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Subject: Fundamental Rights,DPSP

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

  • Time to undo the RTE bias against private non-minority institutions

    The article highlights the issues with the exemption of aided and non-aided minority institutions from the Right to Education Act.

    Is RTE enforceable against individuals?

    • Most fundamental rights are enforceable against the state, not against private individuals.
    • Certain rights, however, are horizontally enforceable too, that is, they can be enforced against individuals.
    • The Right to Free and Compulsory Education Act or RTE falls in the latter category.
    • The right to education was initially mentioned in Article 45 as a part of the Directive Principles.

    Evolution of Article 21A

    • The Supreme Court in 1992 held in Mohini Jain v. State of Karnataka that the right to education was a part of the right to life recognised in Article 21.
    • The next year, the court in Unnikrishnan JP v. State of Andhra Pradesh held that the state was duty-bound to provide education to children up to the age of 14 within its economic capacity.
    • The court also acknowledged that private educational institutions, including minority institutions, would have to play a role alongside government schools.
    • The right to education was finally given the status of a fundamental right by the 86th constitutional amendment in the year 2002 by the addition of Article 21A in the Constitution.
    • The Supreme Court held in P. A. Inamdar case that there shall be no reservation in private institutions and that minority and non-minority institutions would not be treated differently.

    Impact of 93rd amendment

    • In 2005, the Constitution was amended by the 93rd amendment to include Clause(5) to Article 15 which dealt with the fundamental right against discrimination.
    • The clause permitted the state to provide for advancement of “backward” classes by ensuring their admission in institutions, including private institutions.
    • The clause, however, excluded both aided and unaided minority educational institutions thus overruling the Supreme Court’s judgment in P.A. Inamdar case.

    Discrimination in RTE

    • When the RTE Act was subsequently enacted in 2009, it did not directly discriminate between students studying in minority and non-minority institutions.
    • Subsequently, the provision of 25 per cent reservation in private institutions was however challenged in Society for Unaided Private Schools of Rajasthan v. Union of India where the court upheld the validity of the legislation exempting only unaided minority schools from its purview.
    • In response to the judgment, the RTE Act was amended in 2012 to mention that its provisions were subject to Articles 29 and 30 which protect the administrative rights of minority educational institutions.
    • So, the onus on private unaided schools was much higher than that on government schools, while even aided minority schools were exempt.
    • But the constitutional provision enabling the RTE Act, that is, Article 21, does not make any discrimination between minority and non-minority institutions.

    Issues

    • The above provisions of RTE made it violative of Article 14 and also economically unviable for many private schools.
    •  Not only has RTE unreasonably differentiated between minority and non-minority schools without any explicable basis, there is also no rational nexus between the object of universal education sought to be achieved by this act and the step of excluding minority schools from its purview.
    • Given the doctrine of harmonious construction of fundamental rights, it is unclear why the court granted complete immunity to minority institutions when several provisions of RTE would not interfere with their administrative rights.
    • RTE has provisions such as prevention of physical/mental cruelty towards students as well as quality checks on pedagogical and teacher standards which children studying in minority institutions should not be deprived of and to that extent be discriminated against.

    Way forward

    • The Kerala High Court held in Sobha George v. State of Kerala that Section 16 of RTE, which forbids non-promotion till the completion of elementary education, will be applicable to minority schools as well. 
    • The bench said that the courts must examine whether provisions such as Section 16 of RTE are statutory rights or fundamental rights expressed in a statutory form.
    • If the latter, then the Pramati case judgement will not be fully available to minority institutions.
    • The Supreme Court should take inspiration from the prudent decision delivered by the Kerala High Court and overrule its own judgment delivered in the Pramati Educational Society.

    Consider the question “What are the issues with the exemption of aided and non-aided minority institution from the RTE Act.”

    Conclusion

    RTE as legislation may be well-intentioned, but the time has come to relook at the discriminatory nature of RTE against private non-minority institutions, and to that extent, undo the damage done by 93rd Amendment and the subsequent SC judgments.

  • Still no recognition of the third tier

    The article highlights the issues with the Fifteenth Finance Commission recommendations with regard to the third tier of the local governments.

    Significance of Finance Commission recommendations for local government

    • The primary task of the Union Finance Commission is to rectify the vertical and horizontal imbalances in resources and expenditure responsibilities between Union and States including the third tier of local governments.
    • Part IX and Part IX-A were incorporated into the Constitution by the 73rd and 74th Constitutional Amendment.
    • Part IX and Part IX-A mandate the Union Finance Commission to supplement the resources of panchayats and municipalities on the basis of the recommendations of the State Finance Commission.
    • Now, nearly 2.5 lakh local governments and over 3.4 million elected representatives form the real democratic base of the Indian federal polity.

    Increase in vertical devolution

    • The Fifteenth Finance Commission has raised the vertical devolution recommended to local governments to 4.23% with a reasonably estimated amount of ₹4,36,361 crore.
    • Compared with the Fourteenth Finance Commission there is a 52% increase in the vertical share.
    • Even if we deduct the grant of ₹70,051 crore earmarked for improving primary health centres, the share is still an all-time high of 4.19%.
    • All the Commissions since the Eleventh Commission have tied specific items of expenditure to local grants and the Fifteenth Finance Commission has raised this share to 60% and linked them to drinking water, rainwater harvesting, sanitation and other national priorities in the spirit of cooperative federalism.

    Reduction in performance-based  grants

    • The Fifteenth Finance Commission has reduced the performance-based grant to just ₹8,000 crore — and that too for building new cities, leaving out the Panchayati Raj Institutions (PRIs) altogether.
    • The performance-linked grants were introduced by the Thirteenth Finance Commission and covered a wide range of reforms.
    • The transformative potential in designing performance-linked conditionalities for improving the quality of decentralised governance in the context of indifferent states is missed.

    Encouraging standardisation of accounting system

    • An important recommendation of the Fifteenth Finance Commission is the entry-level criterion to avail the union local grant (except health grant) by local governments.
    • For panchayats, the condition is the online submission of annual accounts for the previous year and audited accounts for the year before.
    • For urban local governments, two more conditions are specified: fixation of the minimum floor for property tax and improvement in its collection.
    •  It is not clear why gram panchayats are left out from this.
    • Although Finance Commissions, from the Eleventh to the Fourteenth, have recommended measures to standardise the accounting system and update the auditing of accounts, the progress made has been halting.
    • Therefore, the entry-level criteria of the Fifteenth Finance Commission are timely.

    Missed opportunity to ensure minimum public services

    • The Fifteenth Finance Commission failed to carry policy choices forward systematically.
    • Articles 243G, 243W and 243ZD read along with the functional decentralisation of basic services like drinking water, public health care, etc., mandated in the Eleventh and Twelfth schedules demand better public services and delivery of ‘economic development and social justice’ at the local level.
    • A good opportunity to ensure comparable minimum public services to every citizen irrespective of her choice of residential location has not been taken forward in an integrated manner.

    Missing equalisation principle for the local government

    • The Fifteenth Finance Commission claims that it seeks to achieve the “desirable objective of evenly balancing the union and the states”.
    • It is not clear why there is no recognition of the third tier in this balancing act.
    • It may be relevant to recall that the Alma-Ata declaration of the World Health Organization (1978) which outlined an integrated, local government-centric approach with a simultaneous focus on access to water, sanitation, shelter and the like.
    • There is no integrated approach in the recommendations of the Fifteenth Finance Commission about the local governments (in contrast to the recommendations of the Thirteenth Finance Commission).
    • Although the Fifteenth Finance Commission stresses the need to implement the equalisation principle, it is virtually silent when it comes to the local governments.

    Equity and efficiency sidelined

    • The Fifteenth Finance Commission employed population (2011 Census) with 90% and area 10% weightage for determining the distribution of grant to States for local governments.
    • The same criteria were followed by the Fourteenth Finance Commission.
    • While this ensures continuity, equity and efficiency criteria are sidelined.
    • Abandoning tax effort criterion incentivises dependency, inefficiency and non-accountability.

    Consider the question “Discuss the various aspects of the Fifteenth Finance Commission’s recommendations with regard to local governments.”

    Conclusion

    In sum, if decentralisation is meant to empower local people, the primary task is to fiscally empower local governments to deliver territorial equity. We are far from this goal.

  • OCI card holders no longer required to carry old passports for India travel

    People of Indian origin (PIO) and the Indian diaspora having Overseas Citizens of India (OCI) cards are now not required to carry their old, expired passports for travel to India.

    UPSC can ask statement based question in prelims based on the definition and privileges of OCI card-holders.

    Who is an Overseas Citizen?

    • An OCI is a category introduced by the government in 2005.
    • Persons of Indian Origin (PIOs) of certain categories as specified in the Citizenship Act, 1955 are eligible for being OCI cardholders.
    • Some of the benefits for PIO and OCI cardholders were different until 2015 when the government merged these two categories.
    • The MHA defines an OCI as a person who was a citizen of India on or after January 26, 1950; or was eligible to become a citizen of India on that date; or who is a child or grandchild of such a person, among other eligibility criteria.
    • According to Section 7A of the OCI card rules, an applicant is not eligible for the OCI card if he, his parents or grandparents have ever been a citizen of Pakistan or Bangladesh.

    Privileges to an OCI

    • OCI cardholders can enter India multiple times, get a multipurpose lifelong visa to visit India, and are exempt from registering with Foreigners Regional Registration Office (FRRO) no matter how long their stay.
    • If an individual is registered as an OCI for a period of five years, he/she are eligible to apply for Indian citizenship.
    • At all Indian international airports, OCI cardholders are provided with special immigration counters.
    • OCI cardholders can open special bank accounts in India, they can buy the non-farm property and exercise ownership rights and can also apply for a driver’s license and PAN card.
    • However, OCI cardholders do not get voting rights, cannot hold a government job and purchase agricultural or farmland.
    • They cannot run for public office either, nor can they travel to restricted areas without government permission.

    Why such a move?

    • There had been inconvenience caused to members of the Indian diaspora due to certain OCI card rules as they undertook to travel to India during the pandemic.
    • He said some of the passengers were not allowed to board flights to India and were sent back from airports as they were not carrying their old foreign passports, which was required as per government rules.
    • The OCI card, among other benefits, allows multiple entries, multi-purpose lifelong visa to an Indian-origin foreign national to visit India.
    • Under the provisions of the OCI card, which gives the cardholder a lifelong visa to India, those below 20 years and above 50 years need to renew their OCI card every time they have their passport renewed.

    Back2Basics: PIO vs. OCI

  • Declining importance of Parliament

    The article highlight the deterioration in the function of Parliament  and its implications.

    Declining seating of houses of Parliament

    • The current Budget session of Parliament ended on Thursday, two weeks ahead of the original plan.
    • This follows the trend of the last few sessions:
    • The Budget session of 2020 was curtailed ahead of the lockdown.
    • A short 18-day monsoon session ended after 10 days as several Members of Parliament and Parliament staff got affected by COVID-19.
    • The winter session was cancelled.
    • As a result, the fiscal year 2020-21 saw the Lok Sabha sitting for 34 days (and the Rajya Sabha for 33), the lowest ever.
    • This has implications for the proper legislative scrutiny of proposed legislation as well as government functioning and finances.
    • There is no reason why Parliament could not adopt remote working and technological solutions, as several other countries did.

    Passage of important bills without scrutiny

    • During this session, 13 Bills were introduced, and not even one of them was referred to a parliamentary committee for examination.
    • The Government of National Capital Territory of Delhi (Amendment) Bill, 2021 was passed by the Parliament.
    • This bill shifts governance from the legislature and the Chief Minister to the Lieutenant Governor.
    • The Mines and Minerals (Development and Regulation) Amendment Bill, 2021, amends the Mines and Minerals Act, 1957 to remove end-use restrictions on mines and ease conditions for captive mines.
    • This Bill was passed by both Houses within a week.
    • The National Bank for Financing Infrastructure and Development (NaBFID) Bill, 2021 — to create a new government infrastructure finance institution and permit private ones in this sector was passed within three days of introduction.
    • The Insurance (Amendment) Bill, 2021 which increases FDI in insurance companies from 49% to 74% also took just a week between introduction and passing by both Houses.
    • In all, 13 Bills were introduced in this session, and eight of them were passed within the session.
    • This quick work should be read as a sign of abdication by Parliament of its duty to scrutinise Bills, rather than as a sign of efficiency.
    • Also, the percentage of Bills referred to committees declined from 60% and 71% in the 14th Lok Sabha (2004-09) and the 15th Lok Sabha, respectively, to 27% in the 16th Lok Sabha and just 11% in the current one.

    Money Bill classification issue

    • The Finance Bills, over the last few years, have contained several unconnected items such as restructuring of tribunals, introduction of electoral bonds, and amendments to the foreign contribution act.
    • Some of the earlier Acts, including the Aadhaar Act and Finance Act, have been referred to a Constitution Bench of the Supreme Court.
    • It would be useful if the Court can give a clear interpretation of the definition of Money Bills and provide guide rails within which Bills have to stay to be termed as such.

    Passage of Budget without discussion

    • The Constitution requires the Lok Sabha to approve the expenditure Budget of each department and Ministry.
    • The Lok Sabha had listed the budget of just five Ministries for detailed discussion and discussed only three of these; 76% of the total Budget was approved without any discussion.
    • This behaviour was in line with the trend of the last 15 years.

    No Deputy Speaker

    • Article 93 of the Constitution states that “… The House of the People shall, as soon as may be, choose two members of the House to be respectively Speaker and Deputy Speaker….”
    • A striking feature of the current Lok Sabha is the absence of a Deputy Speaker.
    • By the time of the next session of Parliament, two years would have elapsed without the election of a Deputy Speaker.

    Way forward

    • In order to fulfil its constitutional mandate, it is imperative that Parliament functions effectively.
    • This will require making and following processes:
    • 1) Creating a system of research support to Members of Parliament.
    • 2) Providing sufficient time for MPs to examine issues.
    • 3 )Requiring that all Bills and budgets are examined by committees and public feedback is taken.

    Consider the question “Parliament as a representative body is expected to examine all legislative proposals, understand their nuances and implications and decide on the appropriate way forward. Yet, more and more Bills are passed without enough deliberations. What are the implications of it? Suggest the measures to deal with it.”

    Conclusion

    In sum, Parliament needs to ensure sufficient scrutiny over the proposals and actions of the government.

  • Here is why the electoral bonds scheme must go

    The article highlights the constitutional objections to the electoral bond scheme.

    Context

    • The Supreme Court, after a brief hearing on March 24, reserved orders on the question of whether or not to stay the electoral bond scheme, ahead of the upcoming State elections.

    Issues

    1) Against democracy

    • When citizens cast their votes they have the right to do so on the basis of full and complete information.
    • And there is no piece of information more important than the knowledge of who funds political parties.
    • The Indian Supreme Court has long held — and rightly so — that the “right to know”, especially in the context of elections, is an integral part of the right to freedom of expression under the Indian Constitution.
    • By keeping this knowledge from citizens and voters, the electoral bonds scheme violates fundamental tenets of our democracy.

    2) Aids role of money in influencing politics

    • It is equally important that if a democracy is to thrive, the role of money in influencing politics ought to be limited.
    • In many advanced countries, for example, elections are funded publicly.
    • The purpose of this is to guarantee a somewhat level playing field, so that elections are a battle of ideas and not money.
    • The electoral bonds scheme, however, removes all pre-existing limits on political donations, and effectively allows well-resourced corporations to buy politicians by paying immense sums of money.

    3) Creates asymmetry in donation

    • Electoral bonds allow receiving limitless donation and that too asymmetrically.
    •  Since the donations are routed through the State Bank of India, it is possible for the government to find out who is donating to which party, but not for the political opposition to know.
    • This, in turn, means that every donor is aware that the central government can trace their donations back to them.
    • Statistics bear this out: a vast majority of the immensely vast sums donated through multiple electoral cycles over the last three years, have gone to the ruling party.

    Issues with the government’s defence

    • The government has attempted to justify the electoral bonds scheme by arguing that its purpose is to prevent the flow of black money into elections.
    •  It is entirely unclear what preventing black money has to do with donor anonymity, making donations limitless, and leaving citizens in the dark.
    • Indeed, as the electoral bonds scheme allows even foreign donations to political parties.
    • With this the prospects of institutional corruption including by foreign sources increases with the electoral bonds scheme, instead of decreasing.

    Constitutional objections

    • The objections to the electoral bonds scheme, highlighted above, are not objections rooted in political morality, or in public policy, they are constitutional objections.
    • The right to know has long been enshrined as a part of the right to freedom of expression.
    • Uncapping political donations and introducing a structural bias into the form of the donations violate both the guarantee of equality before law, as well as being manifestly arbitrary.

    Judiciary must act

    • Governments derive their legitimacy from elections.
    • However, for just that reason the process that leads up to the formation of the government should be policed with particular vigilance.
    • In other words, the electoral legitimacy of the government is questionable if the electoral process has become questionable.
    • The courts is the only independent body that can adequately umpire and enforce the ground rules of democracy.

    Consider the question “How electoral bond scheme can play role in preventing black money in elections? What are the issues with the electoral bond scheme? 

    Conclusion

    The government should take into account the distorting effect of the electoral bonds scheme and take measures to remove the provisions in the scheme that leaves the scope for its misuse.

  • Sixth Schedule areas of Assam

    The Ministry of Home Affairs (MHA) has informed the Lok Sabha that presently, there is no proposal to implement the Panchayat system in the Sixth Schedule areas of Assam.

    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

    What is the Sixth Schedule?

    • The Sixth Schedule consists of provisions for the administration of tribal areas in Assam, Meghalaya, Tripura and Mizoram, according to Article 244 of the Indian Constitution.
    • Passed by the Constituent Assembly in 1949, it seeks to safeguard the rights of the tribal population through the formation of Autonomous District Councils (ADC).
    • ADCs are bodies representing a district to which the Constitution has given varying degrees of autonomy within the state legislature.
    • The governors of these states are empowered to reorganize the boundaries of the tribal areas.
    • In simpler terms, she or he can choose to include or exclude any area, increase or decrease the boundaries and unite two or more autonomous districts into one.
    • They can also alter or change the names of autonomous regions without separate legislation.

    Autonomous districts and regional councils

    • The ADCs are empowered with civil and judicial powers can constitute village courts within their jurisdiction to hear the trial of cases involving the tribes.
    • Governors of states that fall under the Sixth Schedule specify the jurisdiction of high courts for each of these cases.
    • Along with ADCs, the Sixth Schedule also provides for separate Regional Councils for each area constituted as an autonomous region.
    • In all, there are 10 areas in the Northeast that are registered as autonomous districts – three in Assam, Meghalaya and Mizoram and one in Tripura.

    The specified tribal areas are the North Cachar Hills, Karbi Anglong and the Bodoland Territorial Area in Assam, Khasi Hills, Jaintiya Hills and Garo Hills in Meghalaya, Tribal Areas in Tripura, Chakma, Mara and Lai districts in Mizoram.

    • These regions are named as district council of (name of district) and regional council of (name of region).
    • Each autonomous district and regional council consists of not more than 30 members, of which four are nominated by the governor and the rest via elections. All of them remain in power for a term of five years.

  • Rajya Sabha passes MTP Bill, 2020

    The Rajya Sabha has passed the Medical Termination of Pregnancy (Amendment) Bill, 2020 that increases the time period within which an abortion may be carried out.

    What are the differing opinions with regards to the Termination of Pregnancy (MTP) Amendment Bill, 2020? Discuss.

    MTP Bill, 2020

    The MTP Bill was passed in Lok Sabha in March 2020. Its salient features included:

    • Proposing requirement for the opinion of one provider for termination of pregnancy, up to 20 weeks of gestation and introducing the requirement of the opinion of two providers for termination of pregnancy of 20-24 weeks of gestation.
    • Enhancing the upper gestation limit from 20 to 24 weeks for special categories of women which will be defined in the amendments to the MTP Rules and would include ‘vulnerable women including survivors of rape, victims of incest and other vulnerable women (like differently-abled women, Minors) etc.
    • Upper gestation limit not to apply in cases of substantial foetal abnormalities diagnosed by Medical Board. The composition, functions and other details of the Medical Board to be prescribed subsequently in Rules under the Act.
    • Anonymity of the person: The name and other particulars of a woman whose pregnancy has been terminated shall not be revealed except to a person authorised in any law for the time being in force.

    Benefits sought with the bill

    • It is seen as a step towards the safety and well-being of the women and many women will be benefitted from this.
    • Recently several petitions were received by the Courts seeking permission for aborting pregnancies at a gestational age beyond the present permissible limit on grounds of foetal abnormalities or pregnancies due to sexual violence faced by women.
    • The proposed increase in gestational age will ensure dignity, autonomy, confidentiality and justice for women who need to terminate the pregnancy.

    Flaws in the bill

    • The Bill allows abortion after 24 weeks only in cases where a Medical Board diagnoses substantial foetal abnormalities.
    • This implies that for a case requiring abortion due to rape, that exceeds 24-weeks, the only recourse remains through a Writ Petition.
    • The Bill does not specify the categories of women who may terminate pregnancies between 20-24 weeks and leaves it to be prescribed through Rules.
    • The Act (and the Bill) requires an abortion to be performed only by doctors with a specialization in gynaecology or obstetrics.
    • As there is a 75% shortage of such doctors in community health centres in rural areas, pregnant women may continue to find it difficult to access facilities for safe abortions.

    Key Issues and Analysis

    • There are differing opinions with regard to allowing abortions. One opinion is that terminating a pregnancy is the choice of the pregnant woman and a part of her reproductive rights.
    • The other is that the state has an obligation to protect life, and hence should provide for the protection of the foetus.
    • Across the world, countries set varying conditions and time limits for allowing abortions, based on foetal health, and risk to the pregnant woman.
    • Several Writ Petitions have been filed by women seeking permission to abort pregnancies beyond 20-weeks due to foetal abnormalities or rape.

  • Anti-defection law: when a nominated MP loses RS membership

    A nominated MP had to resign from Rajya Sabha before the completion of his term due to the Anti-defection law.

    The story of Nominated Members

    • During the making of the Constitution, members of the Constituent Assembly felt that Rajya Sabha should have members who might not win elections but will bring knowledge and expertise to discussions.
    • It led to Rajya Sabha having 12 nominated members from different walks of life.
    • The broad criterion for their nomination is that they should have distinguished themselves in fields like literature, science, art, and social service.
    • The President nominates such individuals as recommended by the Centre.
    • Nominated members have the same rights and privileges as elected members, with one notable difference — they cannot vote in the election of the President.

    Anti-defection law

    • In 1985 the Tenth Schedule, popularly known as the anti-defection law, was added to the Constitution.
    • But its enactment was catalyzed by the political instability after the general elections of 1967.
    • This was the time when multiple state governments were toppled after MLAs changed their political loyalties.
    • The purpose of the 1985 Constitution Amendment was to bring stability to governments by deterring MPs and MLAs from changing their political parties on whose ticket they were elected.
    • The penalty for shifting political loyalties is the loss of parliamentary membership and a bar on becoming a minister.

    Try this PYQ:

    Consider the following statements:

    1. The Chairman and the Deputy Chairman of the Rajya Sabha are not the members of that House.
    2. While the nominated members of the two Houses of the Parliament have no voting right in the presidential election, they have the right to vote in the election of the Vice President.

    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

    What invites defection?

    The law covers three types of scenarios with respect to MP switching parties.

    1. The first is when a member elected on the ticket of a political party “voluntarily gives up” membership of such a party or votes in the House contrary to the wishes of the party.
    2. The second possibility is when an MP who has won his or her seat as an independent candidate after the election joins a political party. In both these instances, the MP lose the seat in the House on changing (or joining) a party.
    3. The third scenario relates to nominated MPs. In their case, the law specifies that within six months of being nominated to the House, they can choose to join a political party.

    Why is a nominated member given 6month time?

    • The time is given so that if a nominated MP is not a member of a political party, they can decide to join one if they want.
    • But if they don’t join a political party during the first six months of their tenure, and join a party thereafter, then they lose their seat in Parliament.

  • Mandal 2.0 Moment: SC seeks States’ views on 50% Cap on Quota

    The Supreme Court sought responses from all states on whether the 50% ceiling limit on reservation needs to be reconsidered.

    Debate: The 50% Cap

    • The ceiling was imposed by a nine-judge Constitution Bench in the Indira Sawhney case in 1992, wherein the court strictly held that reservation cannot exceed 50%.
    • However, the bench did indicate that in exceptional circumstances, reservation could be extended.

    A case for Maratha Reservation

    • The court is set to examine whether the Maharashtra State Backward Classes Commission had made up a case of “extraordinary circumstances” of deprivation suffered by the Maratha community.
    • In fact, the Bombay High Court had, in June 2019, reduced the quantum of reservation for Marathas from the 16% recommended by the Gaikwad Commission to 12% in education and 13% in employment.
    • The ruling was challenged before a Supreme Court Bench, which referred it to a larger Constitution Bench.

    Challenges to the Maratha quota

    There are two main constitutional questions for the court to consider in the challenge to the Martha quota law.

    1. The first is whether states can declare a particular caste to be a socially and educationally backward class.
    2. The second is whether states can breach the 50% ceiling for “vertical quotas” set by the Supreme Court.

    What is the Indra Sawhney Case?

    • In 1979, the Second Backward Classes Commission (Mandal Commission) was set up to determine the criteria for defining the socially and educationally backward classes.
    • The Mandal report identified 52% of the population at that time as “Socially and Economically Backward Classes” (SEBCs) and recommended 27% reservation for SEBCs in addition to the previously existing 22.5% reservation for SC/STs.
    • In 1990, when the V P Singh led-government set out to implement the Mandal report, it was challenged in court amidst widespread protests against the move.
    • The case came up before a nine-judge Bench and a 6:3 verdict was delivered in 1992.

    What did the verdict say?

    • The court upheld the office memorandums that essentially implemented the Mandal report.
    • The majority opinion said the executive orders mandating 27% reservation for backward castes were valid.
    • It held that the reservation was made not just on the basis of caste, even if it appears so, but on the basis of objective evaluation of social and educational backwardness of classes.
    • The inclusion in the list of Backward Classes is very much warranted by Article 15(4).

    Precedents set by the judgment

    The landmark Indra Sawhney ruling set two important precedents.

    1. The court said that the criteria for a group to qualify for reservation are “social and educational backwardness”.
    2. It also reiterated the 50% limit to vertical quotas it had set out earlier. The court said this 50% limit will apply — unless in “exceptional circumstances”.

    How does the Maratha reservation relate to the Indra Sawhney case?

    • Based on the 102nd Amendment to the Constitution, which gives the President powers to notify backward classes, the court will have to look into whether states have similar powers.
    • Also, since this power flows from the Constitution, whether the President is still required to comply with the criteria set by the Supreme Court in the Mandal case.
    • The relevance of the Indra Sawhney criteria is also under question in another case in which the validity of the 103rd Amendment has been challenged.
    • The 103rd Amendment, passed in 2019, provides for 10% reservation in government jobs and educational institutions for the economically weaker section in the unreserved category.
    • Since the Indra Sawhney verdict gives a pass to a breach of the 50% quota rule only in exceptional circumstances, the court will have to test if the Maharashtra law qualifies to be an exception.

    Rising aspirations for backwardness!

    Similar to the Maratha issue are the cases of Patels in Gujarat, Jats in Haryana, and Kapus in Andhra Pradesh.

    Have any other states breached the 50% ceiling before?

    • States have breached the 50% ceiling before and intend to bring more reservation. A notable example is in Tamil Nadu.
    • Its Act of 1993, reserves 69% of the seats in colleges and jobs in the state government.
    • However, this was done by amending the Constitution, to place the law in the Ninth Schedule after the Indra Sawhney judgment.

    How does the Ninth Schedule come to the picture?

    • The Ninth Schedule provides the law with a “safe harbour” from judicial review under Article 31B of the Constitution.
    • Laws placed in the Ninth Schedule cannot be challenged for reasons of violating any fundamental right protected under the Constitution.
    • However, when the Tamil Nadu law was challenged in 2007 (I R Coelho v State of Tamil Nadu), the Supreme Court ruled that while laws placed under Ninth Schedule cannot be challenged on the grounds of violation of fundamental rights.
    • However, they can be challenged on the ground that it violates the basic structure of the Constitution.
    • A later Bench was to decide whether the Tamil Nadu law itself (breaching the 50% ceiling) violates basic structure, based on the I R Coelho verdict. The Bench has not yet been set up.

  • [pib] India’s rebuttal to Freedom House Report

    The Freedom House report titled “Democracy under Siege” in which it has been claimed that India’s status as a free country has declined to “partly free”, is misleading, incorrect, and misplaced.

    The US who claims to be the champion of Human Rights has turned another sermon to India through its Freedom House Report. This report presents an inherently flawed and biased analysis of Indian democracy.

    Rebuttal to specific points

    (1) Discriminatory policies against Minorities

    • The GoI treats all its citizens with equality as enshrined under the Constitution of the country and all laws are applied without discrimination.
    • Due process of law is followed in matters relating to law and order, irrespective of the identity of the alleged instigator.
    • With specific reference to the North East Delhi riots in February 2020, the law enforcement machinery acted swiftly in an impartial and fair manner.
    • Proportionate and appropriate actions were taken to control the situation.
    • Necessary legal and preventive actions were taken by the law enforcement machinery on all complaints/calls received, as per law and procedures.

    (2) Use of Sedition Law

    • “Public Order’ and ‘Police’ are State subjects under India’s federal structure of governance.
    • The responsibility of maintaining law and order, including investigation, registration, and prosecution of crimes, protection of life and property, etc., rests primarily with the concerned State governments.
    • Therefore, measures as deemed fit are taken by law enforcement authorities to preserve public order.

    (3) Government response to COVID-19 through Lockdown

    • Between March 16 to 23, most State governments/UT resorted to partial or full Lockdown in their respective State/ UT based on their assessment of the COVID-19 situation.
    • Any mass movement of people would have spread the disease rapidly throughout the country.
    • The government was fully conscious that during the period of an inevitable Lockdown, people should not face undue distress.
    • India has, on a per capita basis, registered one of the lowest rates of active COVID-19 cases and COVID-19 related deaths globally.

    (4) Government response on human rights organizations

    • The Indian Constitution provides for adequate safeguards under various statutes, including the Protection of Human Rights Act 1993 for ensuring the protection of human rights.
    • This Act provides for the constitution of an NHRC and SHRC in the States for better protection of human rights and for matters connected to this subject.

    (5) Intimidation of academics and journalists and crackdown on expressions of dissent by media

    • The Indian Constitution provides for freedom of expression under Article 19. Discussion, debate, and dissent are a part of Indian democracy.
    • The GoI attaches the highest importance to the safety and security of all residents of the country, including journalists.
    • It has issued a special advisory to States and UTs on the safety of journalists requesting them to strictly enforce the law to ensure the safety and security of media persons.

    (6) Internet shutdowns

    • Temporary suspension of the telecom services, including the internet, is governed under the provisions of the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017.
    • Hence, the temporary suspension of telecom/internet services is resorted to with the over-arching objective of maintaining law and order under strict safeguards.

    (7) FCRA amendment leading to freezing of Amnesty International’s assets has led to declining in ranking

    • Amnesty International had received permission under the FCRA Act only once and that too 20 years ago.
    • Since then Amnesty International, despite its repeated applications, has been denied FCRA approval by successive governments since as per law it is not eligible to get such approval.
    • However, in order to circumvent the FCRA regulations, Amnesty U.K. remitted large amounts of money to four entities registered in India, by misclassifying the remittance as FDI.
    • A significant amount of foreign money was also remitted to Amnesty India without MHA’s approval under FCRA.
    • This malafide rerouting of money was in contravention of extant legal provisions.
    • Owing to these illegal practices of Amnesty, the previous government had also rejected the repeated applications of Amnesty to receive funds from overseas.