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Subject: Governance

Important aspects of Society

  • LGBT Rights – Transgender Bill, Sec. 377, etc.

    IPC & the need for modernisation

     

    The promise of criminal law as an instrument of safety is matched only by its power to destroy. It is arguably the most direct expression of the relationship between a state and its citizens.

    Amid the debate on the archaic sedition law that should have no place in democratic India, President Pranab Mukherjee said that the IPC, 1860 requires a thorough revision to meet the needs of the 21st century. Click here to know everything about sedition law

    History:

    • The code was drafted in 1860 on the recommendations of first law commission of India established in 1834 under the Government of India Act 1833 under the Chairmanship of Thomas Babington MacaulayAnswer in comments.>
    • It came into force in British India(but not princely states) during the early British Raj period in 1862
    • After the partition of the British Indian Empire, the Indian Penal Code was inherited by its successor states, the Dominion of India and the Dominion of Pakistan, where it continues independently as the Pakistan Penal Code and later in B’desh also
    • Jammu and Kashmir does not follow IPC but has enacted a separate code known as Ranbir Penal Code (RPC) which is based on IPC

    Some notable points:

    • The IPC replaced Mohammedan Criminal Law, which had a very close relationship with Islam. Thus, the IPC laid the foundation of secularism
    • It was widely appreciated as a state-of-the-art code and was, indeed, the first codification of criminal law in the British Empire
    • Today, it is the longest serving criminal code in the common-law world
    • Today, most of the commonwealth follows the IPC

    Law Commission on IPC:

    • 42nd Report (1971)– Law Commission of India for the first time had recommended the repeal of Section 309 (criminalization of suicide)
    • 172nd Report (2000)– Recommended deletion of Section 377 (criminalization of unnatural sexual offences)
    • 210th Report (2008)– Recommended Humanization and Decriminalization of Attempt to Suicide under Section 309

    Past attempts at amendment:

    • Even though the IPC has been haphazardly amended more than 75 times, no comprehensive revision has been undertaken in spite of the 42nd report of the Law Commission in 1971 recommending it
    • Also the amendment bills of 1971 and 1978 lapsed due to the dissolution of the Lok Sabha
    • As a result, largely the courts have had to undertake this task, with unsatisfactory outcomes at times
    • Most amendments have been ad hoc and reactive, in response to immediate circumstances like the 2013 amendment after the Delhi gangrape case

    Why amend IPC?

    • The philosophical stance and fundamental principles of Macaulay’s code were the product of imperialist policy <designed to meet colonial needs to subjugation and exploitation of India and Indians, sedition law for instance>
    • Some of the concepts underlying the code are either problematic or have become obsolete
    • there are many new offences, which have to be properly defined and incorporated in the code
    • Macaulay had himself favoured regular revision of the code whenever gaps or ambiguities were found or experienced
    • In 1860, the IPC was certainly ahead of the times but has been unable to keep pace since then

    Specific cases or problems:

    1. Sedition law, inserted in 1898: It is legitimate to ask whether we need a law on sedition that we ourselves condemned during the Raj. Learn more about sedition law here
    2. Section 295A, The offence of blasphemy: It should have no place in a liberal democracy
    3. Criminal conspiracy: It can be invoked merely when two people agree to commit an offence without any overt act following the agreement.
      It was added in 1913 by the colonial masters to deal with political conspiracies.
      Kehar Singh etc were convicted and sentenced to death under the offence of conspiracy ,, though none of them participated in the actual crime or were present at the scene of the crime.
    4. Section 149, Unlawful assembly: The principle of constructive liability under this law is pushed to unduly harsh lengths.
      Mere membership of the assembly without any participation in the actual crime is sufficient for punishment.
      Several persons have been sentenced to death and hanged though they were not even present near the scene of the actual crime.
    5. The distinction between “culpable homicide” and “murder” is criticised as the “weakest part of the code”, as the definitions are obscure
    6. Sexual offences under the code reveal patriarchal values and Victorian morality.
    7. Section 377:  Unnatural sexual offences (LGBT right). Want to know about argument of Delhi high court in decriminalizing homosexuality, click here to read about Naz Foundation case

     

    Contrarian view point of Justice Hegde

    We should not repeal something just because it’s 150 years old.

    On Sedition: He favours the sedition law as some restrictions are needed to stop people from abusing and talking against the country. “I believe in sedition law. I am a patriot. Any patriot cannot go on abusing the country. There are certain parameters.” He points to distinction b/w criticizing the person (prime minister), policies, system v/s abusing the state

    On IPC:  We can not just scrap Indian Penal Code because somebody is involved in a crime (and wants it to be scrapped)

    We can not just ape west. Ground realities in India and west are very different and they demand different levels of freedom of expression and religious freedom.

  • Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

  • Child Rights – POSCO, Child Labour Laws, NAPC, etc.

  • Primary and Secondary Education – RTE, Education Policy, SEQI, RMSA, Committee Reports, etc.

  • Corruption Challenges – Lokpal, POCA, etc

  • RTI – CIC, RTI Backlog, etc.

  • Aadhaar Card Issues

    Aadhaar Bill 2016, Hopes and Concerns 

    Basics of Aadhaar

    Aadhaar is an ambitious project that seeks to provide unique identification numbers to each individual in a country, collecting demographic and biometric information in the process. Currently, UIDAI has issued over 98 crore Aadhaar numbers.

    Need for Aadhaar: India must use technology in a transformational way to accelerate social and economic justice. It will help in expansion of opportunities for all at scale and speed.

    What is the Aadhaar Bill?

    Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016, has been passed by Parliament, to provide for efficient, transparent, and targeted delivery of subsidies, benefits and services.

    It will enable the govt. to reset the subsidy regime and deliver state benefits directly to their intended beneficiaries, plugging leakages.

    How Aadhar is linked with DBT?

    India spends nearly Rs. 4 lakh crore on subsidies, in order to complement the political democracy with socio-economic democracy.

    On January 1, 2013, the UPA govt launched the Direct Benefit Transfer scheme under which monetary benefits would be transferred directly to the beneficiaries through an Aadhaar-enabled platform.

    The effort to channelize subsidies, benefits and services to through a 12-digit number or to say its biometric alternative can help plug the leakages in the subsidy framework and give a boost to the Jan Dhan Yojna, which remains closely aligned to this scheme.

    Follow our story on Direct Benefits Transfer: The Big Reform.

    Do read the Economic Survey chapter on JAM Trinity.

    What are the concerns on Privacy front?

    There are certain provisions in the Bill, that provide avenues for surveillance of citizens. A person’s Aadhaar number can become a standard data point in all business, banking and legal transactions. Our data systems are not secure and watertight. The people who maintain these systems are vulnerable to pressures and inducements.

    • The issue of privacy vs. security is a hot subject around the world, evident in the current controversy in Apple Inc.’s refusal to break the encryption on an iPhone as demanded by FBI
    • Sceptics argue that no other country, and certainly no democratic country, has ever held its own citizens hostage to such a powerful infrastructure of surveillance
    • Govt. accepts right to privacy as a valuable right, but questions it as a fundamental right
    • In 1954, a 8-judge bench of SC had ruled that right to privacy cannot be a fundamental right. But, some judgments post-1990 noted that right to privacy can be construed as fundamental right, subject to certain restrictions and circumstances

    However, there are other concerns of exclusion, by denying the services to people who didn’t enroll for it or chose not to do it.

    Safeguards

    According to Nandan Nilekani, the Bill had incorporated several safeguards with regard to privacy as highlighted by the A.P. Shah Committee report, on privacy law.

    There are other provisions in this Bill that seem to address the concern:

    • The unique numbers will not be considered as proof of citizenship
    • The Aadhar system ensures privacy through design, as it uses a federated architecture. In other words, as banking data is wholly inside the banking system, similarly, the biometric data is never shared by UIDAI
    • The core bio-metric information cannot be shared with any person even with the consent of the Aadhaar card holder. Even, the general information cannot be unlawfully shared
    • Only a Court of the District Judge or above has been given the power to order disclosure of information excluding core biometrics
    • “National Security” is the only ground on which a Competent Authority can share this information. Every decision of the Competent Authority has to be reviewed by a Committee comprising of the Cabinet Secretary, the Law Secretary and the Secretary, Information Technology before it is given effect

    What was Supreme Court’s stand on Aadhaar?

    In 2013, the Supreme Court ruled that Aadhaar could not be made mandatory to receive benefits. No one should be excluded from social welfare scheme, just because of a requirement of Aadhar.

    In 2015, It also prohibited the sharing the Aadhaar information with any agency. The case was referred to a larger bench to decide the question whether Aadhaar infringed the right to privacy.

    What is Aadhaar Bill versus Money Bill controversy?

    According to experts, the Bill was not a money Bill under Article 110 of the Constitution because it did not “contain ONLY provisions” dealing with the matters enumerated in that Article. Various Constitutional experts have argued that the Speaker’s decision to certify it as a money Bill was also plainly wrong.

    Do you want to know about Money Bill?

    As per Article 110(1), a bill that contains only provisions dealing with the following qualifies as a money bill:

    1. The imposition, abolition, remission, alteration or regulation of any tax
    2. Regulation of borrowing or the giving of any guarantee by the govt of India, or undertaking financial obligation by the government
    3. The custody of the Consolidated Fund of India or the Contingency Fund of India, the payment of moneys into or withdrawal from them
    4. The appropriation of moneys out of the CFI
    5. Declaring any expenditure as a charged expenditure on the CFI <can you tell us the difference b/w charged expenditure and non charged expenditure? Also can you tell us one prominent constitution body whose expenditure is not charged? Answer in the comments.>
    6. The receipt of money on account of the CFI or the public account of India or the ambit of accounts of the Union or of a state <can you tell us the difference b/w consolidated fund of India and public accounts of India? Answer in the comments>
    7. Any matter incidental to the above issues

    A money bill cannot be rejected by the Rajya Sabha, which can only suggest changes, the Lok Sabha is free to reject.

    Speaker: Article 110(3) confirms finality on the speaker’s decision on the question of whether a bill is a money bill.

    What were the amendments moved by Rajya Sabha?

    • It wanted to restrict the use of Aadhaar numbers only for targeting of govt benefits or service and not for any other purpose
    • It wanted to replace the term ‘national security’ with ‘public emergency and public safety’, arguing that the term ‘national security’ is very vague
    • It wanted an Oversight Committee to review the Competent Authority’s decision, which should also comprise of either the CVC or the CAG
    • It wanted to delete a section which says that if under any other law the use of Aadhaar number for establishing the identity of an individual is permitted, the same law is not being over-ruled

    Conclusion

    There is little doubt that India needs to streamline the way it delivers benefits, and to empower citizens with a basic identification document. But this cannot be done without ensuring the strictest protection of privacy.

    Follow our story on Aadhaar Cards: The Identity Revolution.

    Published with inputs from Pushpendra

  • Electoral Reforms In India

    Time and again, many electoral reforms have been proposed by various committees, Law Commission and ECI itself. A discussion on these crops up during every election. We’ve tried to comprehensively list the proposed reforms under various sub-headings. A brute-force memorization of all this information is not required. Go through this list so that you have a background while reading news items on Electoral Reforms and ECI.
    I.Amendment to the Constitution of India
    1. Constitutional protection for all members of the Commission.
    2. Budget of the Commission to be ‘charged’ on the CFI.
    3. Independent Secretariat for the Commission.
    II.Electoral Roll Matters
    While Army personnel are allowed to vote, Navy and Airforce are not.
    There are no provisions for overseas electors to vote despite being eligible to do so. Amendments proposed provide the option of proxy voting or postal ballot voting.
    At present, the Electoral Rolls prepared by the Election Commission are not used by the State Election Commissions leading to duplication of effort and errors costing both in terms of time and money. Common Electoral Rolls to be used in local elections was a recommendation endorsed by the Law Commission.
    III.Election Management Issues
    At present, filing false declarations about the background of the candidate attracts penalty under Section 125A of The Representation of the People Act, 1951. The offence is punishable by up to 6 months, or with fine, or with both.
    The Commission has proposed that the punishment under section 125A should be increased to 2 years’ imprisonment without the alternative clause of  fine, and also that the offence should be included in the list of offences listed in sub-section (1) of section 8 which would attract disqualification on conviction irrespective of the term if sentence. The Commission also proposed that furnishing of false affidavit or suspension of material information in the affidavit should also be specified as ground for challenging the election under section 100 (1) of The Representation of the People Act, 1951.
    In S. Subramaniam Balaji vs Govt. Of T.Nadu & Ors, the SC observed that “although, the law is obvious that the promises in the election manifesto cannot be construed as ‘corrupt practice’ under section 123 of The Representation of the People Act, the reality cannot be ruled out that distribution of freebies of any kind, undoubtedly, influences all people. It shakes the root of free and fair elections to a large degree. In this regard the EC has proposed an amendment to RPA, 1951 allowing Adjournment of poll or countermanding of elections on ground of bribery.
    IV.Election Officials and Logistics
    Use of Totalizer Machines
    EVM totalizer can count votes of multiple Electronic Voting Machines (EVMs) simultaneously. This way the results of votes in a group of EVMs can be taken without ascertaining the result in individual EVM corresponding to polling booth.
    As per the present provisions in The Conduct of Elections Rules, 1961, votes in the EVMs are to be counted polling station wise, which leads to situations where voting pattern in various localities/pockets become known to everyone. There is a view that this can result in victimization and/or discrimination and intimidation of electors of particular localities. This issue can be addressed by use of totalizer that can be used for taking out the results of voting in a group of 14 EVMs without revealing the votes in individual EVMs.
    V.Nomination of Candidates
    Contesting the elections from 2 seats  – At present as per RPA 1951, a person is allowed to contest from 2 seats. However it is imperative that he has to vacate one of the two seats should he win both. This leads to holding by-elections which causes inconvenience to voters and financial expenditure. The amendment to RPA 1951 calls for removal of this provision of contesting from 2 seats.
    VI.De- Criminalization of politics
    2. Misuse of religion for electoral gain
    3. Making bribery in elections a cognizable offence
    VII.Reforms relating to Political Parties
    1. De-registration of political parties
    2. Tax Relief for Political Parties
    3. Compulsory Maintenance of Accounts by Political Parties
    4. Accounting and Auditing Report of Political Parties
    5. Form 24A under Rule 85B of The Conduct of Elections Rules, 1961
    6. Prohibition on Anonymous Donations
    7. Sale of Coupons
    8. Maintenance of separate bank accounts by each contesting candidate for poll expenses
    9. Cap on Expenditure by Political Party on a Candidate for election campaign
    10. Ceiling of campaign expenditure by political parties
    11. Limit the Number of Star Campaigners
    12. Time period for maintaining books of account under section 77 of The Representation of the People Act, 1951
    VIII.Election campaign and advertisements
    1. Ban on exit polls and opinion polls
    2. Ban on Government Sponsored Advertisement before elections
    3. Section 126 of The Representation of the People Act, 1951
    4. Paid news in connection with elections
    5. Section 125A of The Representation of the People Act, 1951
    IX.Election Expenses and Election Petitions
    1. Ceiling on Election Expenditure to legislature from Local Authorities’, Graduates’ and Teachers’ Constituencies
    2. Election expenditure in case of adjournment of poll under section 52 of The Representation of the People Act, 1951
    3. Appointment of additional judges in the High Courts
    PDF for proposed electoral reforms –  PROPOSED ELECTORAL REFORMS

  • NITI Aayog’s Assessment

  • Swachh Bharat Mission

    Lets get to the basics of Cess, before we explore more about Swachh Bharat Cess.

    cess-head-for-blog

    What is a Cess?

    Cess is a tax on tax, temporary levied by the govt. to achieve a specific objective. Generally, it is expected to be levied till the time the govt. gets enough money for that purpose.

    For instance, the education cess, that is levied currently, is meant to finance basic education in the country.

    What is the quantum of revenue generated through Cess?

    • The education and higher education cesses are budgeted to bring approx. Rs 30,000 crore this year.
    • The road cess on petroleum is budgeted to net just under Rs 50,000 crore.
    • There is also a cess on exports, clean energy, etc.

    The total amount from cesses is Rs 1.16 lakh crore.

    What is the criticism against Cesses?

    • The problem with cesses is that it becomes permanent in nature.
    • These levies are back door entry instead of levying taxes.

    How Cess is different from Surcharge?

    Surcharge is also a tax on tax, which is imposed on incomes above a certain level with a view to reduce the inequalities further.

    • There is a surcharge of 12% on individuals whose taxable income exceeds Rs. 1 crore.
    • Similarly, there is also a surcharge of 10% on the domestic companies whose taxable income exceeds Rs.10 crore, and also a surcharge of 5% on the foreign companies whose taxable income exceeds Rs.10 crore.

    Now, let’s now come to the core of the topic

    cess-infograph

    What is Swachh Bharat Cess?

    The resources generated from the cess will be utilised for financing and promoting initiatives towards Swachh Bharat. It is a step towards involving each and every citizen in making contribution to Swachh Bharat.

    • Govt. has introduced a cess of 0.5% on all services and 2% on air services.
    • The revenue department is preparing a list of services which will attract the additional 2% cess provided for in the Budget 2015-16, over and above the proposed 14%.

    Where does the proceeds of the Swachh Bharat Cess go?

    The proceeds of the Swachh Bharat cess would be first credited to the Consolidated Fund of India. The govt. would be able to utilise it after due appropriation is made by Parliament by law. This will later go to Swachh Bharat Kosh.

    The Government expects to collect around Rs 10,000 crore from Swachh Bharat cess for full year

    Why does it goes against the principle of fiscal federalism?

    • The central divisible pool excludes levies classified as surcharges and cess for specific purpose.
    • The entire proceeds would remain with the Centre and need not be compulsorily shared with the states.
    • Swachh Bharat cess, to some extent, is a vague pretext for a cess, unlike the ones for national highways or high-speed rail corridors, which can be more effectively implemented at the Central level.

    What will be the impact of GST on the cess?

    There is no input credit available on this cess, which goes against the very principle of the GST and thereby weakens the Centre’s case for pushing through GST.

    The cesses and surcharges would be subsumed once the GST is rolled out. So both for tax payers and states, this is for the time being.

     

    Published with inputs from Pushpendra