • A matter of Right: Default or statutory bail is an indefeasible right’, regardless of the nature of the crime liberty under Article 21 of the Constitution.
    • Stipulated period calculation: The stipulated period within which the charge sheet has to be filed begins from the day the accused is remanded for the first time. It includes days undergone in both police and judicial custody, but not days spent in house-arrest.
    • Voluntary: There is no automatic bail.

    Try this similar PYQ from CSP 2021:

    Q. With reference to India, consider the following statements:

    1. When a prisoner makes a sufficient case, parole cannot be out denied to such prisoner because it becomes a matter of his/her right.
    2. State Governments have their own Prisoners Release on Parole Rules.

    Which of the statements given above is/are correct?

    (a) 1 only

    (b) 2 only

    (c) Both 1 and 2

    (d) Neither 1 nor 2

     

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