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Subject: Fundamental Rights,DPSP

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

  • Understanding the significance of Kesavananda Bharati case

    The article revisits the impact and significance of the case for the democracy in India.

    Understanding the Basic Structure doctrine

    • Basic Structure and essential features doctrine was expounded in the Kesavananda Bharati case.
    • In the case, the validity of the 29th amendment which immunised, in the Ninth Schedule Kerala’s takeover of the religious mutt’s property was challenged.
    • Basic structure is the power of judicial review and essential features are what the Court identifies as such in the exercise of that power.
    • Justice Bhagwati remarkably enunciated as an essential feature the “harmony” between fundamental rights and directive principles.
    • The crucial message though is that the apex court has, in the rarest of rare cases, the constituent power to pronounce a constitutional amendment invalid.

    Limits on the powers of Supreme Court

    • The Court is bound by the “golden triangle” of rights created by Articles 14, 19, and 21 of the Constitution.
    • Court must derive the “spirit” of the Constitution by reference to the provisions of the Constitution.
    • Since 1973, the evidence shows the Apex Court has shown utmost democratic responsibility and rectitude in interpreting the doctrine of BSEF.

    Consider the question asked by the UPSC in 2019 “Parliament’s power to amend the Constitution is limited power and it cannot be enlarged into absolute power”. In light of this statement explain whether parliament under article 368 of the constitution can destroy the Basic Structure of the Constitution by expanding its amending power? “

    Conclusion

    The ultimate message of BSEF doctrine is not merely to set limits to the power of the managers of people, but to make little by little the tasks of emancipation less onerous.

  • Why the Question Hour matters?

    The decision to go without “Question Hour” during the Monsoon Session of Parliament has evoked serious concerns about the democratic functioning of the institution.

    This newscard is very narrative in its form and scope. Try this question as well-

    Q.Discuss the various instruments of Parliamentary Control in India.

    What is Question Hour?

    • Question Hour is the liveliest hour in Parliament. It is during this one hour that MPs ask questions of ministers and hold them accountable for the functioning of their ministries.
    • Prior to Independence, the first question asked of government was in 1893. It was on the burden cast on village shopkeepers who had to provide supplies to touring government officers.
    • The questions that MPs ask are designed to elicit information and trigger suitable action by ministries.
    • Over the last 70 years, MPs have successfully used this parliamentary device to shine a light on government functioning.
    • Their questions have exposed financial irregularities and brought data and information regarding government functioning to the public domain.
    • With the broadcasting since 1991, Question Hour has become one of the most visible aspects of parliamentary functioning.

    Its evolution

    • The right to question the executive has been exercised by members of the House from the colonial period.
    • The first Legislative Council in British India under the Charter Act, 1853, showed some degree of independence by giving members the power to ask questions to the executive.
    • Later, the Indian Council Act of 1861 allowed members to elicit information by means of questions.
    • However, it was the Indian Council Act, 1892, which formulated the rules for asking questions including short notice questions.
    • The next stage of the development of procedures related to questions came up with the framing of rules under the Indian Council Act, 1909, which incorporated provisions for asking supplementary questions by members.
    • The Montague-Chelmsford reforms brought forth a significant change in 1919 by incorporating a rule that the first hour of every meeting was earmarked for questions. Parliament has continued this tradition.
    • In 1921, there was another change. The question, on which a member desired to have an oral answer, was distinguished by him with an asterisk, a star. This marked the beginning of starred questions.

    Its significance

    • Question Hour is not only an opportunity for the members to raise questions, but it is a parliamentary device primarily meant for exercising legislative control over executive actions.
    • The government’s actions erode the constitutional mandate of parliamentary oversight over executive actions as envisaged under Article 75 (3) of the Indian Constitution.

  • Parliamentary oversight and cancellation of question hour

    The article highlights the significance of question hour in democracy.

    Context

    • The decision to go without “Question Hour” during the Monsoon Session of Parliament, beginning September 14, has evoked serious concerns about the democratic functioning of the institution.

    Significance of question hour

    • Question Hour is an opportunity for the members to raise questions,
    • It is also a parliamentary device primarily meant for exercising legislative control over executive actions.
    • It is also a device to criticise government policies and programmes, ventilate public grievances, expose the government’s lapses, extract promises from ministers.
    • In short, question hour helps to ensure accountability and transparency in governance.

    Right to question the executive: Historical background

    • The right to question the executive has been exercised by members of the House from the colonial period.
    • The first Legislative Council in British India under the Charter Act, 1853, allowed members the power to ask questions to the executive.
    • The Indian Council Act of 1861 allowed members to elicit information by means of questions.
    • However, it was the Indian Council Act, 1892, which formulated the rules for asking questions including short notice questions.
    • The Indian Council Act, 1909, which incorporated provisions for asking supplementary questions by members.
    • The Montague-Chelmsford reforms brought forth a significant change in 1919 by incorporating a rule that the first hour of every meeting was earmarked for questions.
    • Parliament has continued this tradition.
    • Since 1921, the question on which a member desired to have an oral answer, was distinguished by him with an asterisk, a star.

    Recent instances in which right to ask questions was curtailed

    • The government passed important bills in the first session of the 17th Lok Sabha before the formation of department-related standing committees.
    • The Constitution Amendment Bill on J&K was introduced without circulating copies to the members.
    • Several important bills were passed as Finance Bills to avoid scrutiny of the Rajya Sabha.
    • Standing committees are an extension of Parliament.
    • Any person has the right to present his/her opinion to a Bill during the process of consideration.

    Consider the question “What is the significance of question hour in the context of democracy in India? What is the implication of its suspension due to pandemic?”

    Conclusion

    The government’s actions erode the constitutional mandate of parliamentary oversight over executive actions as envisaged under Article 75 (3) of the Indian Constitution.

  • Explained: Maratha quota — the agitation, the politics

    The Supreme Court has referred to a Constitution Bench the question of whether states can exceed the 50% limit on quotas that were set by a nine-judge Bench in the landmark Indra Sawhney vs Union of India (1992) case.

    Practice question for mains:

    Q.The quota policy for OBCs needs an urgent revisit. Comment.

    Marathas and their ‘backwardness’

    • The Marathas are a politically dominant community who make up 32% of Maharashtra’s population.
    • They have historically been identified as a ‘warrior’ caste with large landholdings. Eleven of the state’s 19 chief ministers so far have been Marathas.
    • While the division of land and agrarian problems over the years have led to a decline of prosperity among middle- and lower-middle-class Marathas, the community still plays an important role in the rural economy.
    • The discontent in the community was a spillover into protests and unrest until the quota was announced.
    • The second phase of the protest saw a spate of suicides. The backward Marathwada region was the worst affected by the protests.

    What was the case?

    • A Bench of the SC heard a batch of petitions challenging reservations for Marathas in education and jobs in Maharashtra.
    • The petitions appealed a 2019 Bombay High Court decision that upheld the constitutional validity of the Maratha quota under the Socially and Educationally Backward Classes (SEBC) Act, 2018.
    • The Bench also heard a petition challenging admission to postgraduate medical and dental courses under the quota in the state.

    Earlier Bombay HC ruling

    • The Bombay HC ruled last year that the 16% quota granted by the state was not “justifiable”, and reduced it to 12% in education and 13% in government jobs, as recommended by the Maharashtra State Backward Class Commission (MSBCC).
    • The Bench ruled that the limit of the reservation should not exceed 50%.
    • However, in exceptional circumstances and extraordinary situations, this limit can be crossed subject to availability of quantifiable and contemporaneous data reflecting backwardness, the inadequacy of representation and without affecting the efficiency in administration.
    • The court relied heavily on the findings of the 11-member MSBCC, which submitted in November 2018 that the Maratha community is socially, economically and educationally backwards.

    Existing reservation

    • Following the 2001 State Reservation Act, the total reservation in Maharashtra was 52%: SCs (13%), STs (7%), OBCs (19%), Special Backward Class (2%), Vimukta Jati (3%), Nomadic Tribe B (2.5%), Nomadic Tribe C (3.5%) and Nomadic Tribe D (2%).
    • The quotas for Nomadic Tribes and Special Backward Classes have been carved out of the total OBC quota.
    • With the addition of 12-13% Maratha quota, the total reservation in the state went up to 64-65%.
    • The 10% quota for Economically Weaker Sections (EWS) announced by the Centre last year is also effective in the state.

  • Scrutinising government’s work in limited monsoon session

    The article analyses the impact of pandemic on the functioning legislatures and issues its implications.

    Context

    • Due to coronavirus pandemic, several States have held very short sessions in which they ratified a number of ordinances and hardly questioned any executive action over the last few months.

    Role of Parliament and Court

    • The government has the mandate to take decisions and perform various public tasks.
    • Government in turn is accountable to the legislature which can question it, and, as an extreme step, even replace it.
    • The legislature is accountable to citizens through regular elections.
    • Finally, constitutional courts are expected to ensure that all actions are made within the boundaries of the Constitution and laws made by the legislature.

    Dilution of the role of Parliament in  India

    • Indian Parliament has allowed its role to be diluted over the last few decades.
    • It has not questioned and monitored the activity of the executive.
    • Comparison with British Parliament: The United Kingdom’s joint parliamentary committee on human rights examined the proposals of a contact tracing app.
    • The committee recommended that an app could be used only if there was specific primary legislation to enable it. 
    •  India, in contrast, rolled out Aarogya Setu through executive decision, and has created a grey zone on whether it is mandatory or not.
    • Parliament should recover lost ground by fulfilling its constitutionally mandated role.

    Lack of parliamentary oversight during pandemic

    • Parliament will be meeting after 175 days.
    • 175 days’ is the longest gap without intervening general elections and just short of the six-month constitutional limit.
    • During the pandemic, over 900 central and nearly 6,000 State government notifications have been issued
    • Parliamentary committees did not meet for about four months.
    • This is unlike many other countries where both the plenary and committees have adopted technology to enable members to participate from home.

    Judicial intervention in policy issues

    • The lack of parliamentary oversight has been compounded by judicial intervention in many policy issues.
    •  For example, the government’s actions related to the lockdown should have been questioned by Parliament.
    • However, this was taken to the Supreme Court, which is not equipped and mandated to balance policy options.
    • Directions of the Court have to be followed which removes flexibility needed to tackle evolving issues with implementation.
    • Consider another case, Court decided to limit the period in which telecom companies have to pay their dues to the government, and overruled a cabinet decision.
    • This is a policy matter that balances interests of telecom companies, consumers and banks.
    • This issue is best judged by the government with oversight by Parliament.
    • And court should step in if there is an illegality.

    Way forward

    • Several events have taken place over the last six months that need thorough discussion.
    • This includes ways to tackle the spread of the coronavirus, economic growth which has had a sharp fall in the first quarter of this fiscal year.
    • This has far-reaching implications for creating jobs, stability of the banking system, and government finances.
    • The government is likely to bring in a supplementary budget; indeed, a fresh look at the Union Budget may be required given the changes in basic assumptions since January.
    • The situation at the China border also needs to be discussed.

    Consider the question “Anlyse the impact of pandemic on the key organs of the democracy.”

    Conclusion

    Parliamentarians have a duty towards Indian citizens to fulfil their role in scrutinising the work of the government and guiding policy. Despite the curtailed session and the constraints due to the coronavirus, they should make the best of the limited time to do so. They need to wrest back their rightful role in our democracy.

  • New Official Languages in J&K

    The Union Cabinet has approved a Bill to introduce Hindi, Kashmiri and Dogri as official languages in Jammu and Kashmir, in addition to Urdu and English. As of now, the official language is Urdu and Kashmiri is recognised as a regional language.

    Try this PYQ:

    Q.Consider the following languages:

    1. Gujarati
    2. Kannada
    3. Telugu

    Which of the above has/have been declared as ‘Classical Language/ Languages’ by the Government?

    (a) 1 and 2 only

    (b) 3 only

    (c) 2 and 3 only

    (d) 1, 2 and 3

    Languages in J&K

    • In the undivided Jammu and Kashmir state, various ethnicities spoke Kashmiri, Pahari, Gojri, Ladakhi, Dogri, Balti and Punjabi as their mother tongues.
    • Urdu and Hindi had become a means for inter-community communication.
    • In 1889, Maharaja Pratap Singh, the third ruler of the Hindu Dogra dynasty, replaced Persian with Urdu as the court language.
    • It was an anomaly that the three languages — Dogri, Hindi and Kashmiri — which are spoken by nearly 70 per cent of the population of Jammu and Kashmir were not approved for use in official business.

    Official languages in India

    • Article 343 of the Indian constitution stated that the official language of the Union is Hindi in Devanagari script instead of the extant English.
    • Later, a constitutional amendment, The Official Languages Act, 1963, allowed for the continuation of English alongside Hindi in the Indian government indefinitely until legislation decides to change it.
    • The form of numerals to be used for the official purposes of the Union is “the international form of Indian numerals”, which are referred to as Arabic numerals in most English-speaking countries.
    • Despite the misconceptions, Hindi is not the national language of India; the Constitution of India does not give any language the status of the national language.
    • The Eighth Schedule of the Indian Constitution lists 22 languages, which have been referred to as scheduled languages and given recognition, status and official encouragement.

    Other classical languages

    • In addition, the Government of India has awarded the distinction of classical language to Kannada, Malayalam, Odia, Sanskrit, Tamil and Telugu.
    • Classical language status is given to languages which have a rich heritage and independent nature.

  • Mission Karmayogi for Civil Services Capacity Building

    The Union Cabinet gave its approval for Mission Karmayogi, a new national capacity building and performance evaluation programme for civil servants.

    Try this MCQ:

    Q.The Mission Karmayogi recently seen in news is related to:

    a) EPFO reforms

    b) Labour laws reforms

    c) Civil Services reforms

    d) Artisans and Handicrafts

    Mission Karmayogi

    • The mission is established under the National Programme for Civil Services Capacity Building (NPCSCB).
    • It is aimed at building a future-ready civil service with the right attitude, skills and knowledge, aligned to the vision of New India.
    • It is meant to be a comprehensive post-recruitment reform of the Centre’s human resource development, in much the same way as the National Recruitment Agency approved last week is pre-recruitment reform.

    Why such a mission?

    • The capacity of Civil Services plays a vital role in rendering a wide variety of services, implementing welfare programs and performing core governance functions.

    Major undertakings of the scheme

    • The scheme will cover 46 lakh, Central government employees, at all levels, and involve an outlay of ₹510 crores over a five-year period, according to an official statement.
    • The programme will support a transition from “rules-based to roles-based” HR management so that work allocations can be done by matching an official’s competencies to the requirements of the post.
    • Apart from domain knowledge training, the scheme will focus on “functional and behavioural competencies” as well, and also includes a monitoring framework for performance evaluations.
    • Eventually, service matters such as confirmation after probation period, deployment, work assignments and notification of vacancies will all be integrated into the proposed framework.
    • The capacity building will be delivered through iGOT Karmayogi digital platform, with content drawn from global best practices rooted in Indian national ethos.

    Apex bodies under the mission

    • The Prime Minister’s Public Human Resource Council will be set up as the apex body to direct the reforms.
    • There will be an autonomous Capacity Building Commission to be established to manage the reformed system and harmonize training standards across the country so that there is a common understanding of India’s aspirations and development goals.
    • A wholly government-owned, not-for-profit special purpose vehicle will be set up to own and operate the digital platform and its content.

  • States can have sub-groups among SCs/STs: Supreme Court

    A five-judge Bench of the Supreme Court has held that States can sub-classify Scheduled Castes and Scheduled Tribes in the Central List to provide preferential treatment to the “weakest out of the weak”.

    Try this question for mains;

    Q.Reservation is no more seen by the Supreme Court as an exception to the equality rule; rather, it is a facet of equality. Discuss this in light of the quest for sub-categorisation of Scheduled Castes/Tribes.

    What is the sub-categorisation of SCs?

    • States have argued that among the SCs, there are some that remain grossly under-represented despite reservation in comparison to other SCs.
    • This inequality within the SCs is underlined in several reports, and special quotas have been framed to address it.
    • For example, in AP, Punjab, Tamil Nadu and Bihar, special quotas were introduced for the most vulnerable Dalits.
    • In 2007, Bihar set up the Mahadalit Commission to identify the castes within SCs that were left behind.

    About the Judgement

    • The judgment is based on a reference to the Constitution Bench the question of law involving Section 4(5) of the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006.
    • The legal provision allows 50% of the reserved Scheduled Castes seats in the State to be allotted to Balmikis and Mazhabi Sikhs.

    There lies struggle within castes: SC

    • There is a “caste struggle” within the reserved class as a benefit of reservation is being usurped by a few, the court pointed out.
    • The million-dollar question is how to trickle down the benefit to the bottom rung.
    • It is clear that caste, occupation, and poverty are interwoven.
    • The State cannot be deprived of the power to take care of the qualitative and quantitative difference between different classes… to take ameliorative measures, said the judgment.

    Overruling the old judgment

    • With this, the Bench took a contrary view to a 2004 judgment delivered by another Coordinate Bench of five judges in the E.V. Chinnaiah case.
    • The judgment had held that allowing States to unilaterally “make a class within a class of members of the Scheduled Castes” would amount to tinkering with the Presidential list.
    • The judgment is significant as it fully endorses the push to extend the creamy layer concept to the Scheduled Castes and Scheduled Tribes.
    • Citizens cannot be treated to be socially and educationally backwards till perpetuity; those who have come up must be excluded like the creamy layer, the judgment said.

    What is the Presidential list?

    • The Constitution, while providing for special treatment of SCs and STs to achieve equality, does not specify the castes and tribes that are to be called SCs and STs.
    • This power is left to the central executive — the President. As per Article 341, those castes notified by the President are called SCs and STs.
    • A caste notified as SC in one state may not be an SC in another state. These vary from state to state to prevent disputes as to whether a particular caste is accorded reservation or not.
    • According to the annual report of the Ministry of Social Justice and Empowerment, there were 1,263 SCs in the country in 2018-19.
    • No community has been specified as SC in Arunachal Pradesh and Nagaland, and Andaman & Nicobar Islands and Lakshadweep.
    • The Constitution treats all Schedule Castes as a single homogeneous group.

    Arguments against sub-categorisation

    • The argument is that the test or requirement of social and educational backwardness cannot be applied to SCs and STs.
    • The special treatment is given to the SCs due to untouchability with which they suffer.
    • In a 1976 case, State of Kerala v N M Thomas, the Supreme Court laid down that “Scheduled Castes are not castes, they are class.”
    • The petitioner’s argument against allowing states to change the proportion of reservation is also based on the perception that such decisions will be made to appease one vote-bank or the other.
    • A watertight President’s list was envisaged to protect from such potential arbitrary change.

    Way ahead with the Judgement

    • The judgement reasoned that sub-classifications within the Presidential/Central List do not amount to “tinkering” with it.
    • No caste is excluded from the list. The States only give preference to weakest of the lot in a pragmatic manner based on statistical data.
    • Preferential treatment to ensure even distribution of reservation benefits to the more backward is a facet of the right to equality, judgement observed.

    Also read:

    [Burning Issue] SC judgement on Reservation not being a Fundamental Right

  • National Council for Transgender Persons

    The Ministry of Social Justice and Empowerment has constituted the National Council for Transgender Persons.

    Try this question for mains:

    Q.Discuss the salient features of the Transgender Persons (Protection of Rights) Bill, 2019. What are its various shortcomings?

    National Council for Transgender Persons

    • It has been a requirement under the Transgender Persons (Protection of Rights) Act, 2019.
    • The Social Justice Minister would be the chairperson of the Council.
    • The members would include officials of the Ministries of Health, MHA, MoHUA, Minority Affairs, HRD etc. among others.
    • The council also includes five nominated members from the transgender community.

    Its mandate

    • The council would work with States to ensure that transgender welfare boards are set up in all States and essential needs of the community, like housing, food, healthcare and education are met.

    Also read:

    https://www.civilsdaily.com/news/parliament-passes-transgender-persons-protection-of-rights-bill-2019/

  • Right to possession to women and issues

    The Supreme Court in its latest judgement clarified that women’s right to their parents’ property is their birthright and clarified the air of confusion surrounding the issue due to previous judgements.

    What was said in the judgement

    • The judgement highlighted the patriarchal practices of the Mitakshra School of Hindu law — the guiding force of the Hindu Succession Act, 1956.
    • It settled the confusion created by two of its own antagonistic judgments.
    • In Prakash vs Phulawati (2016), it had ruled that the amendments to the Hindu Succession Act (2005) applied only to women whose parents were alive on September 9, 2005, the date of the notification of the act.
    • In Danamma @ Suman Surpur vs Amar (2018) cases, it inferred that coparcenary rights were birthrights.
    • The Supreme Court has now set forth the idea that coparcenary rights are birthrights free from limitations imposed by the dates of any legal notifications.

    Issues that need to be addressed

    1) Stree dhan issue

    • Section 14 (1) of the Hindu Succession Act 1956 provides that women can acquire property as a full owner, and it can be carried over or retained post marriage as stree dhan.
    • There are cases where the movable property may have been given to a daughter by her father as an intentionally undeclared and informal settlement between his descendants.
    • At the same time, it is quite true that stree dhan over time gave way to the unethical and illegal practices of dowry.
    • But the issue of stree dhan needs to be explained further in the light of this judgment.
    • The ruling might impact dowry transactions that continue despite stringent anti-dowry laws.

    2) Issues in claiming the right to property

    • In the rural context, where most of the property is in the form of agricultural land claiming the property may not be easy.
    • With patriarchy, it is doubtful if male heirs will share property-related documents, information.

    3) Challenge of societal change

    • On occasion, the law and courts may turn out to be progressive.
    • However, we can not expect society to readily accede to progressive reforms.
    • The challenge for economically dependent women in far-flung rural areas who are denied literacy, dignity and, sometimes, even a name and identity, in securing their rights is immense.
    • In parts of Bihar, there are areas where women are still addressed by their village names or more commonly as someone’s wife.

    Conclusion

    Women are asserting their rights, both in conjugal and property matters. However, there are significant cultural, religious, educational barriers and caste and class inequalities that require a massive overhauling of social attitudes to overcome.

    Back2Basics: Mitakshra School of Hindu law

    • In the Mitakshara School, the allocation of parental property is based on the rule of possession by birth.
    • Moreover, a man can leave his property in his will.
    • The joint family property goes to the group known as coparceners.
    • Ther are the people who belong to the next three generations.
    • Hence, the joint family property by partition can be, at any time, converted into a separate property.
    • Therefore in Mitakshara School, sons have an exclusive right by birth in the joint family property.

    Coparcener

    • Coparcenary is a term often used in matters related to the Hindu succession law, and coparcener is a term used for a person assumes a legal right in his ancestral property by birth.