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Subject: Fundamental Rights,DPSP

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

  • Should Rajya Sabha be abolished?

    This article is about Rajya Sabha, the second chamber of our union legislature. Its utility was intensely debated in the Constituent Assembly. Now, after almost seven decades of its existence, we know that the house has proved its utility. So, what was the reasoning of those who were in support of its creation and what those who opposed its creation had on their mind? How bicameralism is connected to federalism? You’ll come to know the answers to these questions after reading the article.

    Historical background

    • The Rajya Sabha came into being on April 3, 1952 and held its first session on May 13 the same year.
    • The central legislature that came into being under the Government of India Act, 1919 was bicameral.
    • Under 1919 Act, Council of States had 60 members and Legislative Assembly had 145 members.
    • The membership and voting norms for the Council of States were restrictive.
    • These restrictions meant only wealthy landowners, merchants and those with legislative experience could enter it.
    • Women could neither vote nor seek membership.
    • The Government of India Act, 1935 proposed an elaborate and improved version of the second chamber, but this never materialised.
    • The Constituent Assembly, which was formed in 1947, after adoption of the Constitution became the Provisional Parliament and made laws till 1952.

    Bicameralism and the utility of second house

    • Bicameralism is a principle that requires the consent of two differently constituted chambers of Parliament for making or changing laws.
    • This principle came into operation in 1787 with the adoption of the U.S. Constitution.
    • At present, 79 Parliaments of the world (41% of the total number) are bicameral.
    • In The Federalist, the famous essay, it was stated that the second chamber enables a second and reflective expression of representative opinion besides checking the propensity to yield to the impulse of sudden and violent passions.
    • French philosopher Montesquieu who said, “The legislative body being composed of two parts, they check one another by the mutual privilege of rejecting”.
    • Walter Bagehot later noted that the retarding chamber will impede minor instances of parliamentary tyranny, though it will not prevent or really impede revolution.

    Federalism and link with bicameralism

    • Federalism has been in vogue since ancient times when some states got together to confer the power of law-making on a central authority.
    • But modern federalism is entirely different given the complexity of geographical, regional, social and economic diversities marking the constituent units of a federation or a union.
    • It is more so in India. The U.S. is a federation and so is India — each unit has a set of unique features.
    • Federalism and bicameralism are linked because the federal character of a nation comprising constituent units can be reflected in, and secured by, a bicameral legislature.

    Debate in the Constituent Assembly over need for the second house

    • The proposal for the Rajya Sabha as a second chamber was subjected to serious argumentation and had a narrow escape.
    • Opponents’ stand: A member of the Constituent Assembly asserted that an Upper House was not essential and viewed it as a creation of imperialism.
    • Other member warned that such a chamber would only prove to be a “clog in the wheel of progress” of the nation.
    • The proponents’ stand: A supporter of idea felt that it would introduce an element of sobriety and second thought besides lending voice to the constituent units in the legislative scheme of things.
    • Ananthasayanam Ayyangar argued that a second chamber would enable the genius of the people to have full play besides checking hasty legislation.
    • Replying to the debate on the motion N. Gopalaswami Ayyangar had to make a strong case for the second chamber.
    • He argued that the most that we expect the Second Chamber to do is 1) to hold dignified debates on important issues 2) to delay legislation which might be the outcome of passions of the moment until the passions have subsided.

    Consider the question, “Examine the role played by the Rajya Sabha as a law-making body. Do you agree that the Rajya Sabha has been successful in fulfilling the role expected of it by the makers of our Constitution?”

    Conclusion

    The mandate of the Rajya Sabha, as can be gleaned from the Constituent Assembly debates and the experiences of other Parliaments, is legislation — to revise or delay legislation without proving a clog in the wheel of the progress; to represent the interests of the States as a federal chamber, and be a deliberative body holding high-quality debates on important issues.

  • Issues with nominated CM’s election

    • Maharashtra CM is yet to be nominated to one of the seats reserved for the Governor’s nominee in the state Legislative Council.
    • His current term in office approaches its end with a looming constitutional crisis.

    The discretionary powers of the governor have been subjected to various debates this year. Be it Karnataka, Maharashtra, MP or erstwhile J&K (under Lt. Governor) or the UT of Delhi.

    CM without Election

    • Maha CM took oath in accordance with Article 164(4).
    • The article states that a Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister.
    • It follows that the Chief Minister must become part of the legislature before the said expiration of 6 months.

    Governors dilemma

    • A situation in which an individual who is not a member of the legislature becomes chief executive of the government is in itself fairly common.
    • But with the pandemic raging, a by-election cannot be held.
    • The only way to fulfil the requirement, therefore, is for a person to be nominated to the Upper House by the Governor.
    • If that does not happen, the Governor is obligated to make way for someone else to lead the coalition govt.
    • CM Uddhav Thackeray is likely to have had no problems becoming a member of the legislature had the pandemic not hit.

    What does the Judiciary have to say?

    • In S R Chaudhuri vs State of Punjab and Ors (2001), the Supreme Court had ruled that it would be subverting the Constitution to permit an individual, who is not a member of the Legislature.
    • Such a person should not be appointed a Minister repeatedly for a term of ‘six consecutive months’, without him getting himself elected in the meanwhile.
    • The practice would be clearly derogatory to the constitutional scheme, improper, undemocratic and invalid.

    Testing the nomination route

    • The nomination route for non-member Ministers is less common — but not unconstitutional.
    • In 1952, C Rajagopalachari was nominated as CM of Madras by Governor Sri Prakasa.
    • Under Article 171(5), the Governor can nominate “persons having special knowledge or practical experience in respect of. literature, science, art, co-operative movement and social service”.
    • Last month, the President nominated former Chief Justice of India Ranjan Gogoi to Rajya Sabha even though there were doubts about him meeting these prescribed qualifications.
    • Thackeray can be said to have a stronger claim in this regard — he is an ace wildlife photographer.
    • Moreover, as per the Allahabad High Court in Har Sharan Varma vs Chandra Bhan Gupta And Ors (February 15, 1961), even politics can be seen as ‘social service’.

    The role of the Governor

    • It has been argued that Section 151A of The Representation of the People Act, 1951, prohibits the filling of a vacancy if “the remainder of the term of a member in relation to a vacancy is less than one year”.
    • However, this cannot be a reason for the Governor to refuse nomination — because the bar is in respect of by-election to fill a vacancy, not nomination.
    • Of course, the Governor could argue that he is not obligated under the Constitution to act swiftly on the advice of the Council of Ministers; also, why should he nominate Thackeray only to save his chief ministership.

    A new issue for debate

    • It is important to note the extraordinary context — India is currently battling a health emergency of the kind not seen in the history of the republic.
    • Political uncertainty is the last thing that Maharashtra, which has the highest coronavirus caseload and death toll by far in the country, needs at this moment.

    The question of discretion

    • What are the limits to the Governor’s discretion in nominations is the matter of discussion now.
    • In Biman Chandra Bose vs Dr H C Mukherjee (1952) the Calcutta HC rejected the plea that none of the nine nominated members to the legislature fulfilled the required criteria and held that the Governor cannot use his discretion in nominating members to the Council.
    • He has to go by the aid and advice of the Council of Ministers.
    • Article 163(1) of the Constitution makes it clear that the Governor must follow the recommendations of the Council of Ministers in all situations “except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion”.

    Case in Maharashtra

    • It can be argued that government is bound by the advice of the CoM only in executive matters as defined in Article 162 and since the nomination of members is not an executive power, he can act in his discretion.
    • However, it must be noted that under Article 169, while Parliament has the power to abolish or create a Legislative Council, it can pass such a law only after the state Assembly has passed a resolution to that effect.
    • Thus, the legislative power of the Assembly can be inferred from this provision.

    Also read:

    https://www.civilsdaily.com/news/role-of-governor-in-state-govt-formation/

  • No 100% quota for Scheduled Areas

    • A Constitution Bench of the Supreme Court held it unconstitutional to provide 100% reservation for tribal teachers in schools located in Scheduled Areas across the country.
    • The Bench was answering a reference made to it in 2016 on whether 100% reservation is permissible under the Constitution.

    Reservation in India is a system of affirmative action by the State that provides representation for historically and currently disadvantaged groups in Indian society in education, employment and politics. The 10% EWS quota this year has raised the inevitability for a possible mains question.

    No 100% quota

    • The apex court held that it is an obnoxious idea that tribals only should teach the tribals.
    • Merit cannot be denied in toto by providing reservation observed the judgement.
    • Citizens have equal rights, and the total exclusion of others by creating an opportunity for one class is not contemplated by the founding fathers of the Constitution of India.

    Invoking Indira Sawhney judgment

    • The court referred to the famous Indira Sawhney judgment (Mandal case- Indra Sawhney v. Union of India 1992), which caps reservation at 50%.
    • The court held that 100% reservation is discriminatory and impermissible.
    • The opportunity of public employment is not the prerogative of few.
    • A 100% reservation to the Scheduled Tribes has deprived SCs and OBCs also of their due representation.

  • MPLADS funds suspended over COVID-19 crisis

    The Union Cabinet gave its nod to the temporary suspension of MPLAD Funds during 2020-21 and 2021-22 in view of the adverse impact of the outbreak of COVID-19 in India.

    Why suspend MPLAD?

    • The consolidated amount of MPLAD Funds for 2 years – Rs 7,900 crores – will go to Consolidated Fund of India.
    • The Cabinet has also approved an ordinance to reduce the salaries, allowances and pensions of Members of Parliament (MPs), including the Prime Minister, by 30 per cent for one year.
    • The amount so collected would be utilized in the fight against coronavirus.

    What is the MPLAD scheme?

    • The Members of Parliament Local Area Development Scheme (MPLADS) is a programme first launched during the Narasimha Rao Government in 1993.
    • It was aimed towards providing funds for developmental works recommended by individual MPs.

    Funds available

    • The MPs then were entitled to recommend works to the tune of Rs 1 crore annually between 1994-95 and 1997-98, after which the annual entitlement was enhanced to Rs 2 crore.
    • The UPA government in 2011-12 raised the annual entitlement to Rs 5 crore per MP.

    Implementation

    • To implement their plans in an area, MPs have to recommend them to the District Authority of the respective Nodal District.
    • The District Authorities then identify Implementing Agencies which execute the projects.
    • The respective District Authority is supposed to oversee the implementation and has to submit monthly reports, audit reports, and work completion reports to the Nodal District Authority.
    • The MPLADS funds can be merged with other schemes such as MGNREGA and Khelo India.

    Guidelines for MPLADS implementation

    • The document ‘Guidelines on MPLADS’ was published by the Ministry of Statistics and Programme Implementation in June 2016 in this regard.
    • It stated the objective of the scheme to enable MPs to recommend works of developmental nature with emphasis on the creation of durable community assets based on the locally felt needs in their Constituencies.
    • Right from inception of the Scheme, durable assets of national priorities viz. drinking water, primary education, public health, sanitation and roads, etc. should be created.
    • It recommended MPs to works costing at least 15 per cent of their entitlement for the year for areas inhabited by Scheduled Caste population and 7.5 per cent for areas inhabited by ST population.
    • It layy down a number of development works including construction of railway halt stations, providing financial assistance to recognised bodies, cooperative societies, installing CCTV cameras etc.

  • Supreme Court upholds “Right to discuss COVID-19”

    The Supreme Court has upheld the right to free discussion about COVID-19, even as it directed the media to refer to and publish the official version of the developments in order to avoid inaccuracies and large-scale panic.

    Right to Discuss

    • The Right to Discuss falls under the purview of the right to freedom of speech and expression.
    • Article 19(1)(a) of the Constitution of India states that all citizens shall have the right to freedom of speech and expression.
    • It ensures all citizens the liberty of thought and expression.
    • The exercise of this right is, however, subject to “reasonable restrictions” for certain purposes being imposed under Article 19(2) of the Constitution of India.
    • These restrictions are imposed in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

    Why such a move?

    • The court was responding to a request from the Central government that media outlets, in the “larger interest of justice”, should only publish or telecast anything on COVID-19 after ascertaining the factual position from the government.
    • Any deliberate or inaccurate reporting by the media, particularly web portals, had the serious and inevitable potential of causing panic in a larger section of the society.
    • Any panic reaction in the midst of an unprecedented situation based on such reporting would harm the entire nation.
    • Creating panic is also a criminal offence under the Disaster Management Act, 2005.

  • What is Finance Bill?

    The Parliament has passed the Finance Bill 2020 with 40 amendments without any discussion.

    Highlights of the Bill

    • Among the important amendments included was one enabling the government to raise additional excise duty on petrol by up to Rs 18 per litre and diesel by up to Rs 12 per litre when required.
    • Amendments enabling the taxation of NRIs’ India-controlled income above Rs 15 lakh, and another extending the DDT exemption to REITs and Infrastructure Investment trusts were passed.
    • The Bill also changes the definition of ‘Resident’, as stipulated under the Income Tax Act.
    • Presently, a person is considered a resident of India, i.e. their global income is taxable in India if they are in the country for more than 182 days a year. This has now been reduced to 120 days.
    • The amendments also include provisions for levying TDS of 1 per cent on e-commerce transactions.

    What is a Finance Bill?

    • As per Article 110 of the Constitution, the Finance Bill is a Money Bill.
    • The Finance Bill is a part of the Union Budget, stipulating all the legal amendments required for the changes in taxation proposed by the Finance Minister.
    • This Bill encompasses all amendments required in various laws pertaining to tax, in accordance with the tax proposals made in the Union Budget.
    • The Finance Bill, as a Money Bill, needs to be passed by the Lok Sabha — the lower house of the Parliament. Post the Lok Sabha’s approval, the Finance Bill becomes Finance Act.

    Difference between a Money Bill and the Finance Bill

    1) Money Bill

    • A Money Bill has to be introduced in the Lok Sabha as per Section 110 of the Constitution. Then, it is transmitted to the Rajya Sabha for its recommendations.
    • The Rajya Sabha has to return the Bill with recommendations in 14 days.
    • However, the Lok Sabha can reject all or some of the recommendations.

    2) Finance Bill

    • In a general sense, any Bill that relates to revenue or expenditure is a Financial Bill.
    • The Finance Bill is introduced in Lok Sabha.
    • Rajya Sabha can recommend amendments in the bill. However, the bill has to be passed by the Parliament within 75 days of introduction.

    >Types of Finance Bills

    Type I

    • Financial Bill Cat-1 is a bill which contains any of the matters specified in Article 110 but does not exclusively deal with such matters.
    • For example- a bill which contains a taxation clause, but does not deal solely with taxation under Article 117 (1), has two features in common with a money bill.
    1. It cannot be introduced in the Rajya Sabha.
    2. It can only be introduced in Lok Sabha with the prior recommendation of the President.(Similarities)
    • But has one feature uncommon that is, not being a Money Bill, the Rajya Sabha has the same power to reject or amend such Financial Bill subject to limitation.

    Type II

    • It is a finance bill which merely involves expenditure and does not include any of the matters specified in Article 110.
    • It is an Ordinary Bill and may be initiated in either House and the Rajya Sabha has full power to reject or ament it.
    • It is thus apparent that all Money Bills are Financial Bills but all Financial Bills are not Money Bills.

    Who decides the Bill is a Finance Bill?

    • The Speaker of the Lok Sabha is authorised to decide whether the Bill is a Money Bill or not.
    • Also, the Speaker’s decision shall be deemed to be final.

    Why Finance Bill is needed?

    • The Union Budget proposes many tax changes for the upcoming financial year, even if not all of those proposed changes find a mention in the Finance Minister’s Budget speech.
    • These proposed changes pertain to several existing laws dealing with various taxes in the country.
    • The Finance Bill seeks to insert amendments into all those laws concerned, without having to bring out a separate amendment law for each of those Acts.
    • For instance, a Union Budget’s proposed tax changes may require amending the various sections of the Income Tax law, Stamp Act, Money Laundering law, etc.
    • The Finance Bill overrides and makes changes in the existing laws wherever required.

    What changes can be made via Finance Bill?

    • The most awaited changes in the tax proposals in the Union Budget usually pertain to personal income tax.
    • For taxpayers across the country, the most awaited moment is when the Finance Minister’s speech announces an increase in minimum income threshold, or declares any changes in income tax slabs to make it less costly, or other exemptions.
    • In addition, there might be changes in the rules, procedures, and deadlines for filing tax returns or the payment of tax itself.
    • For instance, there might be a change in the amount of penalty for missing the deadline. Those proposed changes would typically need to be brought in via amending the Income Tax Act.
    • Among other changes, the FM may propose in the Union Budget with regard to the rates or processes for payment or administration of stamp duty levied on various instruments.
    • Such a change would need to be brought in via an amendment to the Stamp Act.
    • Since the introduction of GST, there is no amendment to indirect taxes in the Union Budget, since that is under the purview of the GST Council.

     

  • A blow against social justice

    Context

    The recent verdict of a two-judge Supreme Court Bench on reservations and Scheduled Caste and Scheduled Tribes promotions — has mainly raised four constitutional questions.

    The first question-Whether reservation in promotions is a fundamental right or not. 

    • Scope for the reservation: Addressing the first question, the scope for reservation for the Backward Classes is promised in Part III of the Constitution under Fundamental Rights.
      • Articles 16(4) and 16(4A) which empowers the state to provide reservation for SCs and STs are a part of the section, “Equality of opportunity in matters of public employment”.
      • The right to equality is also enshrined in the Preamble of the Constitution. Many construe that the reservation is against Article 16 (Right to equality).
    • The basis for the reservation: One should understand that the absence of equal opportunities for the Backward Classes due to historic injustice by virtue of birth entails them reservation.
      • In other words, the right to equality is the basis of reservation as there is no level-playing field among castes.
      • Articles 16 (2) and 16(4) are neither contradictory nor mutually exclusive in nature. In fact, they are complementary to each other; even Article 16(4) is not a special provision.
    • Whether reservation should be applied in promotions?
      • The answer is yes because, in India, where there is a peculiar hierarchical arrangement of caste, it is conspicuous that SCs and STs are poorly represented in higher posts.
      • Confined to lower cadre jobs: Denying application of reservation in promotions has kept SCs and STs largely confined to lower cadre jobs. This is even seen in the higher judiciary.
      • Hence, providing reservation for promotions is even more justified and appropriate to attain equality.
      • Need of the reservation at every level: The question of law is not about enabling reservations in promotions or not, but this judgment destabilises the very basis of reservation; when there is no direct recruitment in higher posts, the implementation of the reservation is justified at every level to get a reasonable representation.
      • Subdivision of reservation not correct: It is not correct to subdivide the scope of reservation at the entry-level and in promotions; this delineation will only lead to confusion in the implementation of reservation.
      • Now, by declaring that reservation cannot be claimed as a fundamental right is a dangerous precedent in the history of social justice.

    The second question- Can a court issue a mandamus to the state for providing reservation?

    • Will it be appropriate for the courts to issue a mandamus in this regard?
      • This is inappropriate because when the court is empowered to pass orders to create extra seats every year for forward-caste students who claim to be affected by reservation, why cannot it direct the state to provide reservation in promotions?
    • Use of powers under Article 142: The Supreme Court has extraordinary powers under Article 142, which empowers the Court to pass any order necessary for doing “complete justice in any cause or matter pending before it”.

    Third question-Necessity of quantifiable data

    • Data to prove inadequate representation: The next question is about the necessity of quantifiable data to show an inadequate representation of reserved category people.
    • Article 16 addresses the question: This question has been addressed in the Constitution. Article 16(4) reads: “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.”
    • How “opinion of the State” should be construes: Here, “in the opinion of State” should not be construed as the discretion of the state to give the reservation or not; on the contrary, if the state feels that SCs and STs are under-represented, then it is in the domain of the state to provide reservation.
    • Quantifiable data for exceeding the 50% limit: In the Indra Sawhney vs Union of India case (Mandal Commission) the idea of quantifiable data on inadequate representation was applied for exceeding the 50% cap for reservation; within 50% where the existing quotas for SCs and STs are accommodated were not affected.
      • Responsibility to collect data on the State: The responsibility of collecting data on representation by the Backward Classes lies with the state.
      • Pathetically, the last caste-based census was in 1935, and in the pre-Independence era, by the British government.
      • No caste-based census in India: After Independence, no government has had the inclination to conduct a caste-based census due to political reasons.
      • Even if a caste-based census is collected, the population and proportionate representation of SCs and STs will be low. For this reason alone, a proper caste-based census has not been conducted in independent India.
      • No mention of quantifiable data: Moreover, Article 16(4) clearly mentions that if the state, in its opinion, feels that SCs and STs are not adequately represented, then it can provide reservation for them. There is no mention of “quantifiable data” in the Constitution. Even after 70 years of SC/ST reservation, their representation is as low as 3%.

    Fourth question-Whether it is the obligation of the state to give reservation?

    • Obligatory on the government: Finally, if the argument is that it is not binding on the state to give reservation, it must be noted that when reservation rights are in Part III as Fundamental Rights, it is the obligation of the state to ensure reservation to the underprivileged.
    • Interpretation as obligatory provisions: This judgment has interpreted Articles 16 (4) and 16(4A) only as enabling provisions.
    • Enabling provisions mean that these provisions empower the state to intervene; it does not mean the state is not bound to provide it.
    • Interpreting the Constitution by paraphrasing and selective reading is dangerous.

     Administrative efficiency

    • Reservation should not affect the efficiency of administration: More importantly, this judgment has raised a new point — that the decision of the State government to provide reservation for SC/STs should not affect the efficiency of administration.
      • This implies that the entry of SC/STs in the job market can reduce the quality of administration; this by itself is discriminatory.
    • No evidence to support the claim: There is no evidence that performance in administration is affected on account of caste.
    • There have been many attempts to dilute reservation in the past. But, this judgment appears to be debatable in the larger context and should be challenged in a constitutional bench.

    Conclusion

    In a country of parliamentary democracy, even the Constitution of India can be amended. If the government at the Centre has a genuine concern for SC/STs, it can amend the Constitution using its political majority.

  • Department-related Standing Committees (DRSCs)

    Fewer sittings of Parliament are compensated by the working of department-related standing committees (DRSCs) praised Rajya Sabha Chairman.

    What are Standing Committees?

    • Standing Committee is a committee consisting of Members of Parliament.
    • It is a permanent and regular committee which is constituted from time to time according to the provisions of an Act of Parliament or Rules of Procedure and Conduct of Business.
    • The work done by the Indian Parliament is not only voluminous but also of a complex nature, hence a good deal of its work is carried out in these Parliamentary Committees.
    • Standing Committees are of the following kinds :
    1. Financial Standing Committees (FSC)
    2. Department Related Standing Committees (DRSC)
    3. Others Standing Committees (OSC)

    About DRSCs

    • There are 24 Department-related Standing Committees (DRSCs). Each of these committees have 31 members – 21 from Lok Sabha and 10 from Rajya Sabha.
    • The 17 Departmentally Related Standing Committees were formally constituted with effect from April, 1993.
    • After experiencing the working of the DRSC system for over a decade, the system was restructured in July,2004 wherein the number of DRSCs was increased from 17 to 24.
    • These members are to be nominated by the Speaker of Lok Sabha or the Chairman of Rajya Sabha respectively. The term of office of these committees does not exceed one year.
    • These committees are serviced either by Lok Sabha secretariat or the Rajya Sabha secretariat depending on who has appointed the chairman of that committee.

    Equal to 10 House sittings

    • During a usual sitting of Parliament, the Houses are convened for six hours. Calculating it accordingly, the meeting of these committees amount to 10 sittings of Parliament.
    • Proportionately, the work done by the 16 Committees of Lok Sabha amounts to another 20 sittings of the Parliament.
    • In all, the work put in by the total 24 DRSCs in examining the Demands for Grants of all the ministries equals 30 days of functioning of the Parliament, which is quite significant.
    • If the working of the committees is taken into account for the entire year, it will amount to significantly higher number of days.

  • Rights, duties and the Constitution

    Context

    At an International Judicial Conference 2020 this weekend, the Chief Justice of India, S.A. Bobde, drew attention to the Constitution’s Fundamental Duties chapter.

    The logic of duties

    • Wide range of duties: The first thing to note is that as citizens, there exists a wide range of duties that bind us in everyday life.
      • Duties towards the state and individual: These duties are owed both to the state and to other individuals.
    • Legal duties: We have a legal duty to pay our taxes, to refrain from committing violence against our fellow-citizens, and to follow other laws that Parliament has enacted.
      • Breach of these legal duties triggers financial consequences (fines), or even time in jail.
    • Following the duties is price for living in the society: At any given time, therefore, we are already following a host of duties, which guide and constrain how we may behave.
      • This is the price that must be paid for living in society, and it is a price that nobody, at least, in principle, objects to paying.
    • Self-contained whole: Our duties and the consequences we bear for failing to keep them, therefore, exist as a self-contained whole.
      • Co-existence and sacrifice: The peaceful co-existence requires a degree of self-sacrifice, and that if necessary, this must be enforced through the set of sanctions.

    The logic of rights

    • Understanding the logic through history: Rights, on the other hand, follow a different logic entirely. This is a logic that is best understood through history.
      • Two concerns: At the time of the framing of the Indian Constitution and its chapter on Fundamental Rights, there were two important concerns animating the Constituent Assembly.
      • Treatment as subjects: The first was that under the colonial regime, Indians had been treated as subjects.
      • Their interests did not count, their voices were unheard, and in some cases — for example, the “Criminal Tribes”- they were treated as less than human.
      • Holocaust example: Apart from the long and brutal history of colonialism, the framers also had before them the recent example of the Holocaust, where the dignity of more than six million people had been stripped before their eventual genocide.
    • The first role of fundamental rights chapter: To stand as a bulwark against dehumanisation.
      • Dignity and equality guaranteed: Every human being no matter who they were or what they did had a claim to basic dignity and equality that no state could take away, no matter what the provocation.
      • Unconditional right: One did not have to successfully perform any duty, or meet a threshold of worthiness, to qualify as a rights bearer. It was simply what it meant to be human.
    • Second role of the fundamental rights: To stand against the hierarchy.
      • Removing the subordination and degradation: The axes of gender, caste and religion had all served to keep masses of individuals in permanent conditions of subordination and degradation.
      • Equalising and democratising: Through guarantees against-
      • Forced labour.
      • Against “untouchability”.
      • Against discriminatory access to public spaces, and others.
      • Fundamental rights were meant to play an equalising and democratising role throughout society, and to protect individuals against the depredations visited on them by their fellow human beings.
    • Significance of the above two roles
      • Transformative purpose: The twin principles of anti-dehumanisation and anti-hierarchy reveal the transformative purpose of the fundamental rights chapter.
      • The recognition that true democracy could not exist without ensuring that at a basic level, the dignity and equality of individuals were protected, both from the state as well as from social majorities.
      • Rise from subject to citizen: It was only with these guarantees could an individual rise from the status of subject to that of the citizen.
      • And, as should be clear by now, it was only after that transformation had been wrought, that the question of duties could even arise.
    • Importance of the language of the duty:
      • The language of duties can play an important role in a society that continues to be divided and unequal.
      • In such a society, those who possess or benefit from entrenched structural and institutional power (starting with the state, and going downwards) certainly have a “duty” not to use that power to the detriment of those upon whom they wield it.
      • That is precisely what the guarantees against “untouchability”, forced labour, and discriminatory access in the Constitution seek to accomplish.

    Issue of conflating duties and rights

    • The problem lies in the conflation of rights and duties.
    • In that context, it is always critical to remember Dr B.R. Ambedkar’s words in the Constituent Assembly (which were also cited by the CJI in his speech): that the fundamental unit of the Constitution remains the individual.
    • If the position of the individual and the Constitution’s commitment to combating hierarchy is kept in mind, then the language of duties can be understood in its proper context.
    • Chances of duties leading to unpleasant consequences: Without the moral compass of rights and their place in the transformative Constitutional scheme the language of duties can lead to unpleasant consequences.
      • It can end up entrenching existing power structures by placing the burden of “duties” upon those that are already vulnerable and marginalised.
    • The constitution is about rights: It is for this reason that, at the end of the day, the Constitution, a charter of liberation, is fundamentally about rights.

    Conclusion

    It is only after guarantee to all the full sum of humanity, dignity, equality, and freedom promised by the Constitution, that we can ask of them to do their duty. Perhaps, then, it is time to update Hind Swaraj for the constitutional age: “real duties are the result of the fulfilment of rights”.

  • System Risk Indicator (SyRI)

    • In a first anywhere in the world, a court in the Netherlands recently stopped a digital identification scheme for reasons of exclusion.
    • This has a context for similar artificial intelligence (AI) systems worldwide, especially at a time when identity, citizenship and privacy are pertinent questions in India.

    SyRI

    • Last week, a Dutch district court ruled against an identification mechanism called SyRI (System Risk Indicator), because of data privacy and human rights concerns.
    • It held SyRI was too invasive and violative of the privacy guarantees given by European Human Rights Law as well as the EU’s General Data Protection Regulation.
    • The Dutch Ministry of Social Affairs developed SyRI in 2014 to weed out those who are most likely to commit fraud and receive government benefits.
    • Legislation passed by Dutch Parliament allowed government agencies to share 17 categories of data about welfare recipients such as taxes, land registries, employment records, and vehicle registrations with a private company.
    • The company used an algorithm to analyse data for four cities and calculate risk scores.

    What were the arguments in court?

    • After taking into account community concerns, civil society groups and NGOs launched a legal attack on this case of algorithmic governance.
    • Legal criticism mounted, alleging that the algorithm would begin associating poverty and immigrant statuses with fraud risk.
    • The Dutch government defended the programme in court, saying it prevented abuse and acted as only a starting point for further investigation instead of a final determination.
    • The government also refused to disclose all information about how the system makes its decisions, stating that it would allow gaming of the system.
    • The court found that opaque algorithmic decision-making puts citizens at a disadvantage to challenge the resulting risk scores.
    • The Netherlands continuously ranks high on democracy indices.

    How relevant is this for India?

    • Similar to the Supreme Court’s Aadhaar judgment setting limits on the ID’s usage, the Hague Court attempted to balance social interest with personal privacy.
    • However, the Aadhaar judgment was not regarding algorithmic decision-making; it was about data collection.
    • The ruling is also an example of how a data protection regulation can be used against government surveillance.
    • India’s pending data protection regulation, being analysed by a Joint Select Committee in Parliament, would give broad exemptions to government data processing in its current form.
    • India’s proposed regulation is similar to the US in the loopholes that could be potentially exploited.