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Subject: Fundamental Rights,DPSP

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

  • Contentious Clauses in Data Protection Bill

    The Joint Parliamentary Committee on Data Protection has found a middle ground on certain contentious clauses. Many panellists had objected to the clause, saying that it made the entire Act infructuous.

    What is the issue?

    • The Data Protection Law has some clauses in the name of “sovereignty”, “friendly relations with foreign states” and “security of the state”.
    • These clauses allow any agency under the Union government exemption from all or any provisions of the law.
    • The legislation gives powers to the Central government to suspend all or any of the provisions of the Act for government agencies.

    Personal Data Protection Bill, 2019

    • The PDP Bill was introduced in Lok Sabha by the Minister of Electronics and Information Technology in 2019.
    • The Bill seeks to provide for protection of personal data of individuals, and establishes a Data Protection Authority for the same.

    Here are the key features:

    Applicability

    • The Bill governs the processing of personal data by: (i) government, (ii) companies incorporated in India and (iii) foreign companies dealing with personal data of individuals in India.
    • Personal data is data which pertains to characteristics, traits or attributes of identity, which can be used to identify an individual.
    • The Bill categorises certain personal data as sensitive personal data.
    • This includes financial data, biometric data, caste, religious or political beliefs, or any other category of data specified by the government, in consultation with the Authority and the concerned sectoral regulator.

    Data fiduciary and his obligations

    • A data fiduciary is an entity or individual who decides the means and purpose of processing personal data. Such processing will be subject to certain purpose, collection and storage limitations.
    • For instance, personal data can be processed only for specific, clear and lawful purpose.
    • Additionally, all data fiduciaries must undertake certain transparency and accountability measures such as: (i) implementing security safeguards (such as data encryption and preventing misuse of data), and (ii) instituting grievance redressal mechanisms to address complaints of individuals.
    • They must also institute mechanisms for age verification and parental consent when processing sensitive personal data of children.

    Rights of the individual

    The Bill sets out certain rights of the individual (or data principal).  These include the right to:

    1. Obtain confirmation from the fiduciary on whether their personal data has been processed
    2. Seek correction of inaccurate, incomplete, or out-of-date personal data
    3. Have personal data transferred to any other data fiduciary in certain circumstances and
    4. Restrict continuing disclosure of their personal data by a fiduciary, if it is no longer necessary or consent is withdrawn

    Grounds for processing personal data

    • The Bill allows the processing of data by fiduciaries only if consent is provided by the individual. However, in certain circumstances, personal data can be processed without consent.
    • These include: (i) if required by the State for providing benefits to the individual, (ii) legal proceedings, (iii) to respond to a medical emergency.

    Social media intermediaries

    • The Bill defines these to include intermediaries which enable online interaction between users and allow for sharing of information.
    • All such intermediaries which have users above a notified threshold, and whose actions can impact electoral democracy or public order, have certain obligations, which include providing a voluntary user verification mechanism for users in India.

    Data Protection Authority

    • The Bill sets up a Data Protection Authority which may: (i) take steps to protect interests of individuals, (ii) prevent misuse of personal data, and (iii) ensure compliance with the Bill.
    • It will consist of a chairperson and six members, with at least 10 years’ expertise in the field of data protection and information technology.
    • Orders of the Authority can be appealed to an Appellate Tribunal. Appeals from the Tribunal will go to the Supreme Court.

    Transfer of data outside India

    • Sensitive personal data may be transferred outside India for processing if explicitly consented to by the individual, and subject to certain additional conditions.
    • However, such sensitive personal data should continue to be stored in India.
    • Certain personal data notified as critical personal data by the government can only be processed in India.

    Exemptions:

    The central government can exempt any of its agencies from the provisions of the Act:

    1. In interest of security of state, public order, sovereignty and integrity of India and friendly relations with foreign states
    2. For preventing incitement to commission of any cognisable offence (i.e. arrest without warrant) relating to the above matters
    • Processing of personal data is also exempted from provisions of the Bill for certain other purposes such as: (i) prevention, investigation, or prosecution of any offence, or (ii) personal, domestic, or (iii) journalistic purposes.
    • However, such processing must be for a specific, clear and lawful purpose, with certain security safeguards.

    Sharing of non-personal data with government:

    The central government may direct data fiduciaries to provide it with any:

    1. Non-personal data and
    2. Anonymised personal data for better targeting of services.

    Amendments to other laws

    • The Bill amends the Information Technology Act, 2000 to delete the provisions related to compensation payable by companies for failure to protect personal data.

     

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  • Right to Govt. Aid is not a Fundamental Right: SC

    The right of an institution, whether run by a majority or minority community, to get government aid is not a fundamental right.  Both have to equally follow the rules and conditions of the aid, the Supreme Court held in a judgment.

    What is the case about?

    • The judgment came in an appeal filed by Uttar Pradesh against a decision of the Allahabad High Court to declare a provision of the Intermediate Education Act of 1921 unconstitutional.

    Key takeaways from the Judgment

    • The SC has clarified that if the government made a policy call to withdraw aid, an institution cannot question the decision as a “matter of right”.
    • Whether it is an institution run by the majority or the minority, all conditions that have relevance to the proper utilisation of the grant-in-aid by an educational institution can be imposed.
    • All that Article 30(2) states is that on the ground that an institution is under the management of a minority, whether based on religion or language.
    • The grant of aid to that educational institution cannot be discriminated against, if other educational institutions are entitled to receive aid.

    Basis of the Judgment

    • A grant of government aid comes with accompanying conditions.
    • An institution is free to choose to accept the grant with the conditions or go its own way.
    • If an institution does not want to accept and comply with the conditions accompanying such aid, it is well open to it to decline the grant and move in its own way.
    • On the contrary, an institution can never be allowed to say that the grant of aid should be on its own terms, the Bench observed.

    Various grounds discussed

    The court explained why institutions cannot view government aid as a “matter of right”.

    • Government aid is a policy decision: It depends on various factors including the interests of the institution itself and the ability of the government to understand the exercise. Therefore, even in a case where a policy decision is made to withdraw the aid, an institution cannot question it as a matter of right.
    • Financial constraints and deficiencies: These are the factors which are considered relevant in taking any decision qua aid, including both the decision to grant aid and the manner of disbursement of an aid.
    • Not arbitrary decision: The bench said that a policy decision is presumed to be in public interest, and such a decision once made is not amenable to challenge, until and unless there is manifest or extreme arbitrariness, a Constitutional court is expected to keep its hands off.

     

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    Back2Basics: Minority Rights in India

    • Article 15: prohibits discrimination on grounds of religion race cast sex or place of birth
    • Article 17: prohibits untouchability
    • Article 25 provides the right to practice any religion.
    • Article 26 allows religious institutions to be opened.
    • Article 27 provides that no person shall be forced to pay any taxes which is not mandatory.
    • Article 28 provides that there shall be no religious instruction to be followed in any particular educational institutions.
    • Article 29 provides that no citizen shall be denied admission in any educational institution on grounds of religion race caste.
    • Article 30 provides that minority shall not be prohibited from any educational institutions.

     

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  • Deployment of Facial Recognition Systems (FRS) in India

    India has seen a rapid deployment of Facial Recognition Systems (FRS) in recent years, both by the Centre and State governments, without putting in place any law to regulate their use.

    Facial Recognition System

    • A FRS is a technology capable of matching a human face from a digital image or a video frame against a database of faces.
    • It is typically employed to authenticate users through ID verification services, works by pinpointing and measuring facial features from a given image.

    Why in news?

    • There is a growing unabated use of this potentially invasive technology without any safeguards.
    • This poses a huge threat to the fundamental rights to privacy and freedom of speech and expression of the citizens.

    FRS in India

    • Currently, 18 FRSs are in active utilisation by the Centre and State governments for the purpose of surveillance, security and authentication of identity.
    • 49 more systems are in the process of being installed by different government agencies.
    • Delhi Police was the first law enforcement agency in the country to start using the technology in 2018.
    • Only Telangana is ahead of Delhi at present with four facial recognition systems in active utilization for surveillance and authentication of identity.

    Judicial scrutiny of the move

    • States say that they are authorized by the Delhi High Court in terms of the decision in the case of ‘Sadhan Haldar vs NCT of Delhi’.
    • In that particular case, the High Court had authorized the Delhi police to obtain facial recognition technology for the purpose of tracking and reuniting missing children.
    • FRS may be used in the investigation in the interest of safety and security of the general public.

    A potential mis-use?

    Ans. Can’t say!

    • Activists pointed out that Delhi Police was now using the FRS, which was meant for tracking missing children, for wider security and surveillance and investigation purpose.
    • There is a “function creep” happening with Police gradually using the technology beyond its intended purpose.
    • For example, the use of FRS to identify accused who took part in the farmers’ tractor rally violence in January this year.

    Need of the hour

    Ans. Bring accountability

    • Surveillance of any kind happens in secret and the people generally don’t know that they are being watched.
    • The idea behind is to bring light to the fact that these technology systems are being used without any laws in place to regulate them.
    • Police and state authorities should use such technologies for specific and special purposes with proper authorization.

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  • State control over Temples

    Context

    On August 14, 2021, the Tamil Nadu government appointed 24 trained archakas (priests) in temples across the State. In the weeks since, a series of writ petitions have been filed before the Madras High Court assailing these appointments.

    Administration of  Hindu temples in Tamil Nadu by government and challenges to it

    • The Hindu Religious and Charitable Endowments (HR&CE), 1959, is the governing law on the administration of Hindu temples and religious institutions.
    • In 1971, Section 55 of the HR&CE Act was amended to abolish hereditary priesthood.
    • Removal of caste-based discrimination: In 2006, the amendment provided for the appointment of sufficiently trained Hindus irrespective of their caste as archakas to Hindu temples by the government.
    • Challenges in the Court: Challenges to both amendments were taken to the Supreme Court, which upheld the law, as amended.
    •  In Seshammal v. Union (1972), the Supreme Court observed that the amendment to the HR&CE Act abolishing hereditary priesthood did not mean that the government intended to bring about any “change in the rituals and ceremonies”.
    • Constitutional legitimacy: In Adi Saiva Sivachariyargal v. Govt. of Tamil Nadu (2015), the Supreme Court observed that “the constitutional legitimacy, naturally, must supersede all religious beliefs or practices”.
    • The Court further went on to state that appointments should be tested on a case-by-case basis and any appointment that is not in line with the Agamas will be against the constitutional freedoms enshrined under Articles 25 and 26 of the Constitution.

    Judicial balancing of the various rights by the Supreme Court

    • In Indian Young Lawyers’ Association v. State of Kerala (the Sabarimala case) and Joseph Shine v. Union of India (2018), the Supreme Court reiterated the need to eliminate “historical discrimination which has pervaded certain identities”’, “systemic discrimination against disadvantaged groups”.
    • In these cases the Supreme Court rejected stereotypical notions used to justify such discrimination.
    • In all these cases, the Court prioritised judicial balancing of various constitutional rights.
    • The constitutional order of priority: In the Sabarimala case, it held that “in the constitutional order of priorities, the individual right to the freedom of religion was not intended to prevail over but was subject to the overriding constitutional postulates of equality, liberty and personal freedoms recognised in the other provisions of Part III”.

    Way forward

    • Building on the Sabrimala case: The constitutional courts will now be called upon to build on the gains of the Sabarimala case when it comes to administration of temples, insofar as it concerns matters that are not essentially religious.
    • Dealing with the gender bias: The Supreme Court, in Navtej Singh Johar v. Union of India (2018), interpreted Article 15 as being wide, progressive and intersectional.
    • Today, while most of the debate is around whether men from all caste groups can become archakas, we have failed to recognise the gender bias inherent in these discussions.

    Consider the question “We have been witnessing the evolution of rights-based jurisprudence in the various judgements of the Supreme Court. This will help to eliminate “systemic discrimination against disadvantaged groups”, and reject stereotypical notions used to justify such discrimination. Comment.”

    Conclusion

    At once, caste orthodoxy and patriarchy entrenched within the realm of the HR&CE Act can be eliminated and supplanted with a vision of a just, equal and dignified society.

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  • Domicile Based Job Quota

    The Jharkhand Assembly has passed a Bill, which provides 75% reservation for local people in the private sector up to ₹40,000 salary a month.

    Try answering this PYQ first:

    Q.One of the implications of equality in society is the absence of- (CSP 2018)

    (a) Privileges

    (b) Restraints

    (c) Competition

    (d) Ideology

    What is the move?

    • Every employer shall register such employees receiving gross monthly salary as wages not more than ₹ 40,000 as the limit notified by the government from time to time on the designated portal within three months of the Act coming into force.
    • Every employer shall fill up 75% of the total existing vacancies on the date of notification of this Act and subsequent thereto by local candidates with respect to such posts where the gross monthly salary or wages are not more than ₹40,000”.
    • The Bill provides for the local MLA to supervise the employment procedure and issue directions to the employer concerned as it may deem fit.

    Other such states

    • Once notified, Jharkhand will become the third State in the country, after Andhra Pradesh and Haryana, to pass such law.
    • In 2019, Andhra Pradesh passed such law, while in June last, Haryana passed law, reserving 75% quota for the local people in private jobs with monthly salary less than ₹50,000.

    What is Quota for Locals?

    Ans. Constitutional provision for Equal Treatment

    • Article 16 of the Constitution guarantees equal treatment under the law in matters of public employment. It prohibits the state from discriminating on grounds of place of birth or residence.
    • Article 16(2) states that “no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State”.
    • The provision is supplemented by the other clauses in the Constitution that guarantee equality.
    • However, Article 16(3) of the Constitution provides an exception by saying that Parliament may make a law “prescribing” a requirement of residence for jobs in a particular state.
    • This power vests solely in the Parliament, not state legislatures.

    Why does the Constitution prohibit reservation based on domicile?

    • When the Constitution came into force, India turned itself into one nation from a geographical unit of individual principalities and the idea of the universality of Indian citizenship took root.
    • India has single citizenship, and it gives citizens the liberty to move around freely in any part of the country.
    • Hence the requirement of a place of birth or residence cannot be qualifications for granting public employment in any state.

    But are reservations not granted on other grounds such as caste?

    • Equality enshrined in the Constitution is not mathematical equality and does not mean all citizens will be treated alike without any distinction.
    • To this effect, the Constitution underlines two distinct aspects which together form the essence of equality law:
    1. Non-discrimination among equals, and
    2. Affirmative action to equalize the unequal

    Supreme Court rulings on quota for locals

    • The Supreme Court has ruled against reservation based on place of birth or residence.
    • In 1984, ruling in Dr Pradeep Jain v Union of India, the issue of legislation for “sons of the soil” was discussed.
    • The court expressed an opinion that such policies would be unconstitutional but did not expressly rule on it as the case was on different aspects of the right to equality.
    • In a subsequent ruling in Sunanda Reddy v State of Andhra Pradesh (1995), the Supreme Court affirmed the observation in 1984 ruling to strike down a state government policy that gave 5% extra weightage to candidates.
    • In 2002, the Supreme Court invalidated appointment of government teachers in Rajasthan in which the state selection board gave preference to “applicants belonging to the district or the rural areas of the district concerned”.
    • In 2019, the Allahabad HC struck down a recruitment notification by the UP PSC which prescribed preference for women who are “original residents” of the UP alone.

  • Spirit of federalism lies in consultation

    Context

    Recently, various State governments raised concerns about Central unilateralism in the enactment of critical laws on subjects in the Concurrent List of the Seventh Schedule.

    Objection of the state against Centre legislating on the subject in Concurrent List without consulting States

    • Unilateral legislation on subjects in Concurrent list: Kerala Chief Minister stated that it is not in the essence of federalism for the Union government to legislate unilaterally, on the subjects in the Concurrent List.
    • Encroaching on powers of States: Tamil Nadu Chief Minister raised the issue by calling on other Chief Ministers against the Union government encroaching on powers under the State and Concurrent Lists.
    • The Kerala Legislative Assembly unanimously passed a resolution against the Electricity (Amendment) Bill, 2020.
    • The Tamil Nadu Legislative Assembly passed a resolution against the controversial farm laws.

    Background of the Concurrent List

    • The Concurrent List gives the Union and the State Legislatures concurrent powers to legislate on the subjects contained in it.
    • Purpose of Concurrent List: The fields in the Concurrent List were to be of common interest to the Union and the States, and the power to legislate on these subjects to be shared with the Union so that there would be uniformity in law across the country.

    Union government extending its control on subjects in the Concurrent List and State list

    1) Farm laws: Encroaching on the powers of States

    • Parliament passed the farm laws without consulting the States.
    • State List subject: The laws, essentially related to Entry 14 (agriculture clause) belonging to the State List.
    • However, Parliament passed the law citing Entry 33 (trade and commerce clause) in the Concurrent List.
    • Against legal principle set by the Supreme Court: The Supreme Court, beginning from the State of Bombay vs F.N. Balsara case, said that if an enactment falls within one of the matters assigned to the State List and reconciliation is not possible with an entry in the Concurrent or Union List after employing the doctrine of “pith and substance”, the legislative domain of the State Legislature must prevail.

    2) Major Port Authorities Act 2021 and Indian Ports Bill: Centre taking away the power of State

    • The Major Ports Authorities Act, 2021, was passed by Parliament earlier this year.
    • Goa objected to the law, stating that it would lead to the redundancy of the local laws.
    • Concurrent List subject: When it comes to non-major ports, the field for legislation is located in Entry 31 of the Concurrent List. 
    • The Indian Ports Act, 1908, presently governs the field related to non-major ports.
    • As per the Indian Ports Act, 1908, the power to regulate and control the minor ports remained with the State governments.
    • The new draft Indian Ports Bill, 2021, proposes the Maritime State Development Council (MSDC), which is overwhelmingly controlled by the Union government.

    3) Electricity (Amendment) Bill,2020: Centre taking away powers of State

    • Various States like West Bengal, Tamil Nadu and Kerala have also come forward against the Electricity (Amendment) Bill, 2020.
    • The field related to electricity is traceable to Entry 38 of the Concurrent List.
    • The power to regulate the sector was vested with the State Electricity Regulatory Commissions (SERCs), members of which were appointed by the State government.
    • The proposed amendment seeks to establish National Selection Committee, dominated by members nominated by the Union government that will make appointments to the SERCs.
    • The amendment also proposes the establishment of a Centrally-appointed Electricity Contract Enforcement Authority (ECEA).
    • In effect, the power to regulate the electricity sector would be taken away from the State government.

    Way forward

    • Consultation with States: The National Commission to Review the Working of the Constitution (NCRWC), or the Venkatachaliah Commission, had recommended that individual and collective consultation with the States should be undertaken through the Inter-State Council established under Article 263 of the Constitution.
    • Coordination of policy and action in concurrent jurisdiction: The Sarkaria Commission Report had recommended that there should be a coordination of policy and action in all areas of concurrent or overlapping jurisdiction through a process of mutual consultation.
    • Limit powers to ensuring uniformity: The Sarkaria Commission further recommended that the Union government, while exercising powers under the Concurrent List, limit itself to the purpose of ensuring uniformity in basic issues of national policy and not more.
    • Responsibility of Centre: The Supreme Court itself had held in the S.R. Bommai vs Union of India case, the States are not mere appendages of the Union.
    • The Union government should ensure that the power of the States is not trampled with.

    Consider the question “There has been instances of protest by the State government against Centre legislating unilaterally on subjects in Concurrent List. What are the implications of this for the federalism? Suggest the way forward.”

    Conclusion

    The essence of cooperative federalism lies in consultation and dialogue, and unilateral legislation without taking the States into confidence will lead to more protests on the streets.

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  • Freedom of Movement and Residence

    The rights to free movement and residence across India cannot be curtailed on flimsy grounds, a Bench of Justices Indira Banerjee and V. Ramasubramanian held in a judgment.

    Freedom of Movement and Residence

    • Article 19(1)(d) and (e) of the Indian Constitution guarantees to every citizen of India right to move freely throughout the territory of India and to reside and settle in any Part of the of the Territory of India.
    • This right is subject to reasonable restrictions imposed by law in the interest of the general public or for the protection of the interests of any Scheduled Tribes.

    (A) Freedom of Movement under Article 19(1)(d)

    • All Citizens of India have the right “to move freely throughout the territory of India.
    • This Right is, however subject to reasonable restrictions mentioned under Article 19(5).

    Restrictions:

    • This clause (5) empowers the State to impose reasonable restrictions in the interest of the general public or for the protection of the interest of any Scheduled Tribe.
    • Kharak Singh V. State of UP (1963) Case: The Supreme Court held that the right to move freely throughout the territory of India means the right of locomotion which connotes the right to move wherever one likes, and however one likes.
    • State of UP V. Kaushalya Case (1964):  In this case, the Supreme court held that the right of movement of prostitutes may be restricted on grounds of Public Health and in the interest of Public Morals.

    (B) Freedom of Resident under Article 19(1)(e)

    • Article 19(1)(e) of the Indian Constitution guarantees to every citizen of India, the right “to reside and settle in any part of the territory of India”.
    • This right is subjected to reasonable restrictions which may be imposed by the State in the interest of the general public or for the protection of the interest of any Scheduled Tribe.

    Some facts

    • The Freedom of Movement and Residence apply only to citizens of India and not the Foreigners.
    • A foreigner cannot claim the right to reside and settle in the country as guaranteed by Article Article 19(1)(e).
    • The Government of India has the power to expel foreigners from India.

    Why in news, now?

    • The Supreme Court has held that the power of the State to pass an externment order or a direction barring certain people entry to specified areas should be exercised only in “exceptional cases”.
    • The court said externment orders have their use in maintaining law and order.
    • However, they cannot be employed as a vindictive or retaliatory measure.
    • The drastic action of externment should only be taken in exceptional cases, to maintain law and order in a locality and/or prevent breach of public tranquility and peace, the court noted.

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    Back2Basics: Article 19

    Article 19(1) states that All citizens shall have the right:

    • (a) to freedom of speech and expression;
    • (b) to assemble peaceably and without arms;
    • (c) to form associations or unions;
    • (d) to move freely throughout the territory of India;
    • (e) to reside and settle in any part of the territory of India; and
    • (f) omitted
    • (g) to practice any profession, or to carry on any occupation, trade, or business

  • Delhi HC observations on Right to be Forgotten

    The Delhi High Court upheld the view that the “Right to Privacy” includes the “Right to be Forgotten” and the “Right to be Left Alone”.

    Right to be Forgotten in India

    • The Right to be Forgotten falls under the purview of an individual’s right to privacy, which is governed by the Personal Data Protection Bill that is yet to be passed by Parliament.
    • In 2017, the Right to Privacy was declared a fundamental right by the Supreme Court in its landmark verdict.
    • The court said at the time that “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution”.

    What was the recent case?

    • The TV celebrity had moved Delhi High Court with the plea that orders be issued to Google and relevant entities to facilitate the removal of posts, videos, articles and any information related to incidents that he was involved.
    • His plea cited that his presence on the internet is a source of “utmost psychological pain” to him.

    Legal issues

    • India does not have a law yet on right to be forgotten.
    • In the meantime, the Information Technology Rules, 2011 — which is the current regime governing digital data — does not have any provisions relating to the right to be forgotten.
    • The Personal Data Protection (PDP) Bill was tabled in Parliament in 2019 and is being examined by a Joint Parliamentary Committee (JPC).

    Key features of PDP Bill

    • Personal Data: Section 20 of the PDP Bill says that a ‘data principal’ — or the person who generates the data or to whom the information pertains — can rightfully ask a ‘data fiduciary’, which is any entity that stores or processes such data, to “restrict or prevent the continuing disclosure of his personal data” in specific circumstances.
    • Purpose of data: To seek the erasure of data, it is necessary to establish that it “has served the purpose for which it was collected or is no longer necessary for the purpose; was made with the consent of the data principal.
    • Right to be forgotten: The Bill says that the right to be forgotten can be enforced only on an order of an adjudicating officer following an application filed by the data principal.
    • Contravention with Free Speech: However, the decision on whether the right to be forgotten can be granted with respect to any data will depend on whether it contravenes “the right to freedom of speech and expression and the right to information of any other citizen”.

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  • Economic criterion not sole basis for Creamy Layer: Supreme Court

    The basis of exclusion of ‘creamy layer’ cannot be merely economic, a Supreme Court Bench has observed in their judgment, while referring to the court’s Indra Sawhney verdict of 1992.

    What was the case?

    • The court was hearing a petition challenging some notifications by the Haryana government sub-classifying backward classes solely on economic basis while fixing the criteria for creamy layer.
    • The notifications said children of persons having “gross annual income” of up to ₹3 lakh annually would get the benefit of reservation in services and admission in educational institutions.
    • The remaining quota would go to those from backward families, which earn between₹3 lakh and ₹6 lakh per annum.
    • The sections earning over ₹6 lakh annually were considered as ‘creamy layer’ under Section 5 of the 2016 Act.
    • The apex court held that the Haryana’s notifications have violated the law declared in the Indra Sawhney judgment by identifying creamy layer only on the basis of income.

    Defying Indra Sawhney Verdict (1992)

    • The case had declared that ‘creamy layer’ in a backward community should be excluded from reservation so that the more deserving were able to come up.
    • Explaining this verdict, court said that such persons were to be treated as ‘creamy layer’ without any further inquiry.

    Who else would be excluded from such reservation?

    • Likewise, people with sufficient income who were in a position to provide employment to others should also be taken to have reached a higher social status and therefore, should be treated as outside the backward class.
    • Similarly, persons from backward classes who had higher agricultural holdings or were receiving income from properties, beyond a prescribed limit, do not deserve the benefit of reservation.

    Key takeaways from the Judgement

    • The Supreme Court has held that the government cannot deny reservation to a person belonging to a backward community solely on the ground that he or she is rich.
    • Social advancement, higher employment in government services, etc, played an equal role in deciding whether such a person belonged to the creamy layer and could be denied quota benefits.
    • The court had illustrated that ‘creamy layer’ would include persons from backward classes who occupied posts in higher services like IAS, IPS, and All India Services.
    • These persons had reached a higher level of social advancement and economic status,and therefore, were not entitled to be treated as backward.

    What is the Creamy Layer?

    • Creamy Layer is a concept that sets a threshold within which OBC reservation benefits are applicable.
    • While there is a 27% quota for OBCs in government jobs and higher educational institutions, those falling within the “creamy layer” cannot get the benefits of this quota.

    Basis of Creamy Layer

    • It is based on the recommendation of the Second Backward Classes Commission (Mandal Commission).
    • The government in 1990 had notified 27% reservation for Socially and Educationally Backward Classes (SEBCs) in vacancies in civil posts and services that are to be filled on direct recruitment.
    • After this was challenged, the Supreme Court in the Indira Sawhney case (1992) upheld 27% reservation for OBCs, subject to exclusion of the creamy layer.

    How is it determined?

    • Following the order in Indra Sawhney, an expert committee headed by Justice (retired) R N Prasad was constituted for fixing the criteria for determining the creamy layer.
    • In 1993, the Department of Personnel and Training (DoPT) listed out various categories of people of certain rank/status/income whose children cannot avail the benefit of OBC reservation.
    1. For those not in government, the current threshold is an income of Rs 8 lakh per year.
    2. For children of government employees, the threshold is based on their parents’ rank and not income.
    3. For instance, an individual is considered to fall within the creamy layer if either of his or her parents is in a constitutional post; if either parent has been directly recruited in Group-A; or if both parents are in Group-B services.
    4. If the parents enter Group-A through promotion before the age of 40, their children will be in the creamy layer.
    5. Children of a Colonel or higher-ranked officer in the Army, and children of officers of similar ranks in the Navy and Air Force, too, come under the creamy layer.
    6. Income from salaries or agricultural land is not clubbed while determining the creamy layer (2004).

    Back2Basics: Indira Sawhney Case

    In the famous Mandal case (Indra Sawhney Case, 1992), the scope and extent of Article 16(4), which provides for reservation of jobs in favor of backward classes, has been examined thoroughly by the Supreme Court.

    • Though the Court has rejected the additional reservation of 10% for poorer sections of higher castes, it upheld the constitutional validity of a 27% reservation for the OBCs with certain conditions.
    • The advanced sections among the OBCs (the creamy layer) should be excluded from the list of beneficiaries of reservation.
    • No reservation in promotions; reservation should be confined to initial appointments only. Any existing reservation in promotions can continue for five years only (i.e., up to 1997).
    • The total reserved quota should not exceed 50% except in some extraordinary situations. This rule should be applied every year.
    • The ‘carry forward rule’ in case of unfilled (backlog) vacancies is valid. But it should not violate the 50% rule.

  • Arresting a Cabinet Minister

    The Maharashtra Police has arrested the Union Minister for MSMEs for allegedly making derogatory remarks against the CM.

    Procedure to arrest a Cabinet Minister

    • If Parliament is not in session, a cabinet minister can be arrested by a law enforcement agency in case of a criminal case registered against him.
    • As per Section 22 A of the Rules of Procedures and Conduct of Business of the Rajya Sabha, the Police, Judge, or Magistrate would, however, have to intimate the Chairman of the Rajya Sabha about the reason for the arrest, the place of detention or imprisonment in an appropriate form.

    What is the procedure to be followed by the Chairman of the Rajya Sabha in case of an arrest?

    • The Chairman is expected to inform the Council if it is sitting about the arrest.
    • If the council is not sitting, he/she is expected to publish it in the bulletin for the information of the members.

    What about the privileges of the Rajya Sabha members vis-a-vis arrests?

    • As per the main privileges of Parliament, in civil cases, they have freedom from arrest during the continuance of the House and 40 days before its commencement and 40 days after its conclusion, as per section 135 of the Code of Civil Procedure.
    • The privilege of freedom from arrest does not extend to criminal offences or cases of detention under preventive detention.

    Can a person be arrested from the precincts of the House?

    • No arrest, whether of a member or of a stranger, can be made within the precincts of the House without the prior permission of the Chairman/Speaker and that too in accordance with the procedure laid down by the Home Ministry in this regard.
    • Similarly, no legal process, civil or criminal, can be served within the precincts of the House without obtaining the prior permission of the Chairman/Speaker whether the House is in session or not.

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    Back2Basics: Parliamentary Privileges

    • Article 105 and Article 194 grant privileges or advantages to the members of the parliament so that they can perform their duties or can function properly without any hindrances.
    • Such privileges are granted as they are needed for democratic functioning.
    • These powers, privileges, and immunities should be defined by the law from time to time.
    • These privileges are considered special provisions and have an overriding effect in conflict.

    Freedom from being arrested

    • The member of parliament cannot be arrested 40 days before and 40 days after the session of the house.
    • If in any case a member of Parliament is arrested within this period, the concerned person should be released in order to attend the session freely.

    Right to exclude strangers from its proceedings and hold secret sessions 

    • The object of including this right was to exclude any chances of daunting or threatening any of the members.
    • The strangers may attempt to interrupt the sessions.

    Right to prohibit the publication of its reporters and proceedings 

    • The right has been granted to remove or delete any part of the proceedings that took place in the house.

    Right to regulate internal proceedings

    • The House has the right to regulate its own internal proceedings and also has the right to call for the session of the Legislative assembly.
    • But it does not have any authority in interrupting the proceedings by directing the speaker of the assembly.

    Right to punish members or outsiders for contempt

    • This right has been given to every house of the Parliament.
    • If any of its members or maybe non-members commit contempt or breach any of the privileges given to him/her, the houses may punish the person.
    • The houses have the right to punish any person for any contempt made against the houses in the present or in the past. 

    Article 105(3) and Article 194(3) states that the parliament should from time to time define the laws or pass the laws on the powers, privileges and immunities of the members of the parliament and members of the legislative assembly.