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Subject: Polity

  • Centre notifies Implementation of Citizenship Amendment Act (CAA) Rules

    In the news

    • Just days ahead of the announcement of Lok Sabha election, the Union Home Ministry notified the Citizenship Amendment Rules, 2024.
    • This would now enable the implementation of the Citizenship Amendment Act (CAA) passed by Parliament in 2019.

    Citizenship (Amendment) Act (CAA), 2019: Key Provisions

    • Basic idea: CAA, 2019, aims to amend the Citizenship Act, 1955, to grant Indian citizenship to specific categories of illegal migrants.
    • Eligible Religions: CAA targets Hindu, Sikh, Buddhist, Jain, Parsi, and Christian illegal migrants from Afghanistan, Bangladesh, and Pakistan, making them eligible for Indian citizenship.
    • Objective: The primary objective is to facilitate citizenship for non-Muslim immigrants from India’s three Muslim-majority neighboring countries.
    • Residence Requirement: The Citizenship Act, 1955, normally requires 11 of the previous 14 years of residence in India as a condition for naturalization.
    • Amendment: CAA reduces this requirement to 6 years for applicants belonging to the specified religions and countries.
    • Exemption from Criminal Cases: Members of the designated communities are exempted from criminal cases under the Foreigners Act, 1946, and the Passport Act, 1920, if they entered India before December 31, 2014.

    Defining Illegal Migrants

    • Status under Present Laws: Existing laws prohibit illegal migrants from acquiring Indian citizenship.
    • CAA’s Definition: CAA classifies an illegal migrant as a foreigner who enters India without valid travel documents (passport and visa) or overstays beyond the allowed period.
    • Penalties: Illegal migrants can face imprisonment or deportation under the Foreigners Act, 1946, and The Passport (Entry into India) Act, 1920.

    Exceptions under CAA

    • Conditions for Exemption: CAA outlines four conditions that, if met, exempt certain individuals from being treated as illegal migrants:
      1. They belong to the specified religions (Hindu, Sikh, Buddhist, Jain, Parsi, or Christian).
      2. They hail from Afghanistan, Bangladesh, or Pakistan.
      3. They entered India on or before December 31, 2014.
      4. They are not in certain tribal areas of Assam, Meghalaya, Mizoram, or Tripura (Sixth Schedule) or “Inner Line” permit areas (Arunachal Pradesh, Mizoram, and Nagaland).

    Controversies Surrounding CAA

    • Country of Origin: CAA categorizes migrants based on their country of origin, specifically Afghanistan, Pakistan, and Bangladesh.
    • Religious Exclusivity: It raises questions about why only six specified religious minorities have been considered in the Act.
    • Omission of Rohingya: The Act doesn’t address the Rohingya Muslims from Myanmar, who have faced persecution.
    • Entry Date Differentiation: The differential treatment of migrants based on their entry date, i.e., before or after December 31, 2014, has generated debate.
    • Secularism Concerns: Critics argue that granting citizenship based on religion contradicts the secular principles of India’s Constitution, considered part of the unalterable basic structure.

    Constitutionality Check

    • The challenge may rest primarily on the grounds that the law violates Article 14 of the Constitution that guarantees that no person shall be denied the right to equality before law or the equal protection of law in the territory of India.
    • The Supreme Court has developed a Two-Pronged Test to examine a law on the grounds of Article 14.
    1. First, any differentiation between groups of persons must be founded on “intelligible differentia”
    2. Second, differentia must have a rational nexus to the object sought to be achieved by the Act
    • Simply put, for a law to satisfy the conditions under Article 14, it has to first create a “reasonable class” of subjects that it seeks to govern under the law.
    • Even if the classification is reasonable, any person who falls in that category has to be treated alike.

    Impact on Assam and Assam Accord

    • Intersection with Section 6A: The CAA intersects with Section 6A of The Citizenship Act, 1955, which determines citizenship criteria in Assam.
    • Assam Accord: Section 6A, linked to the Assam Accord, sets criteria for determining citizenship in Assam, posing potential conflicts with the CAA’s provisions.
    • Base Cut-off Date and Regularization: The Assam Accord establishes a base cut-off date for identifying and regularizing foreigners in Assam, impacting the implementation of the CAA in the state.

    Way forward

    • India is a constitutional democracy with a basic structure that assures a secure and spacious home for all Indians.
    • Being partitioned on religious grounds, India has to undertake a balancing act to protect the religious minorities in its neighbourhood.
    • These minorities are under constant threat of persecution and vandalism.
    • India needs to balance its civilization duties to protect those who are prosecuted in the neighbourhood.

    Try this PYQ from CSE Prelims 2021:

    Q.With reference to India, consider the following statements:​

    1. There is only one citizenship and one domicile.​
    2. A citizen by birth only can become the Head of State.​
    3. A foreigner once granted the citizenship cannot be deprived of it under any circumstances.​

    Which of the statements given above is/are correct?​

    (a) 1 only ​

    (b) 2 only​

    (c) 1 and 3 ​

    (s) 2 and 3​

  • France enshrines Right to Abortion in Constitution

    abortion

    In the news

    • France’s historic decision to enshrine the right to abortion in its constitution marks a pivotal moment in the global struggle for women’s reproductive rights.
    • Against the backdrop of International Women’s Day, this groundbreaking amendment underscores France’s commitment to upholding women’s autonomy and healthcare choices.

    Debate:

    1. Right to ‘Bodily Autonomy’ of Women is paramount.
    2. ‘Right to Life’ of the foetus is paramount.

    France’s constitutional council previously upheld abortion rights based on the notion of Liberty enshrined in the 1789 Declaration of the Rights of Man.

    Why discuss this?

    • The legislative journey leading to this transformative reform and its implications resonate far beyond France’s borders, resonating with ongoing debates on reproductive rights worldwide.

    Abortion in France: Legislative Progression

    • National Assembly and Senate Approval: Initially passed by the National Assembly in January, the amendment received unanimous support from the Senate last week, culminating in a joint parliamentary session for final ratification.
    • Bipartisan Consensus: With an overwhelming majority of legislators voting in favor, the reform underscores broad bipartisan consensus on safeguarding women’s reproductive freedoms.
    • Constitutional Modification: The amendment elevates abortion from a statutory right to a constitutionally guaranteed freedom, solidifying its legal protection against potential legislative changes.

    Amendment Provisions

    • Constitutional Revision: The amendment revises Article 34 of the French constitution, stipulating that women’s freedom to terminate pregnancies is constitutionally guaranteed.
    • Preservation of Existing Rights: By mandating that future legislation uphold existing abortion laws, the amendment ensures continuity and stability in reproductive healthcare policies.
    • Global Context: Acknowledging global trends of encroachment on abortion rights, the legislation reaffirms France’s commitment to resisting regressive measures that curtail women’s autonomy.

    Global Implications

    • Unprecedented Precedent: France becomes the first nation to embed abortion rights in its constitution, setting a groundbreaking precedent for global reproductive justice movements.
    • European Landscape: Amidst escalating efforts to restrict abortion access in some European countries, France’s bold initiative offers a beacon of hope and inspiration for defenders of reproductive rights across the continent.
    • European Charter of Fundamental Rights: The amendment’s resonance with fundamental rights principles may catalyze broader efforts to incorporate abortion protections into the European Charter of Fundamental Rights.

    Public Reception and Political Landscape

    • Public Support: Reflecting widespread public sentiment, opinion polls indicate overwhelming support for constitutionalizing abortion rights, with 81% of respondents endorsing the reform.
    • Political Consensus: Unlike the polarized discourse on abortion in some countries, France’s political spectrum exhibits remarkable unity in upholding women’s reproductive autonomy.
    • Criticism and Allegations: While critics decry the reform as a political maneuver by President Macron to court left-leaning factions, its substantive impact on women’s rights remains undeniable.

    Global Abortion Landscape

    • European Context: Against the backdrop of escalating abortion restrictions in some European nations, France’s progressive stance contrasts starkly with regressive measures adopted elsewhere.
    • Global Reverberations: France’s pioneering initiative may reverberate globally, emboldening movements to advance abortion rights and combat legislative regressions worldwide.

    India’s Abortion Policies

    • Legal Framework: India implemented the Medical Termination of Pregnancy (MTP) Act in 1971, allowing abortions under specific conditions up to 20 weeks, with recent amendments extending the limit to 24 weeks in certain cases.
    • Recent Amendments: The 2021 amendment extends the permissible gestational limit for abortions and streamlines the approval process for certain categories of pregnancies.
    • Continued Advocacy: While India’s legal framework for abortion is comparatively progressive, ongoing advocacy efforts seek to further enhance access to safe and legal abortion services nationwide.

    Pregnancy Laws in India:

     

    • The Medical Termination of Pregnancy (MTP) Act, enacted on April 1, 1972, applied to all of India except Jammu and Kashmir.
    • Section 312 of IPC Code, 1860, criminalizes voluntarily causing miscarriage, even with the pregnant woman’s consent, except to save her life, leading to potential prosecution for abortion.
    • The MTP Act, 1971, permitted pregnancy termination in two stages:
    • Up to 12 weeks after conception, abortion required a single doctor’s opinion.
    • Between 12 to 20 weeks, two doctors’ opinions determined if continuing the pregnancy posed risks to the woman’s life or mental/physical health or if the child would be seriously handicapped.

    Amendments in 2021:

    • The law now allows abortions up to 20 weeks based on one doctor’s advice.
    • For pregnancies between 20 to 24 weeks, two doctors’ opinions are needed.
    • Specific categories eligible for termination under section 3B of the MTP Act rules include survivors of sexual assault, minors, marital status changes, physically disabled women, mentally ill women, foetuses with severe abnormalities, and pregnancies in humanitarian settings.

    Conclusion

    • By embedding abortion rights within its constitutional fabric, France sets a transformative precedent for advancing women’s autonomy and healthcare choices worldwide.
    • As the international community grapples with escalating threats to reproductive rights, France’s bold stance offers a beacon of hope and solidarity for women everywhere, underscoring the imperative of safeguarding reproductive freedoms as fundamental human rights.

  • Sudha Murthy nominated to Rajya Sabha

    sudha murthy

    What is the news?

    • Noted author and philanthropist Sudha Murthy has been nominated to the Rajya Sabha by the President of India on International Women’s Day.

    Nominated Members to Rajya Sabha

    • 12 members are nominated to the RS by the President of India for six-year term.
    • This is for their contributions towards arts, literature, sciences, and social services.
    • This right has been bestowed upon the President according to the Fourth Schedule under Articles 4(1) and 80(2) of the Constitution of India.

    Normal composition

    • The present strength is 245 members of whom 233 are representatives of the states and UTs and 12 are nominated by the President.
    • The Rajya Sabha is not subject to dissolution; one-third of its members retire every second year.

    Constitutional provisions for nominated members

    • 80(1)(a) of the Constitution of India makes provision for the nomination of 12 members to the Rajya Sabha by the President of India under provisions of Article 80(3).
    • 80(3) says that the persons to be nominated as members must possess special knowledge or practical experience in respect of such matters as the following namely: Literature, science, art and social service.

    Powers and privileges of such members

    • A nominated member enjoys all the powers and privileges and immunities available to an elected Member of Parliament.
    • They take part in the proceedings of the House as any other member.
    • Nominated members are however not entitled to vote in an election of the President of India.
    • They however have rights to vote in the vice presidential election.
    • As per Article 99 of the Constitution, a nominated member is allowed six months’ time should he join a political party.

    Try this PYQ from CSE Prelims 2013:

    Consider the following statements:

    1. The Chairman and the Deputy Chairman of the Rajya Sabha are not the members of that House.
    2. While the nominated members of the two Houses of the Parliament have no voting right in the presidential election, they have the right to vote in the election of the Vice President.

    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

     

    [wpdiscuz-feedback id=”biuh1wymo0″ question=”Please leave a feedback on this” opened=”1″]Post your answers here.[/wpdiscuz-feedback]

  • Rethinking Caste Dynamics: Judicial Reflections and Societal Realities

    In the news

    • In a noteworthy observation, Justice Anita Sumanth of the Madras High Court delved into the complex interplay between caste, societal benefits, and historical contexts while addressing quo warranto pleas against three lawmakers.
    • Her remarks shed light on the multifaceted nature of caste dynamics in contemporary Tamil Nadu.

    Quo Warranto: A Writ Jurisdiction

     

    • Definition: This legal remedy allows the court to investigate the legality of an individual’s claim to a public office, preventing unauthorized individuals from unlawfully occupying such positions.
    • Scope: It applies to substantive public offices of a permanent nature established by statute or the Constitution, excluding ministerial or private roles.
    • Applicability: Unlike other writs, Quo Warranto can be sought by any interested party, not limited to the aggrieved party.

     

    Constitutional Provisions

     

    • Authority: The power to issue writs, including Quo Warranto, was bestowed upon the Supreme Court (Article 32) and High Courts (Article 226) by the Constitution.
    • Objective: Quo Warranto aims to halt usurpers from wrongfully holding public office and exercising its privileges without lawful authority.

     

    Conditions for Issuing Quo Warranto

     

    • Public Office: The office in question must be public, established by law or the Constitution.
    • Permanent Tenure: It should entail permanent tenure not subject to arbitrary termination.
    • Actual Possession: The individual against whom the writ is sought must have the office and actively utilizing its powers.
    • Disqualification: Quo Warranto can also be issued if a disqualified individual continues to hold the office illegally.

     

    Circumstances for Refusal

     

    • Ineffectiveness: The court may refuse to grant Quo Warranto if its intervention would not alter the outcome or if the situation is deemed inconsequential.
    • Non-public Office: If the office in question is private, the writ cannot be issued.

     

    Landmark Judgments

     

    1. Jamalpur Arya Samaj Sabha vs. Dr. D Rama (1954): The court declined to issue the writ against a private entity, emphasizing its inapplicability to non-public offices.
    2. Niranjan Kumar Goenka vs. The University of Bihar, Muzzfarpur (1971): Established that Quo Warranto cannot be invoked against individuals not holding a public office.

     

    Judicial Insights on Castes

    • Caste and State Benefits: Justice Sumanth highlighted the nexus between caste-based divisions and state-provided benefits, suggesting that the fervour surrounding caste issues is fueled by socio-economic advantages conferred by the state on different caste groups.
    • Historical Perspective: While acknowledging the prevalence of caste divisions in society, the judge emphasized that the present-day caste system is relatively recent, tracing its origins to less than a century ago, rather than being solely rooted in ancient Varna Dharma principles.
    • Varna Dharma vs. Caste System: Drawing a distinction, Justice Sumanth elucidated that Varna Dharma, historically, delineated societal roles based on occupation rather than birth, contrasting it with the entrenched birth-based caste system prevalent today.

    Societal Realities

    • Cacophony of Castes: Tamil Nadu, with its 370 registered castes, witnesses a cacophony of societal pressures and pulls from various caste groups, reflecting the complexities of caste dynamics in the state.
    • Benefits and Ferocity: The judge noted that the ferocity among different caste groups partly stems from the benefits accorded to them by the state, raising questions about the fairness and equity of resource distribution.

    Key Recommendations

    • Acknowledgment of Past Injustices: While refraining from detailing past atrocities, the judge emphasized the need for acknowledging and deprecating historical injustices, calling for ongoing efforts towards repair and damage control.
    • Forward-looking Approach: Justice Sumanth advocated for sincere introspection among lawmakers to evolve methods for correcting injustices and fostering equality in the present and future.

    Conclusion

    • In her nuanced reflections, Justice Sumanth highlighted the need for a holistic approach towards addressing caste-related issues.
    • She emphasized the importance of societal introspection, equitable resource distribution, and leadership accountability in fostering a more inclusive and just society.

  • Ladakh and the Sixth Schedule of the Constitution

    In the news

    • A shutdown and protest rally in Ladakh recently demanded statehood for the newly created Union Territory (UT) and its inclusion in the Sixth Schedule of the Constitution.
    • This highlights a broader issue concerning governance and autonomy in the region.

    Centre’s Offer to Ladakh Representatives

    • Article 371-like Protections: MHA offered to extend Article 371-like protections to Ladakh, addressing concerns raised by the Leh Apex Body (ABL) and the Kargil Democratic Alliance (KDA).
    • Exclusion from Sixth Schedule: While acknowledging concerns, the government opts against including Ladakh in the Sixth Schedule, indicating a different approach to address regional issues.

    Background: Ladakh’s Governance Post Article 370 Repeal

    • Recognition as Union Territory: Post the repeal of Article 370, Ladakh was recognized as a separate Union Territory “without legislature,” akin to UTs like New Delhi and Pondicherry.
    • Demand for Sixth Schedule Inclusion: Organizations like ABL and KDA have advocated for Ladakh’s inclusion under the Sixth Schedule, seeking greater autonomy in governance.

    What is the Sixth Schedule?

    • Article 244 in Part X of the Constitution outlines a special system of administration for designated ‘scheduled areas’ and ‘tribal areas.’
    • The Fifth Schedule deals with scheduled areas and tribes in states except Assam, Meghalaya, Tripura, and Mizoram (ATM2).
    • The Sixth Schedule focuses on tribal areas in these four northeastern states.

    Salient Features of Sixth Schedule:

    (1) Autonomous Districts

    • Tribal areas are constituted as autonomous districts within the executive authority of the state.
    • The governor holds powers to organize and re-organize these districts, including boundary changes and division into autonomous regions.

    (2) District and Regional Councils:

    • Each district council consists of 30 members, including nominated and elected
    • Regional councils also exist within autonomous regions.
    • These councils administer areas under their jurisdiction, making laws on specific matters with the governor’s assent.
    • They can establish village councils or courts for dispute resolution, with specified jurisdiction over appeals.
    • District councils manage various facilities and services within their areas, including education and healthcare.
    • They also have the authority to impose taxes and regulate certain activities.

    (3) Laws Exemptions and Modifications:

    • Acts of Parliament or state legislatures may not apply directly or may apply with modifications.
    • The president or governor holds the power of direction in this regard, depending on the region.

    (4) Governor’s Authority:

    • The governor may appoint a commission to examine and report on matters concerning autonomous districts or regions.
    • He/she also has the authority to dissolve a district or regional council based on commission recommendations.

    Tribal Areas under Sixth Schedule

    • Assam: North Cachar Hills District, Karbi Anglong District, Bodoland Territorial Areas District.
    • Meghalaya: Khasi Hills District, Jaintia Hills District, Garo Hills District.
    • Tripura: Tripura Tribal Areas District.
    • Mizoram: Chakma District, Mara District, Lai District.

    Reasons for such Demands in Ladakh

    • Cultural Autonomy: Tribes in Assam, Meghalaya, Tripura, and Mizoram maintain distinct cultures, customs, and civilizations. Unlike tribes in other parts of India, they have not assimilated much with the majority population.
    • Meeting tribal aspiration: The Parliamentary standing committee recommended including of Ladakh in the Sixth Schedule because its tribal communities account for 79.61% of its total population.
    • Autonomy and self-governance: Extending the Sixth Schedule to Ladakh could provide greater autonomy and self-governance to the local tribal communities.
    • Cultural preservation: It could also help to protect the unique cultural identity of the local communities and preserve their traditional practices and customs.

    Challenges posed by this demand

    • Fragmentation: The demand to extend the Sixth Schedule to Ladakh has faced some opposition from certain quarters, who argue that it could lead to further fragmentation of the region and create new administrative challenges.
    • Losing political capital: There are also concerns over the potential impact of the demand on the political and administrative structure of the region.

    Conclusion

    • While stopping short of Sixth Schedule inclusion, MHA’s move demonstrates a commitment to balancing local autonomy with national governance priorities.
    • If implemented, it would mark the first instance of special provisions being introduced for a Union Territory, potentially setting a precedent for future governance arrangements in such regions.

    Try this PYQ from CSE Prelim 2015:

    Q.The provisions in the Fifth Schedule and Sixth Schedule in the Constitution of India are made to:

    (a) Protect the interests of Scheduled Tribes

    (b) Determine the boundaries between states

    (c) Determine the powers, authorities, and responsibilities of Panchayats

    (d) Protect the interests of all the Border States

  • The long road to reforming India’s political party system

    Why in the News?

    Recent political events make one doubt the perceived need and utility of India’s Anti-defection law.

     Context:

    • Political Defections prevalent across India:
      • In Bihar, MLAs from Congress and RJD shifted to BJP, leading to disqualifications under the anti-defection law. Similar incidents occurred in Himachal Pradesh and Andhra Pradesh.
      • A recent adjudicatory development in Maharashtra raised doubts on the necessity of India’s anti-defection law, where factions within NCP were not disqualified based on intra-party dissent.
    • Need for better inner-party democracy: The Speaker highlighted the challenges in applying the anti-defection law effectively, emphasizing the need for better inner-party democracy reforms to address political defections and ensure legislative stability.

     Transgressions that pass muster /Challenges with Anti-defection law:

    • Intra-party dissent and Anti-defection law: The Speaker’s decision in the NCP split case highlights the complexity of applying the anti-defection law to intra-party dissent. The intra-party dissent cannot be subject to the punitive provisions of the Tenth Schedule due legislative majority.
    • Mergers and Anti-defection law: Under the current anti-defection law, a faction that splits from its original party cannot claim exemption from disqualification, as the “split” exception was deleted from the Tenth Schedule in 2003.
      • The only exemption available now is that of mergers, which mandatorily require a minimum of two-third members to separate from their political party and merge with another.
    • The Speaker’s observations: The Speaker’s concern for preservation of inner-party dissent is laudable, but the observation that it is in the nature of politics for leaders to form new alliances and break into new forms raises concern about the effectiveness of the anti-defection law.
    The issue of inner-party democracy:

    • The issue of inner-party democracy in India underscores the lack of democratic processes within political parties, leading to challenges like dynastic politics, nepotism, and ineffective candidate selection.
    • Presently, there is no statutory backing for internal democratic regulation of political parties in India and the only governing provision is under Section 29A of the Representation of the Peoples’ Act, 1951 which entails registration of political parties with the Election Commission of India.
    • Reports from the 2nd ARC, the National Commission to Review the Working of the Constitution and the Law Commission have both recommended introducing statutes to enforce internal democracy for political parties.

     Way Forward:

    • Need for Robust democratic structures: The 255th Report of the Law Commission of India proposed amendments to the Representation of the People Act, 1951 which could mandate that besides having a constitution, political parties elect an executive committee (for the party), select candidates who are to contest elections to Parliament or State Assemblies, and conduct regular elections within the party at every level.
    • Need for Statutory regulation: The Law Commission also proposed granting the Election Commission of India the powers to impose monetary penalties or withdraw the registration of a political party in case it failed to comply.

    BACK2BASICS

    About Anti-Defection Law in India:

    • The Anti-Defection Law in India, introduced in 1985 through the Tenth Schedule of the 52nd Amendment to the Constitution, aims to limit political defections and ensure democratic stability by curbing unethical practices.
    • This law prohibits elected representatives from defecting to another party after being elected, thereby promoting party discipline and preventing opportunistic defections that can destabilize governments.
    • Despite its significance, there have been calls for reforming the anti-defection law to address challenges and ensure its effectiveness in maintaining the integrity of the political system.
    Mains:

    1) “The Indian party system is passing through a phase of transition which looks to be full of contradictions and paradoxes.” Discuss. [UPSC CSE 2016]

    Prelims:

    1) Which one of the following Schedules of the Constitution of India contains provisions regarding anti-defection? [UPSC CSE 2014]

    a) Second Schedule

    b) Fifth Schedule

    c) Eighth Schedule

    d) Tenth Schedule

  • SC ends Immunity for Legislators taking Bribes

    In the news

    • A seven-judge Constitution Bench of the Supreme Court, headed by Chief Justice of India DY Chandrachud, delivered a significant judgment regarding parliamentary privilege and criminal prosecution.
    • The verdict overturned a 1998 ruling in PV Narasimha Rao Case that granted immunity to lawmakers accepting bribes if they subsequently voted or spoke in the House

    Also read:

    Legislators Immunity against Criminal Prosecution

    What are Parliamentary Privileges?

    Details
    Definition Special rights, immunities, and exemptions enjoyed by Parliament, its committees, and members.

    Defined in Article 105 of the Indian Constitution.
    Scope Applies to Parliament, committees, and members.
    Freedom of Speech Guaranteed under Article 105(1).

    Subject to rules and procedures of Parliament (Article 118).
    Limitations to Free Speech Speech must comply with constitutional provisions.

    Cannot discuss judges’ conduct (Article 121), except for motions for their removal.
    Freedom from Arrest Immunity from arrest in civil cases 40 days before and after sessions.

    House permission needed for arrest within Parliament limits.
    Notification of Arrest Chairman/Speaker must be informed of any member’s arrest.
    Right to Prohibit Publication No liability for publishing reports, discussions under member’s authority (Article 105(2)).
    Right to Exclude Strangers Members have power to exclude non-members from proceedings.

     

    Immunity against Bribe: Constitutional Provisions Examined

    • Article 105(2): This article grants immunity to members of Parliament from court proceedings concerning their actions (speech or votes) in Parliament.
    • Article 194(2): Similarly, this article extends immunity to members of state assemblies.

    Court’s Review and Interpretation

    • PV Narasimha Rao Case: In 1998, the Supreme Court ruled with a 3:2 majority that MPs and MLAs were immune from prosecution in bribery cases as long as they fulfilled their end of the bargain.
    • Judicial Scrutiny of Privilege: The Court revisited the interpretation of Articles 105(2) and 194(2), challenging the traditional understanding of absolute immunity for lawmakers.
    • Historical Context: It noted that India’s parliamentary privileges stem from statutory and constitutional sources, unlike the UK’s House of Commons, which has ancient and undoubted rights.

    Key Findings and Interpretations

    • Necessity Test Applied: The Court applied a “necessity test” to determine the legitimacy of claims to parliamentary privilege, emphasizing that accepting bribes cannot be deemed necessary for lawmakers to discharge their duties.
    • Emphasis on Probity: The ruling underscored the importance of probity in public life, highlighting the corrosive impact of corruption on democratic ideals.
    • Interpretation of Offense: It clarified that the act of accepting a bribe constitutes an offense, regardless of subsequent actions by the lawmaker in the House.

    Conclusion

    • The Supreme Court’s ruling represents a significant departure from past precedent, affirming the principle that no individual, including legislators, is above the law.
    • By asserting the judiciary’s role in scrutinizing claims of parliamentary privilege, the Court reaffirmed the primacy of constitutional values and accountability in governance.
    • This landmark judgment underscores the judiciary’s commitment to upholding the rule of law and combating corruption, thereby bolstering India’s democratic foundations.

  • India’s Bail System: Challenges and Prospects

    bail

    In the news

    • India’s bail system faces significant challenges, resulting in a large number of undertrials remaining in prison despite being granted bail.
    • The complexities of complying with bail conditions, especially for marginalized individuals, exacerbate the situation.

    Bail Provisions in India

    Description
    What is Bail? The conditional release of a defendant with the promise to appear in court when required. It also refers to the security deposit to secure the release of the accused.
    Types of Bail in India
    • Regular bail: Granted to a person in police custody, applied for under section 437 and 439 of CrPC.
    • Interim bail: Short-term bail granted before the hearing for regular or anticipatory bail.
    • Anticipatory bail: Granted under section 438 of CrPC by session court or High Court, to avoid potential arrest for a non-bailable offense.
    Case in Bailable Offences Section 436 states that accused of a bailable offence under IPC can be granted bail if:

    1. There’s reason to believe the accused didn’t commit the offence.
    2. There’s need for further inquiry.
    3. Accused isn’t charged with an offence punishable by death, life imprisonment, or up to 10 years’ imprisonment.
    Bail for Non-Bailable Offences Section 437 states that accused doesn’t have the right to apply for bail. Bail may be granted if:

    1. Accused is a woman or child.
    2. Lack of evidence.
    3. Delay in lodging FIR.
    4. Accused is gravely sick.

    Understanding the Crisis in Bail System

    • Overrepresentation of Undertrials: Over 75% of India’s prison population comprises undertrials, reflecting systemic inefficiencies in the bail system.
    • Judicial Reluctance: Chief Justice of India D.Y. Chandrachud highlighted a growing reluctance among trial judges to grant bail, leading to a situation where incarceration becomes the norm.
    • Bail Backlog: The backlog of bail applications further exacerbates the problem, prolonging the detention of undertrials awaiting trial.

    Judicial Acknowledgment and Guidelines

    • Supreme Court’s Observations: The Supreme Court acknowledged the ineffectiveness of India’s bail system in the case of Satender Kumar Antil vs CBI, emphasizing the principle of ‘bail not jail’.
    • Need for Legislative Action: The Court urged the enactment of separate legislation and laid down comprehensive guidelines to streamline bail procedures.
    • Delayed Disposal of Applications: Despite court directives, delays in the disposal of bail applications contribute to prolonged detention of undertrials.

    Empirical Assessment and Policy Reforms

    • Lack of Empirical Evidence: The absence of empirical data hampers efforts to understand the bail system’s challenges comprehensively.
    • Socio-economic Barriers: Bail laws disproportionately burden marginalized individuals, necessitating reforms based on a realistic assessment of the problem.
    • No Data-driven Reform: Policymakers should prioritize empirical research to inform evidence-based policy reforms aimed at addressing systemic inequalities.

    Safeguards and Adjudication Practices

    • Arrest Safeguards: Existing safeguards against arbitrary arrest often exclude vulnerable populations, contributing to the high proportion of undertrials.
    • Discretionary Adjudication: Courts exercise discretion in granting bail, but guidelines lack clarity on how socioeconomic factors influence bail decisions.
    • Recording Reasons for Bail Denial: Courts should be mandated to record detailed reasons for denying bail, promoting transparency and accountability in the adjudication process.

    Bail Compliance Challenges

    • Financial Hurdles: Many undertrials struggle to comply with bail conditions due to financial constraints and lack of local sureties.
    • Structural Disadvantages: Factors like lack of residence proof and family support further hinder undertrials’ ability to comply with bail conditions.
    • Support Mechanisms: Establishing support mechanisms to assist undertrials in navigating the bail process and fulfilling conditions can alleviate compliance challenges.

    Why bail needs reform?

    • Indiscriminate arrests: Of this category of prisoners, majority may not even be required to be arrested despite registration of a cognizable offense, being charged with offenses punishable for seven years or less.
    • Disadvantageous for some sections: They are not only poor and illiterate but also would include women. Thus, there is a culture of offense being inherited by many of them.
    • Colonial legacy: Theoretically, the court also linked the idea of indiscriminate arrests to magistrates ignoring the rule of “bail, not jail” to a colonial mindset.

    Way forward

    • No Flawed Assumptions: The current bail system operates on flawed assumptions about the accused’s socio-economic status, rendering ‘bail not jail’ meaningless for many.
    • Call for Bail Reform: Meaningful bail reform necessitates a reevaluation of these assumptions and a data-driven approach to diagnose systemic issues.
    • Holistic Approach: Reform efforts should adopt a holistic approach, addressing both procedural inadequacies and socio-economic barriers to ensure equitable access to bail.

    Conclusion

    • India’s bail system stands at a critical juncture, with an urgent need for reform to address systemic inefficiencies and ensure justice for all.
    • Empirical research, legislative action, and judicial scrutiny are essential components of a comprehensive reform agenda.

    Try this PYQ from CSE Prelims 2021:

    With reference to India, consider the following statements:

    1. Judicial custody means and accused is in the custody of the concerned magistrate and such accused is locked up in a police station, not in jail.
    2. During judicial custody, the police officer in charge of the case is not allowed to interrogate the suspect without the approval of the court.

    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

    [wpdiscuz-feedback id=”wwodi0ynqz” question=”Please leave a feedback on this” opened=”1″]Post your responses here.[/wpdiscuz-feedback]

  • Punjab-Himachal dispute over the Shanan Hydropower Project

    Shanan Hydropower Project

    In the news

    • A longstanding dispute between Punjab and Himachal Pradesh over the ownership of the Shanan hydropower project has escalated, leading to legal intervention by both parties.
    • As the 99-year-old lease of the project expired on March 2, the Centre has issued orders to maintain status quo until a final decision is reached.

    Shanan Hydropower Project and the Dispute

    • Location: It is located on the Uhl River, a tributary of the Beas River, in Mandi district, Himachal Pradesh, India.
    • British-era Lease: The 110-MW Shanan hydel project was leased to Punjab in 1925 by the then-ruler of Mandi, Raja Joginder Bahadur, under a 99-year lease agreement.
    • Competing Claims: Himachal Pradesh contends that the project should revert to its control upon the expiry of the lease, citing historical and legal grounds for its claim.
    • Economic Significance: The project has significant economic implications for both states, contributing to their power generation capacities and regional development.

    Punjab’s Claims over the Project

    • Historical Ownership: The project historically supplied power to undivided Punjab and Delhi before Independence, and it was allocated to Punjab during the reorganization of states in 1966.
    • Legal Basis: Punjab asserts its legal control over the project under the provisions of the Punjab Reorganisation Act, 1966, reinforced by a central notification issued in 1967.
    • Utilization of Resources: Punjab argues that it has invested in the maintenance and operation of the project, making it a vital component of its energy infrastructure.

    Legal Proceedings and Centre’s Intervention

    • Supreme Court Petition: Punjab has filed a suit in the Supreme Court, seeking a permanent injunction against Himachal Pradesh from disturbing its lawful possession of the project.
    • Interim Status Quo Order: The Centre, invoking its powers under relevant laws, has ordered the status quo on the project’s functioning until a final decision is made, emphasizing the public interest in maintaining stability.
    • Legal Interpretation: The interpretation of historical agreements and legislative acts will be pivotal in determining the rightful ownership of the project.

    Implications and Future Course of Action

    • Interim Measure: The Centre’s order is an interim measure to prevent disruption in the functioning of the Shanan Power House until the dispute is resolved.
    • Legal Framework: Both parties are expected to proceed further within the legal framework to settle the dispute, ensuring adherence to due process and fairness.
    • Regional Cooperation: A collaborative approach between Punjab and Himachal Pradesh, facilitated by federal authorities, could lead to a mutually beneficial resolution and promote inter-state harmony.

  • Legislators Immunity against Criminal Prosecution

    In the news

    • The Supreme Court is set to decide if legislators (MPs and MLAs) enjoy immunity from bribery charges in connection with votes made in Parliament and Legislative Assemblies.

    Legislators Immunity: Background and Context

    • Constitutional Provisions: Articles 194(2) (for MLAs) and 105(2) (MPs) of the Constitution grant legislators immunity from legal proceedings concerning their speeches and votes in Parliament and Legislative Assemblies.
    • P.V. Narasimha Case: In 1998, the Supreme Court upheld this immunity in the case of P.V. Narasimha Rao v State (CBI/SPE), ruling that legislators are shielded from criminal prosecution for bribery linked to their parliamentary actions.

    Reasons for Reconsideration

    • Sita Soren’s Case: The appeal by JMM MLA Sita Soren, accused of accepting bribes during Rajya Sabha elections, prompted a reevaluation of the Narasimha verdict.
    • Interpretation Issues: Concerns were raised about the broad interpretation of immunity and its implications for combating bribery in legislative bodies.

    Arguments Supporting Immunity

    • Absolute Protection: Advocates contend that legislators enjoy complete immunity from legal action under constitutional provisions. They argue that the Speaker holds authority to address moral infractions through expulsion.
    • Interpretation of Articles: The dissenting opinion in Narasimha sought to narrow the scope of immunity, but proponents stress adherence to the literal interpretation of constitutional language.

    Arguments against

    • Completion of Offence: Critics argue that the offence of bribery is consummated upon acceptance of the bribe, irrespective of subsequent actions. They advocate holding legislators accountable from the moment the bribe is accepted.
    • Legitimate Legislative Actions: Distinguishing between legitimate and illegitimate actions, advocates assert that actions stemming from criminal conduct, such as vote-buying, should not be shielded by immunity.

    Legal Interpretation and Statutory Compliance

    • Prevention of Corruption Act, 1988: Critics highlight inconsistencies between the Narasimha ruling and the provisions of the PCA, emphasizing the need for alignment with anti-corruption legislation.
    • Intent and Performance: Solicitor General Mehta underscored the disconnect between the Narasimha verdict and the intent of the Prevention of Corruption Act, particularly regarding the timing of criminal liability.

    P.V. Narasimha Case (1998) Analogy

    Judgement protects bribe-takers after there is “performance” (a speech or vote is given based on the bribe), even though Section 7 of the PCA specifically punishes public servants who accept bribes “to” or “as a reward for” performing their public duty improperly or dishonestly.

    Way Forward

    • Balancing Integrity and Immunity: The court’s ruling will determine the delicate balance between upholding legislative immunity and ensuring accountability for criminal acts.
    • Interpretative Scrutiny: A nuanced interpretation of constitutional provisions is essential to address the evolving complexities of legislative conduct and accountability.

    Conclusion

    • The Supreme Court’s forthcoming decision on legislators’ immunity from bribery charges holds significant ramifications for India’s legal landscape.
    • Balancing constitutional provisions, legislative intent, and anti-corruption imperatives, the court’s ruling will shape the accountability framework for lawmakers and the integrity of the legislative process.