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Subject: Fundamental Rights,DPSP

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

  • What is the ‘Office of Profit’?

    The Joint Parliamentary Committee on Office of Profit has deliberated on whether a Parliamentarian can continue to teach at University and if this draws the provisions of “Office of Profit” rules.

    Note: The Constitution of India does not define the Office of Profit. It has only mentioned it under Article 102 (1) and Article 191 (1).

    The concept of ‘Office of Profit’

    • MPs and MLAs, as members of the legislature, hold the government accountable for its work.
    • The essence of disqualification is if legislators hold an ‘office of profit’ under the government, they might be susceptible to government influence, and may not discharge their constitutional mandate fairly.
    • The intent is that there should be no conflict between the duties and interests of an elected member.
    • Hence, the office of profit law simply seeks to enforce a basic feature of the Constitution- the principle of separation of power between the legislature and the executive.

    What governs the term?

    • At present, the Parliament (Prevention of Disqualification) Act, 1959, bars an MP, MLA or an MLC from holding any office of profit under the central or state government unless it is exempted.
    • However, it does not clearly define what constitutes an office of profit.
    • Legislators can face disqualification for holding such positions, which bring them financial or other benefits.
    • Under the provisions of Article 102 (1) and Article 191 (1) of the Constitution, an MP or an MLA (or an MLC) is barred from holding any office of profit under the Central or State government.

    An Un-defined term

    • The officials of the law ministry are of the view that defining an office of profit could lead to the filing of a number of cases with the Election Commission and the courts.
    • Also, once the definition is changed, one will also have to amend various provisions in the Constitution including Article 102 (1) (a) and Article 109 (1) (a) that deal with the office of profit.
    • It will have an overarching effect on all the other sections of the Constitution.

    Factors constituting an ‘office of profit’

    • The 1959 law does not clearly define what constitutes an office of profit but the definition has evolved over the years with interpretations made in various court judgments.
    • An office of profit has been interpreted to be a position that brings to the office-holder some financial gain, or advantage, or benefit. The amount of such profit is immaterial.
    • In 1964, the Supreme Court ruled that the test for determining whether a person holds an office of profit is the test of appointment.

    Several factors are considered in this determination including factors such as:

    1. whether the government is the appointing authority,
    2. whether the government has the power to terminate the appointment,
    3. whether the government determines the remuneration,
    4. what is the source of remuneration, and
    5. the power that comes with the position.

  • Mahajan Commission Report on Maha-K’taka boundary dispute

    A Maharashtra leader has sparked a controversy, when he called the incorporation of Belgaum (Belagavi), Karwar and Nipani areas of Karnataka into Maharashtra, as a dream of the ruling party.

    Try answering this

    Q.The linguistic re-organization of India in the post-Independence period has prevented its balkanization, unlike our neighbourhood. Comment.

    Maha-K’taka boundary dispute

    • The erstwhile Bombay Presidency, a multilingual province, included the present-day Karnataka districts of Vijayapura, Belagavi, Dharwad and Uttara-Kannada.
    • In 1948, the Belgaum municipality requested that the district, having a predominantly Marathi-speaking population, be incorporated into the proposed Maharashtra state.
    • However, the States Reorganization Act of 1956, which divided states into linguistic and administrative lines, made Belgaum and 10 taluka of Bombay State a part of the then Mysore State

    The Mahajan Commission

    • While demarcating borders, the Reorganization of States Commission sought to include talukas with a Kannada-speaking population of more than 50 per cent in Mysore.
    • Opponents of the region’s inclusion in Mysore argued, and continue to argue, that Marathi-speakers outnumbered Kannadigas who lived there in 1956.
    • In September 1957, the Bombay government echoed their demand and lodged a protest with the Centre, leading to the formation of the Commission under former CJI Mehr Chand Mahajan in October 1966.

    Beginning of the dispute

    • The Commission recommended that 264 villages be transferred to Maharashtra (which formed in 1960) and that Belgaum and 247 villages remain with Karnataka.
    • Maharashtra rejected the report, calling it biased and illogical, and demanded another review.
    • Karnataka welcomed the report and has ever since continued to press for implementation, although this has not been formally done by the Centre.

    A case pending in the Supreme Court

    • Successive governments in Maharashtra have demanded their inclusion within the state– a claim that Karnataka contests.
    • In 2004, the Maharashtra government moved the Supreme Court for a settlement of the border dispute under Article 131(b) of the Constitution.
    • It demanded 814 villages from Karnataka on the basis of the theory of village being the unit of calculation, contiguity and enumerating linguistic population in each village.
    • The case is pending in the apex court.

  • Article 32 and the Supreme Court

    A Supreme Court bench headed by CJI has observed that it is “trying to discourage” individuals from filing petitions under Article 32 of the Constitution.

    Try this PYQ:

    Q.Which of the following is included in the original jurisdiction of the Supreme Court?

    1. Dispute between the Government of India and one or more States
    2. A dispute regarding elections to either House of the parliament or that of Legislature of a State
    3. A dispute between the Government of India and Union Territory
    4. A dispute between two or more States.

    Select the correct answer using the codes given below:

    (a) 1 and 2

    (b) 2 and 3

    (c) 1 and 4

    (d) 3 and 4

    What is Article 32?

    • Article 32 deals with the ‘Right to Constitutional Remedies’, or affirms the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred in Part III of the Constitution.
    • It is one of the fundamental rights listed in the Constitution that each citizen is entitled.
    • It states that the Supreme Court “shall have the power to issue directions or orders or writs for the enforcement of any of the rights conferred by this Part”.
    • The right guaranteed by this Article “shall not be suspended except as otherwise provided for by this Constitution”.
    • Dr B R Ambedkar has called it the very soul and heart of the Constitution. It cannot be suspended except during the period of Emergency.

    Rights protected by A32

    • The article is included in Part III of the Constitution with other fundamental rights including to Equality, Freedom of Speech and Expression, Life and Personal Liberty, and Freedom of Religion.
    • Only if any of these fundamental rights is violated can a person can approach the Supreme Court directly under Article 32.

    Types of Writs under it

    Both the High Courts and the Supreme Court can be approached for violation or enactment of fundamental rights through five kinds of writs:

    1. Habeas corpus (related to personal liberty in cases of illegal detentions and wrongful arrests)
    2. Mandamus — directing public officials, governments, courts to perform a statutory duty;
    3. Quo Warranto — to show by what warrant is a person holding public office;
    4. Prohibition — directing judicial or quasi-judicial authorities to stop proceedings which it has no jurisdiction for; and
    5. Certiorari — re-examination of an order given by judicial, quasi-judicial or administrative authorities.
    • In civil or criminal matters, the first remedy available to an aggrieved person is that of trial courts, followed by an appeal in the High Court and then the Supreme Court.
    • When it comes to violation of fundamental rights, an individual can approach the High Court under Article 226 or the Supreme Court directly under Article 32.

    Supreme Court’s recent observations

    • The observation came during the hearing of a petition seeking the release of a journalist, who was arrested while reporting on an alleged gangrape and murder.
    • The court asked why the petitioners could not go to the High Court first.
    • In another case invoking Article 32, a Nagpur-based man was arrested for alleged defamatory content against Maharashtra CM, the same Bench directed him to approach the High Court first.

  • Governor’s inaction and judicial scrutiny

    The inaction by the Governor of Tamil Nadu on advice to free the convict has raised the possibility of judicial intervention due to undue delay.

    Inaction by Governor on advice

    • The Governor of Tamil Nadu has continued to withhold his decision on an application seeking pardon by one of the seven prisoners convicted in the Rajiv Gandhi assassination case.
    • In September 2018, the Supreme Court (SC) had observed, while hearing a connected writ petition, that the Governor should take a decision
    • The inaction by the Governor now has given rise to constitutional fault lines within the Executive arm of the government.

    Past judgements on pardoning power

    • In Maru Ram v. Union of India (1981)  Supreme Court held that the pardoning power “under Articles 72 and 161 of the Constitution can be exercised by the Central and the State Governments, not by the President or Governor on their own.”
    • The majority judgment had said that the “advice of the appropriate Government binds the Head of the State”.
    • Therefore, a Governor is neither expected, nor is empowered, to test the constitutionality of the order or resolution presented to her.

    Issue of delay in decision of mercy petition

    • Recently, the Supreme Court, had examined the inordinate delay by the President and the Governor — in taking decisions on mercy petitions.
    • The Supreme Court, in the case of Shatrugan Chouhan v. Union of India, laid down the principle of “presumption of dehumanising effect of such delay”.
    • The Supreme Court confirmed that the due process guaranteed under Article 21 was available to each and every prisoner “till his last breath”.

    Judicial scrutiny of the actions of Speakers

    • It was hitherto believed that the powers of the Speaker, holding a constitutional office and exercising powers granted under the Constitution, were beyond the scope of a ‘writ of mandamus’.
    • In the recent case of Keisham Meghachandra Singh v. Hon’ble Speaker (2020), the Supreme Court was asked to examine the Speaker’s inaction with regard to disqualification proceedings.
    • However, the apex court, referering to Rajendra Singh Rana v. Swami Prasad Maurya (2007), had confirmed its view that the “failure on the part of the Speaker to decide the application seeking a disqualification cannot be said to be merely in the realm of procedure”
    • Consequently, breaking years of convention, the SC set the time period of four weeks to decide the disqualification petition.
    • By doing so, the Supreme Court has indicated that it would not be precluded from issuing directions in aid of a constitutional authority “arriving at a prompt decision”.

    Consider the question “The undue delays and inactions by the constitutional functionaries threaten to widen the constitutional faultlines among the Executives. Comment.”

    Conclusion

    Instead of relying on the judicial intervention in the event of delays, it would be better to have a set time limit for arriving at decision by the constitutional judiciary.

  • Contempt of Court and A-G’s consent

    Attorney-General gave his consent for the initiation of criminal contempt proceedings against the stand-up comedian for his tweets following a Supreme Court’s decision to grant interim bail to a news anchor.

    Note important power, functions and limitations of AGI. A bluff can be created with the dicey statements in the prelims.

    Also read:

    [Burning Issue] Free Speech Vs. Contempt of Court

    What is Contempt of Court?

    • According to the Contempt of Courts Act, 1971, contempt of court can either be civil contempt or criminal contempt.
    • Civil contempt means wilful disobedience of any judgment, decree, direction, order, writ or another process of a court, or wilful breach of an undertaking given to a court.
    • Criminal contempt, on the other hand, is attracted by the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which:

    (i) Scandalizes or tends to scandalise, or lowers or tends to lower the authority of, any court; or

    (ii) Prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or

    (iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner

    • In 2006, the government brought in an amendment, which now provides “truth” as defence provided it is bona fide and in the public interest.

    Why is the A-G’s consent needed to initiate contempt proceedings?

    • In cognizance of criminal contempt, The Contempt of Courts Act, 1971 has a provision under Subsection 1 of Section 15.
    • It reads that- in the case of criminal contempt, (other than contempt in the face of the Supreme Court or a High Court), the related court may take action on its own motion or on a motion made by (a) the Advocate-General, or (b) any other person, with the consent in writing of the Advocate-General.

    Back2Basics: Attorney General of India (AGI)

    • The AGI is the Indian government’s chief legal advisor and is a primary lawyer in the Supreme Court of India.
    • They can be said to be the advocate from the government’s side.
    • They are appointed by the President of India on the advice of Union Cabinet under Article 76(1) of the Constitution and holds office during the pleasure of the President.
    • They must be a person qualified to be appointed as a Judge of the Supreme Court ( i.e. a judge of some high court for five years or an advocate of some high court for ten years or an eminent jurist, in the opinion of the President and must be a citizen of India.).

    Functions and duties

    • The AGI is necessary for advising the Government of India on legal matters referred to them.
    • They also perform other legal duties assigned to them by the President.
    • The AGI has the right of audience in all Courts in India as well as the right to participate in the proceedings of the Parliament, though not to vote.
    • The AGI appears on behalf of Government of India in all cases (including suits, appeals and other proceedings) in the Supreme Court in which GoI is concerned.
    • They also represent the Government of India in any reference made by the President to the Supreme Court under Article 143 of the Constitution.
    • The AG is assisted by a Solicitor General and four Additional Solicitors General.

  • Comparing the mandates of election commissions of India and the U.S.

    In the recently concluded presidential election in the U.S., the delay in announcing the result and issue of denial of the election results by the incumbent has brought into focus the role played by flaws in the Americal democratic system in the conduct of the election. This article compares the powers of the elections bodies in the U.S. and India.

    Powers of ECI

    • Indian Constitution has given the ECI enormous power to be exercised during the course of elections, and strictly on other election-related matters.
    • By virtue of being the custodian of the electoral roll, all matters related to keeping the roll updated, fall under the ECI’s domain.
    • Even the higher judiciary does not interfere during the course of the election process.
    • Our Constitution’s fathers decided to limit the role of the judiciary in India to the post-election period, when election petitions may be filed.
    • This was done to avoid the impeding of the election process and delay election results interminably.

    Comparing the powers

    • The U.S. Federal Election Commission has a much narrower mandate than its Indian equivalent-Election Commission of India.
    • The Federal Election Commission was established comparatively recently — 1975, with the special mandate to regulate campaign finance issues.
    • As a watchdog, it is meant to disclose campaign finance information, to enforce the law regarding campaign contributions, and oversee public funding of the presidential election.
    • The Federal Election Commission is led by six Commissioners.
    • These six posts are supposed to be equally shared by Democrats and Republicans, and too have to be confirmed by the Senate.
    • This leads to decision making divided on partisan lines.

    What India can learn From the election process in the U.S.

    • In the 2016 U.S. election, almost a quarter of the votes counted arose from postal and early balloting.
    • In India we have confined postal ballots to only a few categories, of largely government staff (for example those on election duty) as well as the police or armed forces.
    • In these difficult times of the novel coronavirus pandemic, we need to widen this base to include all senior citizens and anyone else who may find it convenient to cast their vote early.

    Consider the question “Powers of the Election Commission of India are wider when compared with its counterpart in the U.S. In light of this, compare the powers of the two bodies and how these wide powers have enabled smooth power transfers in India.” 

    Conclusion

    In its functioning, Election Commission of India has broad powers as compared to its counterpart in the U.S. which has helped India see a smooth power transfer from the first election in India in 1951-52 and every single election since.

  • Pardoning Powers of Governor

    The Supreme Court has recently said that the investigation into the conspiracy behind Ex-PMs assassination in 1991 need not deter the Governor from deciding the plea for pardon of convicts.

    What did the court say exactly?

    • The court made it clear that it was reluctant to exercise its jurisdiction when the Governor was already seized of convict’s plea for a pardon under Article 161 of the Constitution.

    Try this PYQ now:

    Q.Which of the following are the discretionary powers given to the Governor of a State?

    1. Sending a report to the President of India for imposing the President’s rule
    2. Appointing the Ministers
    3. Reserving certain bills passed by the State Legislature for consideration of the President of India
    4. Making the rules to conduct the business of the State Government

    Select the correct answer using the code given below:

    (a) 1 and 2 only

    (b) 1 and 3 only

    (c) 2, 3 and 4 only

    (d) 1, 2, 3 and 4

    Pardoning Powers of Governor

    • Article 161 deals with the Pardoning Power of the Governor.
    • The Governor can grant pardons, reprieves, respites and remissions of punishments or suspend, remit and commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the state extends.
    • The Governor cannot Pardon a Death Sentence. (The President has the power of Pardon a death Sentence).
    • The Governor cannot grant pardon, reprieve, respite, suspension, remission or commutation in respect to punishment or sentence by a court-martial. However, the President can do so.

    Back2Basics:

    • Pardon: means completely absolving the person of the crime and letting him go free. The pardoned criminal will be like a normal citizen.
    • Commutation: means changing the type of punishment given to the guilty into a less harsh one, for example, a death penalty commuted to a life sentence.
    • Reprieve: means a delay allowed in the execution of a sentence, usually a death sentence, for a guilty person to allow him some time to apply for Presidential Pardon or some other legal remedy to prove his innocence or successful rehabilitation.
    • Respite: means reducing the quantum or degree of the punishment to a criminal in view of some special circumstances, like pregnancy, mental condition etc.
    • Remission: means changing the quantum of the punishment without changing its nature, for example reducing twenty-year rigorous imprisonment to ten years.

  • NHRC advisory on Sex Work

    The National Human Rights Commission (NHRC) recognised sex workers as informal workers in their advisory on “Human Rights of Women in the context of COVID 19”.

    Try this question for mains:

    Q.Recognizing sex workers as informal workers is a myopic and moralistic objection of human rights activism. Discuss.

    What is the NHRC advisory?

    • The NHRC in an effort to secure the rights of all excluded and marginalised women included sex workers as informal workers in their advisory on ‘Women at Work’.
    • The advisory asked officials to recognise sex workers as informal workers and register them so they are able to avail the benefits of a worker.
    • The Ministries have been asked to issue temporary documents so that the sex workers like all other informal workers, can access all welfare measures and health services.

    Why is the advisory important?

    • The advisory included sex workers among groups that they were considered as part of vulnerable and marginal sections of society thereby consider them as citizens who are deserving of the protection of human rights.
    • To do this, NHRC had sought expert advice, and both the government and constitutional bodies had stood by the protection of the human rights and dignity of sex workers.
    • For many, it is a welcome move and an important milestone in achieving constitutional rights for sex workers.

    Legality check of such work

    • The Immoral Traffic (Prevention) Act — lays down that the institution of prostitution is illegal.
    • Sex is either a consensual engagement between two adults or it is rape.
    • Commercial sex, if engaged through any institutional process is illegal and liable for prosecution. Hence the Government of India never recognised sex work.

    Criticisms of this advisory

    • The feminists who wish to end sex slavery are critical of this NHRC’s move.
    • There has not been a single instance where a woman has voluntarily gone into prostitution.
    • Therefore they have regarded this as an absolute failure to not provide viable options to women to engage in productive work.

    Back2Basics: National Human Rights Commission (NHRC)

    • The NHRC is a statutory public body constituted on 12 October 1993 under the Protection of Human Rights Ordinance of 28 September 1993.
    • It was given a statutory basis by the Protection of Human Rights Act, 1993 (PHRA).
    • This act defines Human Rights as “Rights Relating To Life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India.

    Functions

    • Proactively or reactively inquire into violations of human rights by the government of India or negligence of such violation by a public servant
    • Protection of human rights and recommend measures for their effective implementation

    Composition

    The NHRC consists of The Chairman and Four members (excluding the ex-officio members)

    • A Chairperson, who has been a Chief Justice of India or a Judge of the Supreme Court
    • One member who is, or has been, a Judge of the Supreme Court of India, or, One member who is, or has been, the Chief Justice of a High Court
    • Three Members, out of which at least one shall be a woman to be appointed from amongst persons having knowledge of, or practical experience in, matters relating to human rights
    • In addition, the Chairpersons of National Commissions serve as ex officio members.

  • What are District Development Councils (DDCs)?

    The Centre has amended the Jammu and Kashmir Panchayati Raj Act, 1989, to facilitate the setting up of District Development Councils (DDC).

    Tap to read more about: Reorganization of J&K

    What are DDCs?

    • DDCs structure will include a DDC and a District Planning Committee (DPC).
    • The J&K administration has also amended the J&K Panchayati Raj Rules, 1996, to provide for establishment of elected District Development Councils in J&K.
    • This system effectively replaces the District Planning and Development Boards in all districts, and will prepare and approve district plans and capital expenditure.

    Composition of DDCs

    • Their key feature, however, is that the DDCs will have elected representatives from each district.
    • Their number has been specified at 14 elected members per district representing its rural areas, alongside the Members of
    • Legislative Assembly chairpersons of all Block Development Councils within the district.

    Term of reference

    • The term of the DDC will be five years, and the electoral process will allow for reservations for Scheduled Castes, Scheduled Tribes and women.
    • The Additional District Development Commissioner (or the Additional DC) of the district shall be the Chief Executive Officer of the District Development Council.
    • The council, as stated in the Act, will hold at least four “general meetings” in a year, one in each quarter.

    What will be the process here onward?

    • The 14 constituencies for electing representatives to the DDC will have to be delimited.
    • These constituencies will be carved out of the rural areas of the district, and elected members will subsequently elect a chairperson and a vice-chairperson of the DDC from among themselves.

    Within the third tier, where do the DDCs fit in?

    • The DDCs replace the District Planning and Development Boards (DDBs) that were headed by a cabinet minister of the erstwhile state of Jammu and Kashmir.
    • For Jammu and Srinagar districts, as winter and summer capitals, the DDBs were headed by the Chief Minister.

    However, for Leh and Kargil districts, the Autonomous Hill Development Councils performed the functions designated for the DDBs.

    How will DPC work, then?

    • For every district there will be DPC comprising MPs representing the area, Members of the State Legislature representing the areas within the District etc. among others.
    • The MP will function as the chairperson of this committee.
    • The committee will “consider and guide” the formulation of development programmes for the district.
    • It would indicate priorities for various schemes and consider issues relating to the speedy development and economic uplift of the district.
    • It would function as a working group for formulation of periodic and annual plans for the district; and formulate and finalise the plan and non-plan budget for the district.

    Centre’s objective behind this new structure

    • The J&K administration in a statement said that the move to have an elected third tier of the Panchayati Raj institution marks the implementation of the entire 73rd Amendment Act in J&K.
    • The idea is that systems that had been made defunct by earlier J&K governments such as the panchayati raj system are being revived under the Centre’s rule in the state through the Lieutenant Governor’s administration.
    • In the absence of elected representatives in the UT, senior government officials argue that DDCs will effectively become representative bodies for development at the grassroots in the 20 districts of the UT.
    • They hope that this may draw some former legislators in as well.

  • Issues related to the Office of Governor

    The article deals with the role of Governor in the state and issue of misuse of discretionary power vested in him.

    Constitutional provision related to Governor

    • Various Raj Bhavans have become embroiled in controversies over the decade.
    • This is partly because the Constitution of India does allow a certain discretion to the Governor.
    • And a discretion invariably does get abused.
    • The framers of the Constitution had rejected an elected Governor because they were unambiguously clear that political power would only be vested with elected executives.
    • Yet, they were not inclined to put in a formal Instrument of Instructions for the Governors and were content to believe that political decencies and correctness would be observed both by the Governor and the Chief Minister.

    As the distinguished constitutional expert, Nani A. Palkhivala explained it “the Constitution intended that the Governor should be the instrument to maintain the fundamental equilibrium of the people of the State and to ensure that the mandates of the Constitution are respected in the State”. 

    Misuse of ‘discretion’ by Governors

    • As an appointee of the Union Government, the Governors have been prone to act on the instructions by ruling party at the Centre.
    • Inevitably the “discretion” in choosing a Chief Minister, or requiring a Chief Minister to prove his/her majority, or dismissing a Chief Minister, dissolving the legislature, recommending President’s Rule — came to be tainted with partisan political considerations.
    • More often than not, the governor’s discretion was abused, sometimes absurdly, even whimsically.
    • In the S.R. Bommai case, the Supreme Court did try through its judgment to prevent the misuse of power.

    Conclusion

    The guidelines given in the S.R. Bommai case should be adhered to by the Governor and should avoid conflict with the elected governments in the States.