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Subject: Polity

  • A look at how Article 361 provides immunity.

    Why in the News? 

    Even as a complaint alleging sexual harassment has been filed in Kolkata against West Bengal Governor C V Ananda Bose, Constitutional immunity bars the police from naming the Governor as an accused or even investigating the case.

    What is Article 361? 

    Article 361 of the Constitution that deals with immunity to the President and the Governors states that they “shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties”.

    The provision also has two crucial sub-clauses: 

    (1) that no criminal proceedings whatsoever shall be initiated or continued against the President, or the Governor of a State, in any court during the term of his office.

    (2) No process for the arrest or imprisonment of the President, or the Governor of a State, shall issue from any court during his term of office.

    Immunity power of the Governor:

    • Ceases to be in office: The police can act only after the Governor ceases to be in office, which is when either the Governor resigns or no longer enjoys the confidence of the President.” 
    • Rameshwar Prasad v Union of India: In the landmark 2006 ruling in Rameshwar Prasad v Union of India, that outlined the immunity enjoyed by the Governor “even on allegation of personal malafides,” the Supreme Court held that “the position in law, is that the Governor enjoys complete immunity.”
    • In 2017, criminal conspiracy in the 1992 demolition of the Babri Masjid case: The trial did not take place for former UP Chief Minister Kalyan Singh since he was then the Governor of Rajasthan.

    Constitutional Provisions:

    • Appointment: The Governor is appointed by the President of India and holds office during the pleasure of the President (Article 155).
    • Qualifications: The Governor must be a citizen of India, must be at least 35 years old, and must not hold any office of profit (Article 157).
    • Powers and Functions: The Governor is the constitutional head of a state and performs various functions including:
      • Executive Functions: The Governor appoints the Chief Minister and other Council of Ministers, and allocates portfolios among them (Article 164).
      • Legislative Functions: The Governor summons and prorogues the state legislature, addresses it, and lays down its policy. He/she also has the power to dissolve the Legislative Assembly (Article 174).
      • Financial Functions: The Governor causes to be laid before the State Legislature the Annual Financial Statement (budget) and has powers related to money bills (Article 202).
    • Discretionary Powers: The Governor has discretionary powers in certain matters, such as appointing the Chief Minister when no party has a clear majority after elections (Article 164).
    • Relation with the Union: The Governor is appointed by the President and acts as a link between the state and the Union. He/she can send reports to the President regarding the administration of the state (Article 356).
    • Oath or Affirmation: Before entering office, the Governor must take an oath or affirmation according to the form set out in the Third Schedule of the Constitution (Article 159).

    Conclusion: 

    Article 361 of the Indian Constitution provides immunity to the President and Governors from court proceedings and arrest during their term. Police action against a Governor can only occur after they cease office.

    Mains PYQ 

    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.

  • Financial Relief in Domestic Violence Cases

    Why in the news?

    • A recent question before the Supreme Court compelled it to deliberate on whether damages for domestic violence should be determined based on the injuries sustained by the victim or the perpetrator’s ability to pay.
    • The petitioner contested orders from the Bombay High Court and a trial court directing him to pay Rs 3 crore to his wife under Section 22 of the Protection of Women from Domestic Violence Act, 2005.

    Domestic Violence Law: An Overview

    • The DV Act, 2005 aims to safeguard women’s rights by addressing violence within the family.
    • Key Features of the DV Act:
    Details
    Background Introduced in 2005 to address limitations in civil and criminal courts regarding domestic violence (under Section 498A of the Indian Penal Code).
    Definitions of Violence
    • Includes physical, sexual, emotional, verbal, psychological, and economic abuse (Section 3).
    • Even a single act of harm or injury qualifies as domestic violence.
    Beneficiaries
    • Any woman in a domestic relationship (Section 2).
    • Children can also file complaints, and any person can file on their behalf (Section 2).
    Respondents
    • Adult male members in domestic relationships (Section 2).
    • Relatives of the husband or male partner can also be respondents (Section 2).
    Rights to Residence Women cannot be denied access to resources during legal proceedings (Section 17).
    Other Rights
    • Access to police, shelter, medical aid, and legal assistance.
    • Can obtain various court orders, including protection, residence, and compensation orders (Section 18).
    Remedial Measures
    • Victims entitled to medical facilities, counseling, and shelter (Section 12).
      • Both parties may receive counseling as directed by the court (Section 14).
    • Respondents required to provide compensation for losses incurred by the victim (Section 20).
    • Courts to order respondents to pay damages for injuries, including mental and emotional trauma, resulting from domestic violence (Section 22).
    Protection Officers Appointment of officers in each district, preferably women, with necessary qualifications (Section 8).
    Fixed Timeline All complaints must be heard and disposed of within 60 days (Section 12).

     

    PYQ:

    [2022] Explore and evaluate the impact of ‘Work From Home’ on family relationships.
  • [3 May 2024] The Hindu Op-ed: The Judiciary’s Shadow over Standard-Essential Patents

    [3 May 2024] The Hindu Op-ed: The Judiciary’s Shadow over Standard-Essential Patents

    Mains PYQ Relevance: 

    Q) To achieve the desired objectives, it is necessary to ensure that the regulatory institutions remain independent and autonomous. Discuss in the light of experiences in the recent past. (UPSC IAS/2015)

    Q) The product diversification of financial institutions and insurance companies, resulting in the overlapping of products and services strengthens the case for the merger of the two regulatory agencies, namely SEBI and IRDA. Justify. (UPSC IAS/2013)

    Note4Students: 

    Prelims: Standard Essential Patents (SEP);

    Mains: The effect of judicial lethargy and activism on Standard essential patents (SEP);

    Mentor comments: There is a possible crisis brewing in India over how certain technology companies are wielding ‘standard essential patents’ (SEP) against the telecom manufacturing sector in India. This is a complex policy issue that has direct ramifications for India’s effort to build a domestic manufacturing industry for cellular phones. So far, the issues of regulating SEPs have been left to the judiciary, which, as an institution, has mostly missed the ball.

    Let’s learn

    —

    Why in the News?

    The government must put in place measures to regulate Standard Essential Patents before the judiciary causes further damage to India’s manufacturing dreams.

    What are ‘Standard Essential Patents’ (SEP)? 

    • These are the types of patents that cover technologies that are adopted by the industry as “standards”. For example, technologies such as CDMA, GSM, and LTE are all industry standards in the telecom sector. 
    • Technological standards are especially important to ensure the interoperability of different brands of cellular phones manufactured by different companies.
      • For example, once GSM was adopted as a standard, all manufacturers had to ensure that the handsets that they manufactured were compatible with GSM.

    The Opaque Model:

    • Countries with little innovation in the telecom sector, such as India, have minimal influence over the setting of standards or the licensing of Standard Essential Patents (SEPs). This lack of influence contributes to the opacity of the process.
    • Standard-setting organizations (SSOs) are primarily run by private technology companies, leading to a concentration of power and decision-making among these entities.
    • Owners of SEPs can demand extortionary royalties or licensing terms from manufacturers due to the lack of alternatives. This practice can block competition and hinder market entry for smaller players.
    • The lack of alternatives and the necessity for manufacturers to license SEPs create a “patent holdup” problem, where owners of SEPs can exploit their position to extract higher licensing fees.
    • Despite the theoretical expectation that SSOs would prevent unfair practices, the self-regulation model has failed in practice. This failure is evidenced by the record fines imposed on some SEP owners for engaging in anti-competitive practices.

    The Effect of Judicial Lethargy and Activism

    • Lack of Investigation into Abusive Licensing Practices: Due to judicial lethargy and delays, the Indian government has yet not investigated potentially abusive licensing practices of technology companies owning Standard Essential Patents (SEPs).  
    • Protracted Litigation: Litigation surrounding competition law issues has been mired in delays and remained pending for an extended period, resulting in a lack of resolution. For instance, a case involving Ericsson challenging the Competition Commission of India’s power lasted for seven years before a judgment was delivered.
    • Impact on Manufacturers: The prolonged litigation and uncertainty have adversely affected manufacturers, particularly Indian companies, who have been required to deposit substantial sums of money with the court during the pendency of trials. This has strained their financial resources and affected their ability to operate effectively.
    • Unprecedented Interim Orders: The Delhi High Court has issued unprecedented “deposit” orders, requiring manufacturers to deposit large sums of money with the court before trial.
      • These orders lack legal basis and are unfair to defendants, depriving them of working capital for the duration of the trial.
    • Impact on Investment and Manufacturing Sector: Judicial lethargy and activism have negative implications for the government’s efforts to attract investment in the manufacturing sector.
      • Delays and uncertainties in legal proceedings deter potential investors and undermine the effectiveness of government initiatives like the “production-linked incentives” scheme.
    • Questioning on the Policies of Government: The situation raises questions about the rationale behind government policies that incentivize manufacturing while overlooking issues related to abusive licensing practices by SEP owners. This inconsistency may hinder efforts to promote economic growth and job creation in the country.

    Way Forward:

    • Need for Government Intervention: There is a pressing need for the Indian government to intervene and implement measures to regulate SEPs. The current judicial delays and uncertainties surrounding SEPs are hindering India’s manufacturing aspirations.
    • Ensuring Fairness and Equity: Regulatory measures would aim to ensure fairness and equity in the licensing of SEPs, preventing monopolistic practices and extortionate royalties that could hinder competition and innovation.

  • Hindu Marriage not valid without requisite Ceremonies: SC

    Why in the news?

    • The Supreme Court recently emphasized the sacredness of Hindu marriage, stating it is not merely a social event but a ‘samskara’ and a sacrament of significant value in Indian society.
    • The court’s observations came in response to a case involving two commercial pilots seeking a divorce decree without a valid Hindu marriage ceremony.

    About Hindu Marriage Act, 1955

    Details
    Enactment Passed by the Parliament of India on May 18, 1955.
    Purpose Amendment and codification of laws related to marriage among Hindus and others.
    Applicability
    • Applies to Hindus, Buddhists, Jains, Sikhs, and others NOT governed by Muslim, Christian, Parsi, or Jewish laws.
    • NOTE: The Special Marriage Act, 1954 applies to all citizens of India, irrespective of religion, faith, or belief.  It facilitates inter-religious and inter-caste marriages.
    Conditions for Marriage Section 5 specifies conditions including age, mental capacity, consent, and absence of prohibited relationships.

    Features of the HMA
    Guardianship for Marriage Section 6 outlines the persons entitled to give consent for a bride’s marriage.
    Solemnization of Marriage Section 7 recognizes customary rites and ceremonies for Hindu marriage.
    Registration of Marriage Section 8 allows for the registration of Hindu marriages for facilitating proof.
    Ceremonies for a Hindu Marriage
    • Explains the special varieties of ceremonies that may be done to solemnize a Hindu marriage. Ex. ‘Saptapadi’
    • It acknowledges each conventional and court-registered marriage.
    Restitution of Conjugal Rights Section 9 permits application for restitution of conjugal rights if one spouse withdraws without excuse.
    Judicial Separation Section 10 provides for judicial separation based on certain grounds.
    Nullity of Marriage and Divorce Grounds for voidable marriages and divorce specified in Sections 11-13.
    Mutual Divorce Section 13B allows mutual divorce by consent of both parties.
    Alimony and Maintenance Sections 24-25 enable spouses to seek maintenance and alimony post-divorce.
    Marriage Laws (Amendment) Bill, 2010 Proposed amendments for easier divorce on grounds of irretrievable breakdown.
    Judicial Review Supreme Court rulings on divorce petitions and exercise of powers under Article 142.

    Essence of Hindu Marriage: Supreme Courts’ Observations

    • Denouncement of Unrecognized Marriages:
        • The Supreme Court denounced the practice of seeking marital status without a valid ceremony.
        • Emphasized that marriage is a lifelong commitment and not to be treated lightly.
    • Sacred Character of Hindu Marriage:
        • Hindu marriage is termed as a ‘sacrament’ with a sacred character.
        • It symbolizes the unity of two individuals into a dignified, equal, and consensual union.
    • Institutional Importance:
        • Viewed as a vital institution for procreation, family consolidation, and fostering fraternity within communities.
    • Adherence to Rites and Ceremonies:
        • The court reiterated that a Hindu marriage must adhere to the rites and ceremonies prescribed under the Hindu Marriage Act.
        • For instance, the ‘saptapadi’ ceremony is essential for validity.
    • Role of Marriage Registration:
      • Marriage registration aids in providing evidence of the wedding.
      • However, it does not confer legitimacy if the marriage is not solemnized according to the Hindu Marriage Act.

    PYQ:

    [2020] Customs and traditions suppress reason leading to obscurantism. Do you agree?

    [2015] Discuss the possible factors that inhibit India from enacting for its citizen a uniform civil code as provided for in the Directive Principles of State Policy.

  • EC’s Model Code of Conduct (MCC) Need Reforms

    Why in the news?

    The Election Commission of India (ECI) has issued notifications regarding complaints of violations of the Model Code of Conduct (MCC) against prominent leaders in India.

    Model Code of Conduct (MCC)

    • Set of guidelines : The Model Code of Conduct (MCC) is a set of guidelines issued by the Election Commission of India (EC) for political parties and candidates.
    • Aim: It aims to establish standards of conduct during election campaigns and polling.The MCC includes provisions for lodging complaints with EC observers and dictates the conduct of ministers from ruling parties during the MCC period.
    • In 2019, an addition was made concerning election manifestos, prohibiting promises contrary to constitutional ideals.
    • The MCC is not legally binding as it is not a statutory document enacted by Parliament.
    • While violating many MCC guidelines may not result in punitive action, certain actions are categorized as electoral offenses and corrupt practices under the Indian Penal Code and the Representation of the People Act, 1951.
    • Violators of these laws will face appropriate punishment.

    Evolution of MCC:

    • Origin: The Model Code of Conduct (MCC) originated as a small set of guidelines for the Assembly election in Kerala in 1960.
    • Initially, it covered various aspects such as the conduct of election meetings, processions, speeches, slogans, posters, and placards.
    • Expansion of MCC: Under Chief Election Commissioner (CEC) K V K Sundaram in 1968, the EC consulted with political parties and expanded the MCC to ensure minimum standards of behavior for free and fair elections.
    • Standard practice: By 1979, it became a standard practice for the EC to circulate the MCC before every General Election.
    • Consolidation of MCC: Over time, the MCC evolved further with consultations between the EC and political parties. In 1991, it was consolidated and re-issued with additional sections, including restrictions on the “party in power” to prevent the misuse of authority for unfair advantages.

    Features of MCC: 

    • Activation of MCC: The Model Code of Conduct (MCC) is activated immediately upon the announcement of the election schedule by the Election Commission and remains in effect until the completion of the election process, including the announcement of results.
    • Applicable on all election: It applies to all elections to the Lok Sabha, State Assemblies, State Legislative Council elections from Local Bodies, and Graduates’ and Teachers’ Constituencies.
    • Across all India: During General elections, the MCC is enforced across India, while during Legislative Assembly elections, it is enforced in the specific state going to polls.
    • Funded to adhere with MCC: All organizations, committees, corporations, and commissions funded wholly or partially by the Central or State governments are obligated to adhere to the MCC.
    • List of Political parties: In addition to listed political parties and candidates, non-political organizations conducting campaigns in support of a political party or candidate are also required to follow specific guidelines outlined by the Election Commission.

    Issues related to MCC: 

    • The political environment in the country has become more intense, leading to a decrease in the effectiveness of the Model Code of Conduct (MCC).
    • Instances of violations of the MCC are increasing rapidly and are becoming widespread and aggressive.
    • Political leaders are using their influence, resources, and persuasive tactics more aggressively than ever, often exploiting loopholes between the literal and intended meanings of the MCC.
    • Money power has become more prominent than physical strength, and advancements in technology have provided new ways to circumvent regulations.
    • The MCC lacks clarity on the consequences of violations, which weakens its ability to deter misconduct.
    • Delayed responses to violations reduce the impact of penalties and erode public trust in the Election Commission’s credibility.

    Way Forward

    • Strengthen Enforcement: Enhance the enforcement mechanisms to ensure strict adherence to the MCC guidelines. 
    • Technological Solutions: Leverage technology to improve monitoring and enforcement of MCC compliance. Implement tools such as social media monitoring, data analytics, and surveillance technology to detect and deter violations effectively.
    • Swift and Transparent Action: Ensure timely and transparent action against MCC violations. Establish clear protocols for investigating complaints and imposing penalties on violators. Swift action will enhance the deterrent effect of the MCC.

    Mains PYQ:

    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. [2017]

  • [30 April 2024] The Hindu Op-ed: The EVM-VVPAT case judgment is disappointing

    Mains PYQ Relevance: 

    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 IAS/2018)
    Q) To enhance the quality of democracy in India the Election Commission of India has proposed electoral reforms in 2016. What are the suggested reforms and how far are they significant to make democracy successful? (UPSC IAS/2017)

    Prelims:

    Consider the following statements:​  (UPSC IAS/2021)
    1. The Montagu-Chelmsford Reforms of 1919 recommended granting voting rights to all women above the age of 21.​
    2. The Government of India Act of 1935 gave women reserved seats in the legislature. ​

    Which of the statements given above is/are correct?​
    (a) 1 only
    ​(b) 2 only
    ​(c) Both 1 and 2
    ​(d) Neither 1 nor 2

    Note4Students: 

    Prelims: EVM; VVPAT; 

    Mains: Landmark Judgements by SC; Judicial Interventions;

    Mentor comments: H.G. Wells once said “Statistical thinking will one day be as necessary for efficient citizenship as the ability to read and write”. Just as water cannot be legislated to flow uphill, the establishment of statistical principles cannot be arbitrarily defined by authorities. The Supreme Court of India has recently dismissed a batch of petitions requesting 100% verification of votes cast using Electronic Voting Machines (EVMs) with Voter Verifiable Paper Audit Trail (VVPAT) slips. The top court recommended that the Election Commission of India (EC) needs to consider incorporating bar codes for each political party on the paper slips. Meanwhile, PM Modi has called the Supreme Court’s verdict a tight slap on the face of the Opposition raising doubts about EVMs and should now apologize to the nation. So, will the Supreme Court verdict end the EVM trust debate?

    Let’s learn

    —

    Why in the News?

    The SC of India cannot arbitrarily mandate that a uniform sample size of “5 EVMs per Assembly Constituency” is good enough for VVPAT-based audit of EVMs for all Assembly Constituencies across the country. 

    Context:

    • Ensuring the accuracy of votes cast is crucial – while VVPAT verification confirms votes as cast, discrepancies may arise in the counting process. 
    • Hence, to mitigate risks of EVM malfunction, it is essential to conduct manual counts of VVPAT slips against EVM tallies for a statistically significant random sample of machines, aligning with fundamental principles of statistical sampling theory to ensure the integrity of the electoral process.
    What is the VVPAT-based audit of EVMs?

    The VVPAT-based audit of EVMs is a statistical quality control technique used to ensure the accuracy of Electronic Voting Machines (EVMs) in elections.
    It involves randomly selecting a sample of EVMs and comparing their counts with the manual counts of voter slips from the Voter Verifiable Paper Audit Trail (VVPAT) system. 

    A typical case

    • Lot of Acceptance Sampling: The VVPAT-based audit of EVMs follows lot acceptance sampling, a quality control method where a sample is inspected for defects.
      • If defects exceed a set limit, the entire lot is rejected. Defective EVMs are those with discrepancies between EVM and VVPAT counts. 
    • Lack of Clarity: The Supreme Court did not specify the ‘population’ of EVMs to which its sample size relates. Further, the SC and ECI also lack clarity on handling defective EVMs in samples.
      • If defects are found, all EVMs from that population should be manually counted. Defining the population as Assembly or Parliamentary Constituencies impacts the detection probability of defective EVMs.

    What Election Commission of India (ECI) have claimed?

    • The ECI has claimed that there have been no instances of mismatch between the EVM count and the VVPAT count over the years. 
    • However, this claim is disputed, and the few mismatches that do occur could be due to multiple reasons like the well-functioning of the EVMs, an inadequate sample size that fails to detect defective EVMs effectively, or a combination of both factors. 

    Reasons behind the ECI’s claim

    • There are major three reasons:
      • The ECI and the Supreme Court’s endorsement of the current sample size and audit protocol is criticized as flawed. 
      • The Court’s judgment in the Association for Democratic Reforms vs Election Commission of India and Another (2024) is disappointing because it did not compel the ECI to make public how it has defined the ‘population’ to which its sample size relates and its ‘next steps’ in the event of a mismatch.
      • The Court also did not clarify these points on its own after seeking expert opinion.
    • Despite rejecting extreme demands like a return to paper ballots or 100% VVPAT verification, the Supreme Court’s prescribed sample size in 2019 was criticized as arbitrary and incorrect, highlighting the need for more statistically sound approaches in EVM audits.

    What needs to be done?

    • Need for Sound Audit System: We do not need to know the various ways an EVM may fail or be manipulated. What is required is a statistically sound VVPAT-based EVM audit system that can detect mismatches with 99% or 99.9% accuracy.
      • By implementing a robust, the integrity of the electoral process can be ensured without resorting to extreme measures like a return to paper ballots or 100% VVPAT verification.
    • Need to achieve Golden Mean: The VVPAT-EVM count matching should be done at the beginning of the counting day, not at the end. This statistical sampling-based, ‘management by exception‘ approach represents the golden mean as follows:
      • Where there is a perfect match, the results should be declared based on the EVM count.
      • Only where there is a mismatch, manual counting of VVPAT slips for the entire ‘population’ of EVMs should be done, and the results declared based on the VVPAT count.

  • In news: National Human Rights Commission’s (NHRC) Accreditation 

    Why in the news?

    • The National Human Rights Commission (NHRC) is gearing up to defend India’s human rights processes at a critical meeting of Global Alliance of National Human Rights Institutions (GANHRI) in Geneva.
    • A decision on retaining India’s NHRC’s “A status” accreditation is imminent at this summit.

    About National Human Rights Commission (NHRC)

    Details
    Establishment
    • A Statutory Body;
    • Established under the Protection of Human Rights Act, 1993.
    Functions
    • Inquire into any violation of human rights
    • Recommend immediate interim relief to victims or their families
    • Intervene in court proceedings involving human rights violations
    • Review constitutional and legal safeguards for human rights
    • Study international instruments on human rights
    • Promote human rights literacy
    • Support the efforts of NGOs working in the field of human rights
    Powers
    • Regulate its own procedure
    • Possess all the powers of a civil court
    • Proceedings have a judicial character
    Chairperson
    • Must be a former Justice of the Supreme Court or Chief Justice of the Supreme Court
    • Appointed by the President of India
    Members
    • Four full-time members;
    • Chairperson: former Supreme Court Justice or Chief Justice;
    • Other Member: former Judge of the Supreme Court;
    • Other Member: former Chief Justice of a High Court;
    • Three Members: with knowledge or experience in human rights, including at least one woman –
    • Seven ex-officio members:  Chairpersons of National Commissions viz., National Commission for Scheduled Castes, National Commission for Scheduled Tribes, National Commission for Women , National Commission for Minorities, National Commission for Backward Classes, National Commission for Protection of Child Rights; and the Chief Commissioner for Persons with Disabilities.
    Appointment
    • Appointed by the President, based on a committee recommendation including the Prime Minister, Speaker of Lok Sabha, Home Minister, Leaders of the Opposition in Lok Sabha and Rajya Sabha, and others
    • Consultation with the Chief Justice of India for judicial appointments
    Removal
    • Removal by order of the President of India
    • Consultation with the Supreme Court before removal
    Terms of Office
    • Hold office for a term of three years or until the age of 70
    • Ineligibility for further government employment after office
    • Eligible for reappointment
    Salaries Determined by the Central government
    Reporting
    • Submits annual or special reports to the Central government and the concerned State government
    • Reports laid before the respective legislatures, along with a memorandum of action taken on the recommendations and reasons for non-acceptance of any recommendations
    Limitations
    • The commission is not empowered to inquire into any matter after the expiry of one year from the date on which the act constituting the violation of human rights is alleged to have been committed
    • Functions are recommendatory in nature, with no power to punish or award relief to violators
    • Limited role concerning armed forces violations

     

    GANHRI Concerns about India’s NHRC

    India’s NHRC faced a potential downgrade in its accreditation status in 2023 due to concerns raised by the SCA regarding its operational independence and composition.

    • Political Interference: The NHRC-India faced objections related to political interference in appointments, compromising its independence.
    • Police Involvement: Involving the police in probes into human rights violations raised concerns about impartiality and fair investigations.
    • Lack of Cooperation: The NHRC’s poor cooperation with civil society was criticized, hindering its effectiveness in protecting human rights.
    • Lack of Diversity: The GANHRI highlighted the lack of diversity in staff and leadership positions within the NHRC. There is also lack of gender and minority representation.
    • Insufficient Protection of Marginalized Groups: The NHRC was found to have taken insufficient action to protect marginalized groups, contrary to the U.N.’s principles on national institutions (the ‘Paris Principles).

    Back2Basics: GANHRI (Global Alliance of National Human Rights Institutions)
    Purpose Promote and protect human rights globally
    Year Established 1993
    Headquarters Geneva, Switzerland
    Members National Human Rights Institutions (NHRIs) from 114 member institutions
    Key Functions
    • Promoting and strengthening NHRIs worldwide
    • Advocating for human rights at national, regional, and global levels
    • Facilitating cooperation and sharing of best practices among NHRIs
    • Providing capacity-building support to NHRIs etc.
    Organizational Structure
    • President: Elected from GANHRI members for a specified term
    • Bureau: Assists the President in overseeing GANHRI’s work
    • Sub-Committees: Focused on specific thematic or regional issues
    Key Documents
    • Paris Principles: Provide guidance for the establishment and operation of NHRIs
    • GANHRI Strategy: Outlines the organization’s strategic objectives and actions
    Sub-Committee on Accreditation (SCA)
    • Part of a five-year peer evaluation cycle for all 114 member institutions of GANHRI.
    • Accreditation status holds significance as it determines its voting rights at international human rights forums.

     

    PYQ:

    [2011] Consider the following:

    1. Right to education.
    2. Right to equal access to public service.
    3. Right to food.

    Which of the above is/are Human Right/Rights under “Universal Declaration of Human Rights”?

    (a) 1 only

    (b) 1 and 2 only

    (c) 3 only

    (d) 1, 2 and 3

  • [26th April 2024] The Hindu Op-ed: Questioning the polls ‘rain washes out play’ moments

    PYQ Relevance:
    Mains: 
    Q) Discuss the role of the Election Commission of India in the light of the evolution of the Model Code of Conduct. (UPSC IAS/2022) 

    Q) Discuss the procedures to decide the disputes arising out of the election of a Member of the Parliament or State Legislature under The Representation of the People Act, 1951. What are the grounds on which the election of any returned candidate may be declared void? What remedy is available to the aggrieved party against the decision? Refer to the case laws. (UPSC IAS/2022) 

    Prelims:
    Q) Consider the following statements: (UPSC IAS/2017)
    1. The Election Commission of India is a five-member body.
    2. Union Ministry of Home Affairs decides the election schedule for the conduct of both general elections and bye-elections.
    3. Election Commission resolves the disputes relating to splits/mergers of recognised political parties.Which of the statements given above is/are correct?
    a) 1 and 2 only
    b) 2 only
    c) 2 and 3 only
    d) 3 only

    Note4Students: 

    Prelims: Polity; Elections; Rule 11 of the Conduct of Election Rules 1961

    Mains: Polity; Elections; General financial rules;

    Mentor comments: Getting elected unopposed is perfectly legal in the existing provisions of electoral laws and practice. It is also thrilling. You emerge as the unrivalled representative of the people without the people having chosen you because you are the only choice on the ballot. It is like achieving something without making the requisite effort.

    Let’s learn. 

    —

    Why in the News?

    The Surat and Arunachal Pradesh results are issues that call for debate where an election is made to seem ‘free and fair’ despite people not having cast a single vote.

    The reason behind the Surat and Arunachal Pradesh results are issues that call for debate 

    • Uncontested seats: In Surat and Arunachal Pradesh elections, there have been instances where candidates were disqualified or withdrew voluntarily, resulting in uncontested seats. This raises questions about the democratic process.
    • Contesting candidates is equal to the number of seats: The Representation of the People Act, 1951 states that if the number of contesting candidates is equal to the number of seats, the returning officer shall declare those candidates elected without a poll.
    • No impact of NOTA: The NOTA (None of the Above) option was introduced to allow voters to express dissatisfaction, but it does not actually impact the election outcome.

    The question raised in this situation:

    • The real question is what happens if no one contests the election or all voters boycott it, resulting in no one being elected to fill the vacancy.
    • In such a scenario, there is a “victor” in the sense that someone is declared elected, but there is no “vanquished” party, only those who were ruled out or withdrew voluntarily.
    • The key issue is whether the Election Commission is bound to call for the constituency to elect a person again, similar to how unresponsive bids are handled in government procurement.

    Rule 11 of the Conduct of Election Rules 1961 says: 

    (1) The returning officer shall… cause a copy of the list of contesting candidates to be affixed in some conspicuous place in his office and where the number of contesting candidates is equal to, or less than, the number of seats to be filled, he shall, immediately after such affixation, declare under sub-section 

    (2) or as the case may be, sub-section 

    (3) of section 53 the result of the election in such one of the Forms 21 to 21B as may be appropriate

    The General financial rules

    • Fair, Transparent, and Reasonable Procedure: The GFRs emphasize the importance of conducting public procurement in a fair, transparent, and reasonable manner. This includes provisions for situations like the ‘Single Tender Enquiry’ under Rule 166, which allows for exceptions under certain conditions.
    • Evaluation of Lack of Competition: Rule 173(xx) addresses the issue of lack of competition in public procurement. It states that lack of competition should not be determined solely based on the number of bidders. 
    • Comparison with Electoral Process: The author draws a comparison between the principles outlined in the GFRs for public procurement and the electoral process under the Representation of the People Act (RPA).  
    • Exclusion of the Elector: The passage highlights a perceived dichotomy in the electoral process where the elector may be excluded from choosing their representative if there is only one candidate. This raises concerns about the fairness and representativeness of the electoral system.

    Conclusion:

    Efforts should be made to encourage greater participation in the electoral process. This could involve public awareness campaigns, incentives for candidates to contest elections, and measures to ensure that voters are informed and motivated to participate.

  • SC declines plea against Collegium system to protect public’s best interest

    Why in the news? 

    The petition, filed by advocate Mathews Nedumpara, seeks a revival of the NJAC. SC Registrar says the issue is already settled, and a repeat litigation is a “needless waste of judicial time and energy”

    What is the Registrar of supreme court?

    • The registrar is a chief executive officer of a judicial forum. They are in charge of the entire registry of the department.

    What is NJAC (National Judicial Appointments Commission)? 

    • In August 2014, Parliament passed the Constitution (99th Amendment) Act, 2014 along with the National Judicial Appointments Commission (NJAC) Act, 2014, providing for the creation of an independent commission to appoint judges to the Supreme Court and high courts.
    • In 2015, Supreme Court struck down the National Judicial Appointments Commission (NJAC) and the 99th Amendment

    Actually, Collegium system is used for the appointment of SC Judges 

    First Judges Case (1981): 

    • Also known as S.P. Gupta case (December 30, 1981), the Supreme Court held that consultation does not mean concurrence and it only implies exchange of views
    • It declared that the “primacy” of the Chief Justice of India (CJI)s recommendation on judicial appointments and transfers can be refused for “cogent reasons.”
    • The ruling gave the Executive primacy over the Judiciary in judicial appointments.

    Second Judges Case (1993):

    • SC reversed its earlier ruling and changed the meaning of the word consultation to concurrence.
    • Hence, it ruled that the advice tendered by the Chief Justice of India is binding on the President in the matters of appointment of the judges of the Supreme Court.
    • But, the Chief Justice would tender his advice on the matter after consulting two of his senior most colleagues (this was considered as Collegium)
    • The collegium can veto the government if the names are sent back by the latter for reconsideration.
    • The basic tenet behind the collegium system is that the judiciary should have primacy over the government in matters of appointments and transfers in order to remain independent.
    • The opinions of each member of the Collegium and other judges consulted should be made in writing and form part of the file on the candidate sent to the government.
    • Thus, the executive element in the appointment process was reduced to a minimum.
    • If the CJI had consulted non-judges, he should make a memorandum containing the substance of consultation, which would also be part of the file. After the receipt of the Collegium recommendation, the Law Minister would forward it to the Prime Minister, who would advise the President in the matter of appointment.

    Third Judges Case (1998):

    • SC on President’s reference expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues while HC collegium is led by its Chief Justice and four other senior most judges of that court.
    • Names recommended for appointment by a HC collegium reaches the government only after approval by the CJI and the SC collegium.

    Conclusion: 

    The primary argument against the NJAC was that it could potentially undermine judicial independence by giving the executive a significant role in judicial appointments. Any alternative system, including a revised version of the NJAC, would need to ensure that judicial independence is safeguarded.

    Mains PYQ 

    Q Critically examine the Supreme Court’s judgement on ‘National Judicial Appointments Commission Act, 2014’ with reference to appointment of judges of higher judiciary in India.

  • Madras High Court Ruling on Waqf Properties

    Why in the news?

    • The Madras High Court ruled the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Amendment Act of 2010 as repugnant and unconstitutional.
    • The amendment conferred authority on the Tamil Nadu Waqf Board CEO to order evictions, contradicting with the Central legislation, the Waqf Act of 1995.

    Madras HC Verdict:

    • Parliament’s 2013 amendment to Waqf Act prevails over Tamil Nadu’s legislation.
    • It already provides uniform and effective mechanisms for possession recovery.

    Arguments made by TN:

    • Lawyers argue 2010 amendment exercised power under Concurrent List, required Presidential assent.
    • State law and Central law cannot co-exist, Parliament’s 2013 amendment prevails.
    • Original provisions of Waqf Act not sufficient to deal with encroachments.
    • Tamil Nadu enacted 2010 amendment based on Sachar Committee recommendation.

    Sachar Committee:

    A seven-member high-level committee headed by former Chief Justice of Delhi High Court Rajinder Sachar to study the social, economic, and educational condition of Muslims in March 2005.

     

    What is Doctrine of Repugnancy?

    • The doctrine of repugnancy arises when two laws conflict and produce different outcomes when applied to the same situation.
    • It occurs when the provisions of two laws are so contradictory that complying with one law would mean violating the other.
    • Article 254 of the Indian Constitution establishes the Doctrine of Repugnancy in India, providing a framework for resolving conflicts between Central and State laws.
    • It resolves conflicts between Central and State laws.

    Key Provisions of Article 254:

    1.    Article 254(1):

    • Declares that if a law passed by a State Legislature contradicts a law passed by Parliament, the State law will be deemed void.
    • The law enacted by Parliament will take precedence over the State law.

    2.    Article 254(2):

    • Allows States to enforce legislation that contradicts Parliament’s laws if they receive assent from the President.

     

    PYQ:

    [2016]  The Parliament of India acquires the power to legislate on any item in the State List in the national interest if a resolution to that effect is passed by the:

    (a) Lok Sabha by a simple majority of its total membership

    (b) Lok Sabha by a majority of not less than two-thirds of its total membership

    (c) Rajya Sabha by a simple majority of its total membership

    (d) Rajya Sabha by a majority of not less than two-thirds of its members present and voting

    Back2Basics: What is Waqf property and what does the Waqf Act state?

    Details
    Enactment
    • Enacted by Jawaharlal Nehru in 1954 to centralize Waqf properties.
    • Led to the formation of the Central Waqf Council in 1964.
    • Amended in 1995 under the Congress government of PV Narasimha Rao, granting extensive powers to Waqf Boards.
    Key Provisions
    • Section 3(R) of the 1995 amendment designates properties as Waqf if deemed sacred, religious, or charitable according to Muslim law.
    • Article 40 mandates the Waqf Surveyor and Board to determine property ownership.
    • 2013 amendments require State Waqf Boards to appoint Survey Commissioners to manage properties and settle disputes.
    Legal Status Property declared as Waqf cannot be contested in court; appeals must be made to the Waqf Board.
    Chairmanship
    • Union Minority Welfare Minister serves as ex-officio chairman of the Central Waqf Council.
    • State Waqf Boards consist of seven Muslim members.

    Waqf Property
    Details
    Definition
    • Property donated for charitable purposes in the name of Allah.
    • Donated by individuals for public benefit; no individual ownership rights.
    Donation Criteria Must be donated by Muslims above the age of 18.
    Ownership
    • Upon donation, property becomes Allah’s possession;
    • Family members have no claim after donor’s demise.
    Types Includes movable or immovable property donated for charitable purposes.
    Management Overseen by the Waqf Board, responsible for legal matters and property administration.
    Total Properties
    • Over 8,65,646 properties registered with the Waqf Board in India.
    • Estimated to cover 8 lakh acres of land with a market value of approximately Rs 1.20 lakh crore.
    • State-wide Share:
    1. West Bengal: More than 80,000 properties registered.
    2. Punjab: 70,994 properties under Waqf Board.
    3. Tamil Nadu: 65,945 properties managed.
    4. Karnataka: 61,195 properties overseen.