The Supreme Court has decided to address petitions advocating for a comprehensive verification of Voter Verified Paper Audit Trail (VVPAT) slips in upcoming general elections.
What are VVPATs?
VVPAT machines, attached to Electronic Voting Machines (EVMs), print a slip showing the voter’s choice, allowing voters to verify their vote for 7 seconds before the slip drops into a secured box.
The concept emerged in 2010, leading to the creation of prototypes by Bharat Electronics Limited (BEL) and Electronics Corporation of India (ECIL).
After trials and feedback, the design was approved in February 2013.
The Conduct of Elections Rules, 1961, were amended to incorporate VVPATs.
They were first used in Nagaland’s Noksen Assembly constituency in 2013 and were implemented in all polling stations by the 2019 Lok Sabha elections.
Current VVPAT Slip Counting Protocol
In 2018, the ECI consulted the Indian Statistical Institute (ISI) to determine a statistically robust sample size for VVPAT slip verification.
Initially, VVPAT slips of one randomly selected polling station per Assembly constituency were counted.
This was increased to five polling stations per Assembly seat after a Supreme Court judgment in 2019.
The ISI suggested counting VVPAT slips from 479 EVMs to ensure a high confidence level that the proportion of defective EVMs is less than 2%.
Recent petitions regarding VVPAT
Opposition parties advocate for heightened VVPAT verification, ranging from 50% to 100%, to bolster electoral transparency and uphold the sanctity of democratic processes.
However, the Election Commission emphasizes the need to balance transparency with operational constraints, citing logistical challenges and potential delays in result declaration.
About Electronic Voting Machines (EVMs) in India
Details
Introduction
EVMs introduced in Paravur Assembly Constituency, Kerala, 1982.
Adoption
Election Commission increasingly used EVMs since 1998. All state elections and by-elections used EVMs by 2003.
Use of EVMs for Lok Sabha elections implemented in 2004.
Development
Developed by the Technical Experts Committee (TEC) of Election Commission, with Bharat Electronics Ltd,
Bangalore, and Electronic Corporation of India Ltd, Hyderabad.
Functionality
Consists of Control Unit and Balloting Unit connected by cable.
Voters press blue button on Ballot Unit to record vote.
Key Features
Each EVM records up to 2,000 votes.
Operates without electricity, powered by battery from Bharat Electronics Ltd/Electronic Corporation of India.
Uses one-time programmable/masked chip for security.
Stand-alone machines without an operating system for enhanced security.
PYQ:
[2017] Right to vote and to be elected in India is a
Q. The role of individual MPs (Members of Parliament) has diminished over the years and as a result healthy constructive debates on policy issues are not usually witnessed. How far can this be attributed to the anti-defection law, which was legislated but with a different intention? (UPSC CSE 2013) Q. To what extent, in your view, the Parliament can ensure accountability of the executive in India? (UPSC CSE 2021)
Prelims:
We adopted parliamentary democracy based on the British model, but how does our model differ from that model? (UPSC CSE 2021)
1. As regards legislation, the British Parliament is supreme or sovereign but in India, the power of the Parliament to legislate is limited. 2. In India, matters related to the constitutionality of the Amendment of an Act of Parliament are referred to the Constitution Bench by the Supreme Court.
Select the correct answer using the code given below.
(a) 1 only (b) 2 only(c) Both 1 and 2 (d) Neither 1 nor 2
Note4Students:
Mains: Parliamentary Democracy;
Mentors Comment:We Indians have been through ‘thick and thin’ as our Democracy has evolved. Since the 16th and 17th Loksabha, all have been doubts relating to the accountability of people’s Representation in Parliament due to the reduced Debates and discussions in Parliamentary sessions. Now, as we move towards the general election of 2024, the question arises: will history repeat itself? Or, will a new precedent be set? This prompts us, as citizens of India, to reflect on the performance of our Parliament as we wait to usher in the 18th Lok Sabha.
Let’s learn.
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Why in the News?
The present conduct of business in both Houses of Parliament points out the need for a revitalization of legislative engagement in a more constructive manner.
The 17th Lok Sabha (2019-2024) concluded its proceedings marking the culmination of a journey with unexpected twists and turns.
How did Ministries fare during the 17th Loksabha?
Decline in Executive Accountability: The PMO found itself flooded with 1,146 questions from Rajya Sabha Members of Parliament, of which only 28 were answered. Similarly, the House of the People also witnessed a sharp decline, from 5,000 during the 15th and 16th Lok Sabhas to a mere 1,700 in the 17th Lok Sabha.
Ministry of Finance tasked with steering the nation’s fiscal destiny, has witnessed a gradual erosion of parliamentary interest, declining to the fourth and fifth position in the Parliament.
Decline in Legislative Process: The annual average of Bills passed declined from 65 in the 1952-1990 period to 48 in 1991-2023. The number of Bills sent to committees for scrutiny also dwindled consistently, with the 17th Lok Sabha sending only 16% of Bills for scrutiny, the lowest in the past four Lok Sabhas.
A decline in Debates and Discussions: Before 1990, each Lok Sabha typically convened for over 550 days on average, spanning 3,500 hours. The 17th Lok Sabha had the least number of sittings, only 274 days on average.
The Ministry of Home Affairs, which was the Ministry with the second most number of questions directed towards it till the 15th Lok Sabha, has now faded. This shift raises questions about the nation’s priorities.
Decline in the use of various parliamentary tools:
Calling Attention Motion: It is a vital tool allowing MPs to draw attention to issues and elicit responses from ministers was extensively used between 1957 and 1990, with an average of 300 notices allowed per Lok Sabha. Post-1990, only 40 notices have been allowed per Lok Sabha. The 17th Lok Sabha allowed only one such discussion.
For example, the Winter Session, 2023 of the Rajya Sabha missed a crucial discussion on the sensitive and key issue of ‘Suicides among students due to competitive exams’.
The Adjournment Motion: It is employed to address urgent issues with a subsequent vote, and serves as an expression of disagreement with the government’s policies. Pre-1990, the Lok Sabha permitted discussion and voting on four such motions on average. Post-1990, this number decreased to three. The 16th and 17th Lok Sabha allowed no adjournment motions.
Ministries such as Health and Family Welfare, Home Affairs, Defence, Agriculture and Farmers’ Welfare, and Finance, made up 36.6% of all disallowed questions in Rajya Sabha. In contrast, in the Lok Sabha, they made up 37.8% of the disallowed questions, underscoring systemic challenges.
Way Forward:
Need for 15-point Reform: As recommended by the Vice President, it is required to make the Charter function effectively and efficiently by ensuring that the members of the committee are nominated based on domain knowledge and for a longer assured term.
Need to work on Democratic Principles: To maximize the Parliament’s ability to hold the executive accountable, it is crucial to promote a conducive environment for constructive debate, scrutiny, and oversight.
PYQ Relevance: Mains: Q) What is meant by the term ‘constitutional morality’? How does one uphold constitutional morality? (UPSC IAS/2019) Q) What was held in the Coelho case? In this context, can you say that judicial review is of key importance amongst the basic features of the Constitution? (UPSC IAS/2016)
Mains: Governance; Issues related to the section in Bharatiya Nyaya Sanhita (BNS);
Mentor comments: In December 2023, the Indian Parliament enacted three new criminal codes. The Indian Penal Code (IPC), 1860 is the principal law on criminal offenses in India. The stated aim of the new three legislations is to ‘decolonize’ criminal laws of the British era. Currently, ‘Organised crime’ and ‘acts of terrorism’ are not covered under IPC. Acts of terrorism are covered under the Unlawful Activities (Prevention) Act, 1967 (UAPA). Organized crime is covered by state laws such as the Maharashtra Control of Organised Crime Act, 1999 (MCOCA), and similar laws are enacted by various states. Hence, there was a demand for a single platform for this code. However, the designed law too has its challenges which need to be revisited considering the diversity of society and its demands.
Let’s learn.
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Why in the news?
The three new criminal laws that were passed by Parliament in 2023 will come into effect from July 1, 2024, according to a notification by the Ministry of Home Affairs (MHA).
About the Bharatiya Nyaya Sanhita (BNS), 2023: The Bharatiya Nyaya Sanhita, Bharatiya Nagrik Suraksha Sanhita and the Bharatiya Sakshya Adhiniyam that will replace the Indian Penal Code, 1860; Code of Criminal Procedure, 1898; and the Indian Evidence Act, 1872, respectively, received President Droupadi Murmu’s assent on December 25, 2023.
The Laws that need to be revisited:
The issue with Section 106 (Hit-and-Run):
The Section 106 provision is part of the BNS, which is set to replace the colonial-era Indian Penal Code, 1860.
Section 106(1) provides for a punishment of up to 5 years for causing death by any rash or negligent act not amounting to culpable homicide.
Section 106 (2) stipulates a penalty of up to 10 years in jail and a fine for fleeing an accident spot and failing to report the incident to a police officer or a magistrate.
This section has become a focal point of discontent, especially among the driving community. Even though the driver reports immediately after the accident, they will be charged under Section 106(1) instead of Section 106(2).
The issue with Section 112 (petty organized crime):
It talks about a group or gang, either singly or jointly, commits any act of theft, snatching, cheating, unauthorized selling of tickets, unauthorized betting or gambling, selling of public examination question papers, or any other similar criminal acts is said to commit a petty organized crime”.
The “unauthorized selling of tickets” and “selling of public examination question papers” are not linked with any special Act. However, the phrase ‘any other similar criminal acts’ of the section is more indefinite and open-ended.
Section 104 (No discretion):
Section 303 of the Indian Penal Code (IPC) mandated the death sentence for a person who murders while undergoing imprisonment for life. This provision was struck down by the Supreme Court in Mithu vs State of Punjab (1983) as it violated Articles 14 and 21 of the Constitution of India.
Section 303 of the IPC has been reinstated as Section 104 of the BNS without rectifying the unconstitutional defect.
Section 303 of the BNS (Reassessment of Theft Offenses):
No reason behind it is considered Non-cognizable: The provision stipulates that for theft cases where the value of the stolen property is less than ₹5,000 and it’s the first conviction, community service is mandated upon the return or restoration of the property. This offense is categorized as non-cognizable.
Three Legal issues may arise:
Firstly, if property offenses, of whatever value, are not registered, property offenders will be out of the police radar for surveillance.
Secondly, legal issues may also arise about the return of such property if recovered with some other stolen or looted property.
Thirdly, if the stolen property of a value less than ₹5,000 is not returned or restored by the convict as provided for, the only option available to the court will be to award imprisonment which may extend up to 3 years.
Way Forward:
Need for Comprehensive Coverage: We can initiate consultations with all stakeholders to address concerns and gather diverse perspectives.
Need for clear Protocols: Establish a clear and standardized protocol for emergency response, emphasizing the importance of prompt reporting without exposing drivers to potential violence. The law should also clarify the reporting procedure and the evidence required for the drivers to prove their innocence or mitigating factors.
Need to maintain Balance: The law should be categorized in different scales based on liabilities and eventually, the punishment should be commensurate with the offense.
Need for more research: The study and incorporation of successful models and globally best practices with effective legislation is necessary in the Indian context.
In early March this year, 30 people in Thrissur in Kerala executed living wills.
Context:
The Supreme Court’s 2018 order on Passive Euthanasia, wherein it recognized the ‘Right to die with dignity’ as a fundamental right and an aspect of Article 21 (right to life) of the Constitution.
However, the people wanting to get a “living will” registered were facing problems due to cumbersome guidelines, prompting a reconsideration by the apex court.
A Constitution Bench, led by Chief Justice of India Dipak Misra, in three concurring opinions, upheld that the fundamental right to life and dignity includes the ‘Right to Refuse Treatment and Die with dignity’.
What is a Living Will?
A Living Will is a healthcare directive, in which people can state their wishes for their end-of-life care, in case they are not in a position to make that decision.
The Court’s procedure:
Pre-2023: Initially, the process of creating living wills was deemed overly complex by the Court, with elaborate bureaucratic procedures in place to prevent abuse by unscrupulous individuals seeking to exploit the patient’s assets.
Post-2023: Recognizing the impracticality of requiring judicial magistrate countersignatures on living wills, the Court streamlined the process in January 2023. Now, living will require signatures in the presence of witnesses, attestation by a notary or gazetted officer, and submission to a designated government officer acting as a custodian.
Challenges in Implementation :
Decision-Making Process: Even if a living will is created, its implementation is not automatic. Decisions on withholding or withdrawing treatment require certification by primary and secondary medical boards, posing logistical challenges, especially in hospitals without designated boards.
Ambiguities and Discomfort: Ambiguities in guidelines, discomfort with end-of-life care topics, and unclear legal definitions contribute to the hesitancy among officials to implement the Court’s directives without clear instructions from higher authorities.
Legal Ambiguity: Indian law lacks a clear definition of ‘next of kin’, leading to potential disputes among family members about medical decisions for terminally ill patients.
Barriers to End-of-Life Decisions: A survey of intensive care doctors reveals a general belief that end-of-life decisions are fraught with legal implications, serving as a significant barrier to making such decisions in the ICU.
Regional Disparities in India:
Haryana: While some states like Haryana have issued directions to follow the judgment, they have not provided essential guidance or protocols for implementation.
Odisha: In contrast, Odisha has taken a more thorough approach by forming a committee of experts to develop detailed draft orders for implementing the judgment, setting a potential example for other states.
Conclusion: The central government could help bridge the gap in expertise by developing and publishing model orders and protocols to provide states with confidence and guidance in effectively implementing the judgment.
Mains question for practice
Q Discuss the challenges surrounding the implementation of living wills in India, as established by the Supreme Court’s landmark judgment in 2018.
Recently, the SC revoked the notification given by the Environment Ministry to exempt the extraction of ordinary earth for linear projects, such as road and railway construction.
It was challenged before the National Green Tribunal (NGT), which asked the Ministry to review it within three months. However, the Ministry did not take any action, leading the matter to reach the SC.
What are the linear projects?
Linear projects refer to Construction or Development Projects. It includes the construction of linear structures like utility lines, pipelines, railroad tracks, highways, stormwater channels, and stream restoration activities.
What was the 2020 exemption?
September 2006: The Environment Ministry issued a notification under the Environment (Protection) Act, 1986, on activities that would require prior Environmental Clearance.
January 2016: A second notification was issued, exempting certain categories of projects from this requirement.
March 2020: It added “Extraction or sourcing or borrowing of ordinary earth for the linear projects such as roads, pipelines, etc” to the list of exempted activities.
The general purpose of the 2020 notification was to conform to the amendments made to the Mines and Minerals (Development and Regulation) Act, 1957, in March 2020, allowing new lessees to continue mining for two years with the statutory clearances and licenses issued to their predecessors.
Nexus between the Judiciary and the Union Government (Ground for Challenges)
Judicial stand: The SC invalidated the broad and random exception, highlighting that the announcement was rushed during the COVID-19 lockdown without seeking feedback or objections through prior notification.
The exemption granted without incorporating safeguards was deemed arbitrary and violative of Article 14 of the Constitution.
The court emphasized that the absence of safeguards defeats the purpose of the Environment Protection Act (EP Act).
An argument by the center: The Center contended that the exemption was essential “to benefit the general public” and would support “the kumhars (potters), farmers, gram panchayats, banjaras, roads of Gujarat,” and all non-mining activities recognized by the states.
However, the Apex court stated that the Centre had failed to provide reasons for concluding that the notification was issued in the public interest.
Similar Judicial Scrutiny in the Past:
January 2018: The NGT quashed an exemption offered by the Ministry’s 2016 notification from the requirement of prior EC for building and construction activities having built-up areas of more than 20,000 sq m. According to the Tribunal, there was nothing to suggest an improvement in the quality of the environment to justify the exemption.
July 2015: Underlining that the EP Act mandates prior approval, the NGT struck down two Office Memorandums issued by the Ministry in December 2012 and June 2013 for granting ex-post facto EC to projects under the 2006 notification.
July 2021: Another notification of the Ministry that sought to perpetuate an amnesty window opened for just six months in March 2017 to clear projects under the “violation category” and issued ex-post facto approval to more than 100 projects, until the SC stayed it in January this year.
March 2024: The Kerala HC quashed a 2014 notification that exempted educational institutions and industrial sheds with built-up areas of more than 20,000 sq m from obtaining EC.
Conclusion: The Supreme Court invalidated the Environment Ministry’s exemption for earth extraction in linear projects due to a lack of justification and safeguards, emphasizing compliance with Environmental Clearance to minimize environmental harm, safeguarding the Environment Protection Act’s purpose.
Mains PYQ
Q How does the draft EnvironmentImpact Assessment(EIA)Notification, 2020 differ from the existing EIA Notification, 2006? (UPSC IAS/2020)
The Allahabad High Court clarified the appellate jurisdiction concerning orders issued by the Central Administrative Tribunal (CAT) in contempt proceedings.
The court ruled that appeals against CAT contempt orders must be filed exclusively before the Supreme Court under Section 19 of the Contempt of Courts Act, 1971.
What is Central Administrative Tribunal (CAT)?
The CAT is a specialized quasi-judicial body in India established under Article 323-A of the Constitution of India.
Its primary function is to adjudicate disputes and complaints related to recruitment and service conditions of government employees.
CAT was set up to provide a speedy and inexpensive remedy to government employees in matters concerning their service conditions and employment disputes.
Establishment of CAT:
The Administrative Tribunals Act in 1985 enacted by the Parliament authorizes the central government to establish Central Administrative Tribunal and the State Administrative Tribunals.
There are 17 Benches and 21 Circuit Benches in the Central Administrative Tribunal all over India.
Jurisdiction of CAT:
The Administrative Tribunal is distinguishable from the ordinary courts with regard to its jurisdiction and procedure.
It exercises jurisdiction only about the service matters of the parties covered by the Act.
CAT exercises jurisdiction over all service matters concerning the following:
A member of any All-India Service
A person appointed to any civil service of the Union or any civil post under the Union
A civilian appointed to any defence services or a post connected with defence
Services NOT Covered:
The following members are NOT covered under the jurisdiction of CAT:
Defense forces, Officers,
The staff of the Supreme Court and
Secretarial staff of the Parliament.
Procedure:
The CAT is guided by the principles of natural justice in deciding cases and is NOT bound by the procedure, prescribed by the Civil Procedure Code.
It is empowered to frame its own rules of procedure and practice.
Under Section 17 of the Administrative Tribunal Act, 1985, the Tribunal has been conferred with the power to exercise the same jurisdiction and authority in respect of contempt of itself as a High Court.
Composition:
The CAT comprises of a chairman, and other members who are appointed by the Presidentof India.
The membership of CAT is filled by members from judicial and administrative fields.
The term of the service is 5 years or until the age of 65 years for chairman; 62 years for members, whichever is earlier. (minimum age is 50 years)
The chairman or any other member may address his resignation to the President in between his term of office.
PYQ:
2019: The Central Administrative Tribunal (CAT) which was established for redressal of grievances and complaints by or against central government employees nowadays is exercising its power as an independent judicial authority. Explain.
Practice MCQ:
Consider the following statements about the Central Administrative Tribunal (CAT):
1. The CAT is a specialized quasi-judicial body.
2. It adjudicates disputes and complaints related to recruitment and service conditions of government employees.
3. Personnel of the armed forces are covered in the jurisdiction of CAT.
A Delhi Court on Thursday extended the Enforcement Directorate’s (ED) custody of Delhi Chief Minister Arvind Kejriwal till April 1 in the money laundering case
Context
Mr Kejriwal was arrested on March 21, hours after his plea for interim protection from arrest was rejected by the Delhi High Court. This is the first instance of a Chief Minister in India being put behind bars while still in office.
ED’s allegations against the Chief Minister
Influence on Elections: The ED contends that Money received by AAP leaders from operators of alcohol businesses were used to influence the 2022 Assembly elections in Punjab and Goa.
Favours to South Group: The excise policy was allegedly drafted with the intention of granting favors to the South Group
Legal issues
Potential Involvement of AAP: If Kejriwal’s vicarious liability (This principle holds a person responsible for the actions of others, based on the concept of agency) is established, AAP could be impleaded as an accused in the case. This could lead to the attachment or confiscation of the party’s assets under the provisions of the Prevention of Money Laundering Act, 2002 (PMLA).
Application of Section 70 of the PMLA: This section is often invoked to investigate companies involved in money laundering offenses. It holds individuals responsible if they were in charge or responsible for the company at the time of the offense. However, individuals may not be prosecuted if they can prove lack of knowledge or due diligence to prevent the offense.
Definition of “Company”: Explanation 1 of Section 70 of the PMLA defines “company” broadly to include any body corporate, firm, or association of individuals. This could potentially encompass a political party under the definition, as per the Representation of the People Act, 1951.
What is (PML) Prevention of Money-Laundering Act, 2002 Act?
An Act to prevent money-laundering and to provide for confiscation of property derived from, or involved in, money-laundering and for matters connected therewith or incidental thereto.
Reliance on approver’s testimony
Definition of an Approver testimony: An approver is someone who has been charged with a crime but later confesses and agrees to testify for the prosecution.
Potential Consequences of False Deposition: An approver who provides false testimony can be retried for the offense for which the pardon was granted, according to Section 308 of the CrPC. This provision acts as a deterrent against perjury by the approver.
Caution in Reliance: Courts exercise caution when relying on the testimony of an approver due to its inherently suspect nature. The testimony of an accomplice is considered tainted, and courts are wary of potential biases or falsehoods.
Corroboration Requirement: To ensure the reliability of the approver’s testimony, corroboration from independent evidence is typically required.
Judicial Precedents: The Supreme Court, in cases like Mrinal Das and Ors. v. State of Tripura (2011), has emphasized the importance of corroborative evidence in convicting the accused based on the testimony of an approver.
Judicial Scrutiny: Courts meticulously scrutinize the testimony of an approver and assess its credibility in light of corroborative evidence and other factors.
Conclusion
Arvind Kejriwal’s arrest in a money laundering case raises legal complexities, including potential involvement of AAP, application of PMLA, and reliance on approver’s testimony, necessitating cautious judicial scrutiny.
Mains PYQ
Q Money laundering poses a serious security threat to a country’s economic sovereignty. What is its significance for India and what steps are required to be taken to control this menace? (UPSC IAS/2013)
Q) ‘Simultaneous election to the Lok Sabha and the State Assemblies will limit the amount of time and money spent in electioneering but it will reduce the government’s accountability to the people’ Discuss. (UPSC CSE 2017)
Q) In light of the recent controversy regarding the use of Electronic Voting Machines (EVM), what are the challenges before the Election Commission of India to ensure the trustworthiness of elections in India? (UPSC CSE 2018)
Prelims:
Q) Under the Constitution of India, which one of the following is not a fundamental duty? (UPSC CSE 2011)
a) To vote in public elections b) To develop the scientific temper c) To safeguard public property d) To abide by the Constitution and respect its ideals
Mentors Comment: Representative democracy is a political system in which citizens of a country vote for representatives to handle legislation on their behalf. But perhaps India too is in some doubtful situation when the debate revolves around the Election 2024 or our version of present democracy. Recently, we have been through various news discussions on the Electoral Bonds Scheme which was introduced to cut down illegal funds in Party Politics, and its Campaigning pillared on black money. However, beyond curbing the wrong actions, the Electoral Bond Scheme also has another side which is a threat to our Democratic principles. Today’s Editorial also works on the same topic.
Let’s learn.
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Why in the News?
The Recent Judgement passed by our Supreme Court on the Electoral Bonds Scheme needs to be revisited in the Political domain too.
If this picture is seen from a broader perspective, in a well-functioning democracy, fighting an election would need neither extravagant funding nor Electoral Bonds to be bought in secrecy.
Context:
Elections continue to be fought with an increasingly larger amount of illegal funds being spent by political parties and candidates.
According to the SC the Electoral Bonds Scheme violates the Right to Information and Freedom of Speech and Expression under Article 19(1)(a) of the Constitution. It can lead to quid pro quo. The court ruled that the amendment to the Companies Act which allows blanket corporate political funding is unconstitutional.
This was supposed to end the financing of elections with black money. If this had happened, Indian politics would have been transformed with great benefit to the nation. After all, illegal finance results in the control of politics subverting our Democracy.
The gaps between the professed and the actual scenario of Indian politics:
Faraway from Democratic values: Elected leaders, usually serve the interests of those who finance their elections, and hardly represent the interests of their constituency. This gap between the professed and the actual undermines democracy since the government is no longer an entity ‘of the people, by the people, and for the people’.
Vested interests as national interests: The vested interests corner most of the gains from development. It is in the design of the policies the packaging is cleverly done to make policies appear to be in the national interest.
Widening of the Rich-poor Gap: Concessions are granted to private businesses to provide basic services like Health and Education through the market which results in the inability of the poor to afford them while simultaneously leading to growing disparities. This also reduces the availability of resources to the public sector.
The Challenge of Money and the Election:
Representation issue: Voting is often not based on a candidate’s performance but on attributes such as caste, community, and region. Hence, political parties slice and dice the electorate along these lines. Vote banks are cultivated and the constituents are bribed just before an election.
Campaigning through illegal funds: Campaigning is conducted by paid workers and crowds are mobilized to attend rallies and meetings using money, transportation, and food. All this requires a lot of money far more than the permitted election expenditure limit of ₹95 lakh for a big parliamentary constituency.
An issue with the Electoral Bonds Scheme: It enabled a bribe to be given in white for favors done. Since, only big businesses could contribute for big sums, their influence and manipulations were increased.
Secondly, the party obtaining funds could use them for all kinds of purposes and not necessarily for elections, such as setting up offices or destabilizing Opposition-led governments. Thus, the name electoral bonds was inappropriate.
Cronyism uncovered: The data show that funds were given to political parties for favors from policymakers; to escape prosecution for wrongdoing, and as an investment for the future. The data provided by the State Bank of India shows the quid pro quo in the case of some of the donations made.
Way Forward:
Need for a level-playing field: The political parties should not discriminate based on their vote share popularity or religion. This will enable the smaller and regional parties to compete with the ruling party and the major opposition parties on an equal footing and offer a genuine choice to the voters.
Need to reduce Money Influence: There is a need to curb the influence of money and corporate power in politics. The donors should no longer be able to hide their identity and agenda behind the veil of anonymity.
Conclusion: The Electoral Bonds Scheme only highlights the growing weakness of Indian democracy. In a well-functioning democracy, where the political leadership is accountable, fighting an election would need neither big funding nor electoral bonds to be bought in secrecy.
Allegations by the regional government (Recently Kerala govt.) on the Centre using the Governor’s position to destabilize state governments have been made since the 1950s. This calls for Governor-state relations.
What is the law on Governor-state relations?
The Governor, although meant to be apolitical and act on the advice of the council of ministers, holds significant powers granted under the Constitution.
These include giving or withholding assent to bills passed by the state legislature and determining the time needed for a party to prove its majority in cases of a hung verdict in an election.
While the Constitution grants powers to the Governor, there are no specific provisions on how the Governor and the state government should publicly engage when there is a difference of opinion.
What have been the friction points in recent years?
Controversial Actions: Some actions by governors have sparked controversy, such as dissolving assemblies amidst government formation discussions (Jammu and Kashmir), and inviting leaders without public consultation (Maharashtra) this government lasted just 80 hours. And Six months later, the Governor refused to nominate CM Uddhav Thackeray.
Interference in State Affairs: Governors have been criticized for allegedly interfering in state affairs, including commenting on law and order situations (West Bengal), and refusing requests from state governments (Kerala) regarding legislative matters.
Legal Challenges: Some decisions made by governors have faced legal challenges, such as the invitation to the BJP to form the government in Karnataka, which was challenged and subsequently modified by the Supreme Court.
Dismissal after independence:
Dismissals in the 1950s: Allegations of the Centre using the Governor’s position to destabilize state governments date back to the 1950s. In 1959, Kerala’s E M S Namboodiripad government was dismissed based on a report by the Governor.
Dismissals in the Post-1960s: Several state governments were dismissed between 1965 and 1990 through President’s Rule orders issued by Governors. These dismissals included governments such as Birender Singh in Haryana (1967), M Karunanidhi in Tamil Nadu (1976), and N T Rama Rao in Andhra Pradesh (1984).
Decrease in Dismissals: The frequency of state government dismissals decreased during the coalition era at the Centre and the emergence of strong regional parties. This suggests a shift in political dynamics and possibly less direct interference by the Centre through Governors in state politics.
Causes of such Governor-State Frictions:
Answerable only to the Centre: The Governor is not directly accountable to the people and is answerable only to the Centre.
Appointment and Tenure: The Governor is appointed by the President on the Centre’s advice and holds office at the pleasure of the President. Although the tenure is typically five years
Lack of Impeachment Provision: There is no provision for impeaching the Governor, further limiting mechanisms for holding them accountable.
Absence of Guidelines: The Constitution does not provide clear guidelines for the exercise of the Governor’s powers, including the appointment of a Chief Minister or the dissolution of the Assembly. Additionally, there are no limits set for how long a Governor can withhold assent to a Bill, raising questions about arbitrary use of power.
Governor as Agent of the Centre: The National Commission to Review the Working of the Constitution highlighted concerns that Governors may act in accordance with instructions from the Union Council of Ministers, leading to perceptions that they are “agents of the Centre.”
Reform suggested by the ARC of 1968 to the Sarkaria Commission of 1988:
Selection Process: Establishing a panel consisting of the Prime Minister, Home Minister, Lok Sabha Speaker, and Chief Minister to select Governors.
Fixed Tenure: Recommendations advocate for fixing the Governor’s tenure for five years.
Impeachment Provision: Suggestions include introducing a provision to impeach the Governor by the State Assembly.
Conclusion: Governors often side with the central government and aren’t accountable enough. Kerala’s case shows a problem with the law. Proposed changes aim to make things clearer and fairer.
Mains PYQs
Q Discuss the essential conditions for exercise of the legislative powers by the Governor. Discuss the legality of re-promulgation of ordinances by the Governor without placing them before the Legislature. (UPSC IAS/2022)
Q Whether the Supreme Court Judgement (July 2018) can settle the political tussle between the Lt. Governor and elected government of Delhi? Examine. (UPSC IAS/2018)
Recently SCt said that advisory boards should act like a safety net, protecting people’s freedom from the government’s arbitrary use of power.
They need to make sure there’s a balance between the government’s actions and people’s right to be free.
About Advisory Board:
Article 22 of the Constitution makes it mandatory for preventive detention laws to form advisory boards consisting of persons qualified to be High Court judges.
Objective: It must consider whether the detention is necessary not just in the eyes of the detaining authority but also in the eyes of the law.
Case Background: The judgment came in an appeal filed by a man ordered by the Telangana police to be detained as a ‘goonda’ under the Telangana Prevention of Dangerous Activities Act, 1986.
The claim by Telangana police: The man was a threat to “public order”. He was a cause of panic and fear among women. The appellant was accused of making a habit of snatching the ‘mangalsutras’ of his victims in broad daylight.
SC on the Appeal filed under the Telangana Prevention of Dangerous Activities Act, 1986:
Qualifications of Advisory Board Members: Justice Pardiwala emphasized that having qualified individuals, potentially fit to become High Court judges, on advisory boards was crucial. This ensures robust scrutiny of government detention orders.
Responsibilities of Advisory Boards: These boards, mandated by various laws, are required to review detention orders every three months.
Substantial Evidence to justify detention: Justice Pardiwala highlighted the unfairness of depriving someone of their Personal Liberty based merely on the assumption that they might commit a crime in the future. He stressed the importance of substantial evidence to justify detention.
Absence of Evidence of Threat to Public Order: The Supreme Court observed that the state failed to provide sufficient material indicating that the detained individual posed a genuine threat to public order. Specifically, there was no substantial evidence linking him to activities that could disrupt public order.
The distinction between ‘Public order’ and ‘Law and Order’, and the Preventive Detention
Differentiating ‘Public Order’ and ‘Law and Order’: Justice Pardiwala highlighted the distinction between ‘law and order’ issues, which affect only a few individuals, and ‘public order’ concerns, which have a broader impact on the community or even the entire country.
Limitations on Preventive Detention: The SC emphasized that preventive detention should only be utilized in exceptional circumstances.
Quashing of Detention Order: Justice Pardiwala ordered the quashing of the detention order against the appellant based on the absence of his direct involvement in any of the First Information Reports (FIRs).
Conclusion: The Supreme Court emphasizes advisory boards in preventive detention laws aren’t mere rubber stamps for the government but safeguards for personal liberty. They must ensure the necessity of detention, backed by substantial evidence, and limit preventive detention to exceptional circumstances.
Mains question for practice
Q Discuss the recent Supreme Court ruling emphasizing the role of advisory boards in preventive detention laws ( 150 words )
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