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Subject: Polity

  • Delhi Governance New Ordinance

    ordinance

    Central Idea

    • The central government issued an Ordinance on May 19, overturning a unanimous Supreme Court verdict.
    • The Ordinance grants the Lieutenant Governor of Delhi authority over services, challenging the elected government’s control over officials’ transfer and posting.
    • This raises constitutional concerns about the balance of power between the elected government and the Lieutenant Governor.

    Issues with this ordinance

    • The Ordinance bestowed power over services to the Lieutenant Governor of Delhi.
    • It established the “National Capital Civil Service Authority,” consisting of the Chief Minister and two senior IAS officials, to decide matters by majority vote.
    • This provision potentially allows the elected Chief Minister’s viewpoint to be overruled.

    Key issues with the current model of Governance of Delhi

    • Undermining the elected government: The LG, who will be the government, is under no obligation to implement any law passed by the assembly or carry out the directions of the house as he is not responsible to the assembly.
    • Lack of Executive Accountability: The Lieutenant Governor, who is the head of government, is not accountable to the assembly, which undermines the principle of executive accountability.
    • Against the privilege of legislature: Framing the rules to conduct its proceedings is thus a part of the privilege each house of a legislature enjoys.
    • Delay in decision-making: The requirement for LG’s approval for many decisions has led to delays in decision-making, which has impacted the development and governance of the city.
    • Accountability issues: The division of responsibilities between the elected government and the Lieutenant Governor has led to difficulties in fixing responsibility for actions and decisions.
    • Against Co-operative Federalism: The Act not only negates cooperative federalism but also upturns the fundamental principles laid down by the Supreme Court in Government of NCT Delhi vs Union of India case (2018).
    • Control over Services Department: Governance has always been a contentious issue since Delhi is not a full state and the Services department comes under the L-G.

    What is Ordinance?

    • Under Article 123 of the Constitution, the President possesses law-making powers through the issuance of ordinances during the recess of Parliament.
    • Article 213 grants the Governor of a state the authority to issue ordinances when the state legislative assembly or either of the two Houses (in states with bicameral legislatures) is not in session.
    • However, there are limitations to this authority:
    1. Issuance during Recess: The President can only promulgate an ordinance when one or both Houses of Parliament are not in session.
    2. Immediate Action: An ordinance can only be issued when the President deems it necessary for immediate action.
    3. Justiciability: The President’s intentions to issue ordinances can be subject to judicial review if mala fide intentions are proven.

    Features of Ordinances

    Several characteristics and provisions are associated with ordinances:

    • Retrospective Effect: An ordinance can have a retrospective application, meaning it can be enacted prior to its approval.
    • Nullity during Parliamentary Session: An ordinance issued while Parliament is in session is considered null and void.
    • Time Limit for Approval: An ordinance must be approved by Parliament within six weeks of its reassembly. Failure to do so leads to its expiration.
    • Continuation of Acts and Laws: Acts, laws, and events resulting from the ordinance remain in effect until its expiration.
    • Limits on Legislative Authority: Ordinances can only be passed on subjects within the legislative competence of the Indian Parliament.
    • Protection of Fundamental Rights: Ordinances cannot be used to revoke the fundamental rights guaranteed by the Indian Constitution. Their enforcement would render them null and void if both Houses pass a resolution opposing them.

    Issues with the Ordinances

    The use of ordinances has raised concerns regarding their potential misuse and circumvention of democratic processes. Some key concerns are:

    • Bypassing the Legislature: Deliberate bypassing of the legislature to avoid debate and deliberation on contentious legislative proposals undermines democratic principles.
    • Repromulgation of Ordinances: Repromulgation without placing the ordinance before the legislature subverts democratic legislative processes and the separation of powers.
    • Presidential Satisfaction: The satisfaction of the President as a requirement for issuing an ordinance provides scope for potential misuse.
    • Ignoring Supreme Court’s Judgments: Instances of ordinances being promulgated despite Supreme Court judgments highlighting their conditional and exceptional nature raise concerns about adherence to constitutional principles.

    Judicial Safeguards to avoid re-promulgation of ordinances

    1. Supreme Court in RC Cooper vs. Union of India (1970) held that the President’s decision to promulgate ordinance could be challenged on the grounds that ‘immediate action’ was not required, and the ordinance had been issued primarily to bypass debate and discussion in the legislature.
    2. It was argued in DC Wadhwa vs. the State of Bihar (1987) that the legislative power of the executive to promulgate ordinances is to be used in exceptional circumstances and not as a substitute for the law-making power of the legislature.
    3. Supreme Court in Krishna Kumar Singh v. the State of Bihar held that the authority to issue ordinances is not an absolute entrustment, but is “conditional upon satisfaction that circumstances exist rendering it necessary to take immediate action”.

    Way ahead

    • Every ordinance issued must be laid before both the Houses of Parliament or state legislature within six weeks from the reassembly of Parliament or state legislature and it ceases to exist if it is not approved within six weeks of reassembly.
    • 44th Constitutional Amendment has reiterated that the satisfaction of the President to promulgate ordinance could be challenged in case an ‘immediate action’ was not required.
    • Our Constitution has provided for the separation of powers among the legislature, executive and judiciary where enacting laws is the function of the legislature.
    • The executive must show self-restraint and should use ordinance making power only in unforeseen or urgent matters and not to evade legislative scrutiny and debates.

    Conclusion

    • The recent Ordinance and its constitutional implications highlight the need for a balanced distribution of powers between the elected government and the Lieutenant Governor in Delhi.
    • It is essential to uphold democratic principles and ensure that legislative functions are carried out by the appropriate constitutional authorities.
    • A comprehensive review of the governance framework in Delhi may be necessary to address these concerns and ensure effective and harmonious governance in the capital city.

     

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  • In news: Krishna Water Dispute

    krishna

    Central Idea

    • The dispute over the water share of the Krishna River between Andhra Pradesh (AP) and Telangana has remained unresolved for nine years since the bifurcation of the combined state.

    About Krishna River

    Explanation
    Origin Mahabaleshwar, Maharashtra
    Length Approximately 1,400 km
    States swept Maharashtra, Karnataka, Telangana, Andhra Pradesh
    Tributaries Tungabhadra, Bhima, Ghataprabha, Malaprabha, Musi
    Significance Irrigation, hydropower, drinking water
    Basin Approximately 2,59,000 sq km
    Dams Srisailam, Nagarjuna Sagar, Almatti, Koyna
    Delta Forms fertile delta in Bay of Bengal

     

    What is Krishna Water Dispute?

    • The dispute dates back to the formation of AP in November 1956.
    • Before the formation of AP, a Gentlemen’s Agreement was signed in February 1956 by four senior leaders from different regions of Andhra.
    • The agreement aimed to protect Telangana’s interests and ensure equitable distribution of water resources based on global treaties.
    • However, the focus on irrigation facilities favored Andhra, which had existing systems developed by the British at the expense of drought-prone areas in Telangana.

    Resolution achieved till now

    (1) Bachawat tribunal

    • In 1969, the Bachawat Tribunal (KWDT-I) was established to settle the water share dispute among Maharashtra, Karnataka, and AP (before bifurcation).
    • The Tribunal allocated 811 tmcft (thousand million cubic feet) of dependable water to AP.
    • The water was later divided in a 512:299 tmcft ratio between Andhra and Telangana, respectively, based on the command area developed by each region.
    • The Tribunal recommended diverting water from the Tungabhadra Dam to the drought-prone Mahabubnagar area of Telangana, but this recommendation was not implemented, leading to discontent.

    (2) Water-sharing arrangement after bifurcation

    • The AP Reorganisation Act, 2014, did not mention water shares, as the KWDT-I Award was still in force and had not specified region-wise allocations.
    • In 2015, the two states agreed to an ad hoc arrangement of sharing water in a 34:66 ratio (Telangana: Andhra) during a meeting convened by the Ministry of Water Resources.
    • The arrangement was supposed to be reviewed annually.
    • The Act focused on the establishment of the Krishna River Management Board (KRMB) and the Godavari River Management Board (GRMB) for water resource management.

    Claims by each state

    • Telangana argues that it is entitled to a minimum of 70% share in the allocation of the 811 tmcft based on global practices and basin parameters.
    • Telangana highlights how AP diverts around 300 tmcft of water from within the basin, affecting drought-prone areas in Telangana.
    • AP also claims a higher share of water to protect the interests of already developed command areas.

    Centre’s position

    • The Centre convened two meetings of the Apex Council in 2016 and 2020, involving the Union Minister and Chief Ministers of Telangana and AP, but no substantial progress was made.
    • In 2020, following a suggestion by the Ministry of Jal Shakti (MoJS), Telangana withdrew its petition from the Supreme Court with the assurance that the matter would be referred to a Tribunal.
    • However, the Centre has not taken any action on the issue for over two years, while the two states continue to engage in ongoing disputes.

    Way Forward

    Considering the prolonged dispute and the failure to reach a resolution, it is crucial for all stakeholders to take proactive steps. The following measures could be considered:

    • Mediation: Appoint an independent body or mediator to facilitate negotiations between the two states and assist in finding a fair and mutually agreeable solution.
    • Scientific assessment: Conduct a comprehensive scientific assessment of the basin parameters, water requirements, and the impact of existing water utilization practices to inform the allocation of water shares.
    • Public awareness: Raise public awareness about the importance of water conservation, efficient utilization, and sustainable practices to reduce the overall demand for water resources.
    • Implementation of recommendations: Act upon the recommendations of previous tribunals and committees to ensure equitable distribution of water resources and address the grievances of both states.
    • More deliberations: Foster a spirit of cooperation and collaboration between AP and Telangana to jointly manage and sustainably utilize the Krishna River water resources for the benefit of both regions.

    It is crucial for the central government to play an active role in facilitating dialogue, providing necessary support, and expediting the resolution process to ensure a fair and just outcome for all parties involved.

     

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  • Freedom of Speech the ‘Bulwark’ of Democracy: Andhra HC

    Central Idea: The Andhra Pradesh High Court has overturned a Government Order (GO) issued by the state government that aimed to regulate public meetings, processions, and assemblies on roads.

    Key takeaways of the ruling

    • The court held that the right to assemble, protest peacefully, and express one’s opinion freely was a precious freedom.
    • It emphasized that this freedom should not be curtailed based on unproven assertions made by government officials.
    • The court reiterated that freedom of speech was considered the foremost among liberties and was crucial for democracy.
    • It stated that such a precious freedom should not be left to the unrestricted discretion of any individual.

    AP move regulating Public Assembly

    • The GO sought to regulate public meetings and assemblies on roads, roadsides, and margins.
    • The state government argued that the regulations were necessary to address fatal accidents and ensure smooth traffic flow.
    • Sections 30, 30A, and 31 of the Police Act, 1861 were cited as the basis for the directions under the GO.

    High Court’s decision and reasoning

    • The court set aside the GO, ruling that it imposed a ban on all meetings on public highways and roads.
    • It stated that accidents or incidents at specific locations should not result in a total restriction on the right to assemble or conduct processions on other roads.
    • The court suggested studying the causes of incidents and issuing guidelines to prevent their recurrence rather than imposing broad restrictions.

    Upholding the Right to Assembly

    • The court asserted that the right to assemble, protest peacefully, and express opinions freely is a fundamental freedom that cannot be curtailed arbitrarily.
    • Freedom of speech is regarded as a crucial pillar of democracy and must not be subject to unfettered discretion.
    • The court deemed the power conferred by the GO as excessive, arbitrary, and failing the test of proportionality.

    Reference: 2018 SC Ruling on Peaceful Assembly

    • The court referred to the guidelines laid down in the Supreme Court’s ruling in “Mazdoor Kisan Shakti Sangathan v Union of India (2018).”
    • The guidelines regulate protests and demonstrations, recognizing the right to peaceful assembly while allowing reasonable restrictions.
    • The ruling includes provisions on the number of participants, minimum distances from important locations, and restrictions during visits by foreign dignitaries.

    Back2Basics: Right to Assemble

    • The right to assemble in India refers to the fundamental right guaranteed under Article 19(1)(b) of the Constitution of India.
    • It grants individuals the freedom to peacefully assemble, protest, and hold public meetings or processions.
    • This right allows citizens to come together to express their views, opinions, and grievances collectively in a public setting.
    • It is an essential aspect of democracy, enabling citizens to engage in peaceful activism, raise awareness about social issues, and participate in public discourse.
    • However, reasonable restrictions can be imposed on this right in the interest of public order, morality, and the sovereignty and integrity of India.

     

     

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  • Revisiting the Anti-Defection Law: Upholding Accountability in Parliamentary Democracy

    Central idea

    • Two recent judgments by the Supreme Court of India have brought attention to the constitutional framework governing the relationship between the executive, legislature, and political parties. While the judgments were unanimous, they present a contradiction in their application. The Delhi case emphasized the importance of accountability of civil services to the elected government, while the Maharashtra case upheld the power of party leadership over legislators, undermining the principles of parliamentary democracy.

    Delhi Case: Reinforcing the Importance of Accountability

    • Importance of Accountability: The case underscores the significance of accountability in a democratic system. It reaffirms the idea that a government elected by the people must be answerable to them through a triple chain of command: civil service officers being accountable to ministers, ministers being accountable to the legislature, and the legislature being accountable to the electorate.
    • Power Distribution: The judgment clarifies the delineation of powers between the Delhi government, headed by the Chief Minister, and the Lieutenant Governor appointed by the central government. It establishes that in matters concerning civil services, the elected government of Delhi should have control and authority, emphasizing the democratic principle of decentralization of power.
    • Constitutional Provisions and Democratic Values: The case highlights the significance of adhering to the constitutional provisions and demarcation of powers in a Union Territory like Delhi. It upholds the principles of parliamentary democracy, emphasizing the importance of a government accountable to the people it serves.
    • Strengthening Democratic Institutions: The judgment emphasizes the role of institutions in upholding democratic values enshrined in the Constitution. By safeguarding accountability and appropriately allocating powers, it sets a precedent for future cases and reinforces the role of institutions in maintaining a robust democratic system.

    What is triple chain of accountability?

    1. Civil Service Officers to Ministers: The first link in the chain is the accountability of civil service officers to the Ministers. Civil service officers are responsible for implementing government policies and carrying out administrative tasks. They are answerable to the Ministers who oversee their work and provide directions.
    2. Ministers to the Legislature: The second link in the chain is the accountability of Ministers to the legislature. Ministers are accountable for their decisions, actions, and policies to the legislature, which represents the voice of the people. They are expected to participate in debates, answer questions, present bills, and seek approval or support for government initiatives from the elected representatives.
    3. Legislature to the Electorate: The third link in the chain is the accountability of the legislature to the electorate. The elected representatives in the legislature are accountable to the people who have chosen them through the electoral process. Legislators are expected to represent the interests and concerns of their constituents, work towards their welfare, and ensure that their voices are heard in the decision-making process.

    Maharashtra Case: Undermining the Triple Chain of Accountability

    • Interpretation of the Tenth Schedule: The case revolves around the interpretation and application of the Tenth Schedule of the Constitution, which deals with the anti-defection law. The judgment focuses on the distinction between the legislature party and the political party, clarifying the power to issue binding directions to members of the legislature.
    • Role of Party Leadership: The judgment reinforces the authority of the political party leadership over the legislature. It establishes that the person in charge of the political party holds the power to issue directions to the members of the party, including MLAs/MPs, and failure to comply can result in disqualification.
    • Limitation on Legislators’ Accountability: The judgment raises concerns regarding the accountability of legislators to their voters. By upholding the authority of the political party leadership, it potentially weakens the accountability of legislators to the electorate and emphasizes their accountability solely to the party that fielded them in the election.
    • Triple Chain of Accountability: The judgment diverges from the principles outlined in the Delhi case concerning the triple chain of accountability. It suggests that legislators should adhere to the directions of the political party, potentially undermining the daily assessment of the government by the legislature and diluting the accountability of the government to the people.
    • Need for Re-evaluation: The judgment indicates the need for re-evaluating the anti-defection law and its compatibility with the principles of parliamentary democracy. It raises questions about the anti-defection law violating the basic structure of the Constitution, calling for a larger bench to examine this issue.

    Facts for prelims: Basics

    Anti-defection Law

    • The Anti-Defection Law under the Tenth Schedule of the Constitution punishes MPs/ MLAs for defecting from their party by taking away their membership of the legislature.
    • It gives the Speaker of the legislature the power to decide the outcome of defection proceedings.
    • It was added to the Constitution through the Fifty-Second (Amendment) Act, 1985 when Rajiv Gandhi was PM. The law applies to both Parliament and state assemblies.

    Contradictory Conclusions: The Problem of the Anti-Defection Law

    • The contradictory conclusions arising from the application of the anti-defection law in both the cases:
    • Constitutional Position: While the Delhi case emphasizes the accountability of civil services to the Delhi government and upholds the triple chain of command, the Maharashtra case highlights the power of the political party leadership over legislators, as dictated by the Tenth Schedule.
    • Incompatibility with Parliamentary Democracy: The Maharashtra case raises concerns about the anti-defection law, which is at the core of the Tenth Schedule, and its compatibility with the structure underlying parliamentary democracy. The anti-defection law’s assumption that any vote against the party direction is a betrayal of the electoral mandate contradicts the principle of representative democracy.
    • Legislative Accountability: The Maharashtra judgment reinforces the authority of the political party leadership, implying that legislators are primarily accountable to the party that fielded them, rather than to the electorate. This breaks the triple chain of accountability.
    • Impact on Daily Assessment: The Maharashtra judgment’s emphasis on party directions limits the daily assessment of the government by the legislature. If legislators of the party with a majority are bound by party directions, it undermines the meaningfulness of debates, resolutions, and no-confidence motions, as the party leadership controls the votes on every issue, ensuring the government’s victory.
    • Electoral Mandate and Voter Decision: The anti-defection law assumes that voters prioritize party affiliation, disregarding other factors such as candidates’ criminal records, assets and liabilities, and educational qualifications. However, voters’ decisions in elections often contradict this assumption, as demonstrated by instances of legislators winning by-elections after switching parties.

    Way forward

    • Re-evaluation of the Anti-Defection Law: It is crucial to revisit the anti-defection law and assess its compatibility with the basic principles of parliamentary democracy. A thorough examination by a larger Bench of the Supreme Court can help determine if the law violates the basic structure of the Constitution.
    • Reviewing the Tenth Schedule: The Tenth Schedule, which forms the basis of the anti-defection law, should be subject to a critical review. This includes analyzing its impact on the accountability of legislators to their constituents and evaluating whether it aligns with the principles of representative democracy.
    • Strengthening Legislative Accountability: Efforts should be made to reinforce the accountability of legislators to the electorate. This can be achieved by ensuring that legislators prioritize their constituents’ interests over party directives, thereby fostering a stronger connection between legislators and the people they represent.
    • Promoting Informed Voting: Emphasizing the importance of informed voting can help voters make decisions based on factors beyond party affiliation. Providing comprehensive information about candidates, including their track records, assets and liabilities, and educational qualifications, will enable voters to make more informed choices during elections.
    • Balancing Party Discipline and Individual Freedom: Striking a balance between party discipline and individual freedom of legislators is crucial. There should be mechanisms in place that encourage healthy debate, dissent, and the ability of legislators to vote based on their own judgment, while still respecting party affiliations.
    • Enhancing Parliamentary Debates and Oversight: Efforts should be made to strengthen the role of legislatures in holding the government accountable. This can be achieved through robust parliamentary debates, effective question hour sessions, and rigorous scrutiny of government actions and policies.

    Conclusion

    • The contradiction between the Delhi and Maharashtra cases underscores the need to revisit the anti-defection law. A larger Bench should re-examine the law’s compatibility with the basic structure of the Constitution, reaffirming the centrality of accountability in parliamentary democracy. This step is crucial to restore the balance between party loyalty and the representatives’ duty to serve their constituents and uphold democratic values.

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    Also read:

    [Burning Issue] Shiv Sena Party Symbol Conundrum

     

  • In news: Sikkim Statehood Day

    sikkim

    Sikkim Statehood Day

    • Sikkim day is annually celebrated on May 16, commemorating the integration of Sikkim with India in 1975.
    • The process of Sikkim joining India occurred about two decades after Sardar Vallabbhai Patel led the integration of princely states into India.

    Sikkim’s History with the Chogyal Royals

    • The kingdom of Sikkim was established in 1642 when Phuntsong Namgyal was consecrated as the first ruler or Chogyal.
    • Sikkim’s monarchy, under the Namgyal dynasty, lasted for 333 years until its integration with India in 1975.
    • Sikkim had a Tibetan origin and was located between India and China. It often faced conflicts over land with Bhutan and Nepal.
    • The British saw Sikkim as a buffer state and established a formal relationship with it.
    • Various treaties like the Treaty of Tumlong (1861), Treaty of Titaliya (1817), Calcutta Convention (1890), and Lhasa Convention (1904) shaped the relationship between Sikkim and the British.

    Independent India and Sikkim

    • After India’s independence, princely states had the option to accede to India or Pakistan.
    • Sikkim’s unique relationship with British rule led to complexities in its integration with India.
    • Sardar Vallabbhai Patel and BN Rau wanted Sikkim to sign the Instrument of Accession to integrate it with India.
    • Jawaharlal Nehru acknowledged the situation in Sikkim and emphasized its autonomous growth.
    • Sikkim State Congress (SSC), Praja Mandal (PM), and Praja Sudharak Samaj (PSS) demanded a popular government, abolition of landlordism, and accession to India.
    • A Standstill Agreement was signed to maintain the existing arrangement while discussions continued.

    War with China

    • Sikkim had a state council with elected and nominated members.
    • Political developments in the 1960s and 1970s played a significant role in Sikkim’s status.
    • The formation of the Sikkim National Congress (SNC) in 1960 and changes in political leadership on both sides influenced the course of events.
    • India-China war of 1962 and containment of border skirmishes made it important to clarify the relationship between India and Sikkim.

    How Sikkim finally joined India?

    • The Indian leadership started supporting pro-democracy forces in Sikkim, such as Kazi Dorji of the SNC.
    • Protests in Sikkim in 1973 led to a tripartite agreement between the Chogyal, the Indian government, and three major political parties.
    • Elections were held in 1974, and a new constitution limited the role of the monarch.
    • A referendum held in 1975 resulted in a majority vote in favor of joining India.
    • The Constitution (Thirty-Sixth Amendment) Bill was passed, recognizing Sikkim as a state in the Union of India.
    • Sikkim’s new parliament proposed a bill for Sikkim to become an Indian state, which was accepted by the Indian government.

     

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  • Supreme Court guideline for granting Bail

    bail

    Central Idea: The Supreme Court emphasized that orders in bail cases should adhere to the constitutional principle of personal liberty.

    Supreme Court on Bail

    • Short debates: Prolonged debates on bail may prejudice the accused in their case.
    • Upholding liberty: Delays in pronouncing bail decisions impinge on the personal liberty of the undertrial.
    • No extensive discussions and elaborations: The Supreme Court highlights the significance of brevity (state of being brief, concise) in bail orders.
    • No early delving into case details: Long orders may unnecessarily delve into the details of the case, which is not appropriate at the bail stage.
    • Ensuring fairness and impartiality: Such brevity ensures that the case is not unduly influenced or prejudiced during the bail proceedings.
    • Promptness in pronouncing bail decisions: The Court emphasized the need for prompt pronouncement of bail decisions. Every day of waiting affects the personal liberty of the undertrial.

    What is Bail?

    • Bail is the conditional release of a defendant with the promise to appear in court when required.
    • The term also means the security that is deposited in order to secure the release of the accused.

    Types of Bail in India

    • Depending upon the sage of the criminal matter, there are commonly three types of bail in India:
    1. Regular bail: Regular bail is generally granted to a person who has been arrested or is in police custody. A bail application can be filed for the regular bail under section 437 and 439 of CrPC.
    2. Interim bail: This type of bail is granted for a short period of time and it is granted before the hearing for the grant of regular bail or anticipatory bail.
    3. Anticipatory bail: Anticipatory bail is granted under section 438 of CrPC either by session court or High Court. An application for the grant of anticipatory bail can be filed by the person who discerns that he may be arrested by the police for a non-bailable offense.

    Conditions for Grant of Bail in Bailable Offences

    • Section 436 of the Code of Criminal Procedure, 1973, lays down that a person accused of a bailable offence under IPC can be granted bail if:
    1. There are sufficient reasons to believe that the accused has not committed the offence.
    2. There is sufficient reason to conduct a further inquiry in the matter.
    3. The person is not accused of any offence punishable with death, life imprisonment or imprisonment up to 10 years.

    Conditions for Grant of Bail in Non-Bailable Offences

    • Section 437 of Code of Criminal Procedure, 1973 lays down that the accused does not have the right to apply for bail in non-bailable offences.
    • It is discretion of the court to grant bail in case of non-bailable offences if:
    1. The accused is a woman or a child, bail can be granted in a non-bailable offence.
    2. There is a lack of evidence then bail in non-Bailable offenses can be granted.
    3. There is a delay in lodging FIR by the complainant, bail may be granted.
    4. The accused is gravely sick.

    Why bail needs reform?

    • Huge pendency of undertrials: Referring to the state of jails in the country, where over two-thirds lodged are undertrials,
    • 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.

    What is the law on bail?

    • The CrPC does not define the word bail but only categories offences under the Indian Penal Code as ‘bailable’ and ‘non-bailable’.
    • The CrPC empowers magistrates to grant bail for bailable offences as a matter of right.
    • This would involve release on furnishing a bail bond, without or without security.

    Way forward

    • Bail Law would certainly take care of not only the unwarranted arrests but also the clogging of bail applications before various courts.
    • With restrictive bail conditions and a conservative view on bail, we may forget the meaning of personal liberty, which is the greatest of human freedoms enjoyed in India.

     

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  • Key Takeaways of SC’s Maharashtra Verdict

    The Supreme Court issued a unanimous judgment on various issues related to the split in a political party in Maharashtra in June 2022.

    Key Takeaways

    Here are the key takeaways from the verdict:

    (1) Disqualification

    • MLA disqualifications upheld: The Supreme Court did not interfere with the proceedings related to the disqualification of 16 MLAs (who had gone to Dehradun) including Chief Minister.
    • Onus on Speaker: The court stated that the issue of disqualification should be decided by the Speaker of the Legislative Assembly as per established procedures in law.

    (2) Consideration of Party Constitution

    • Political party constitution: The court emphasized that while deciding disqualification pleas, the Speaker must consider the constitution of the political party, which was submitted to the Election Commission (EC) with the consent of both factions.
    • Split occurred later: The court clarified that the “split” in the party would no longer be a defense available to MLAs facing disqualification.

    (3) Governor’s Role

    • Issue over floor test circumstances: The court criticized the then Governor for calling a floor test without sufficient objective material to show that the incumbent government had lost the confidence of the House.
    • Must remain politically neutral: The court stated that the Governor should exercise their power within the limits of the law and should not enter the political arena nor interfere in intra-party disputes.

    (4) Former CM Resignation

    • Should have faced floor test: The court mentioned that erstwhile CM of tripartite government, who led one of the factions, had resigned and did not face the floor test.
    • Re-instation was possible: The court held that it could not quash a resignation submitted voluntarily, but if ex-CM had refrained from resigning, the court could have considered a remedy to reinstate his government.

    (5) Illegal Appointment of Whip

    • The court deemed the appointment of the whip by the split-led faction to be illegal.
    • The Speaker should have conducted an independent inquiry to verify the decision of the political party regarding the appointment of the whip.

    (6) Distinction between Legislature Party and Political Party

    • The court clarified that the legislature party and the political party cannot be conflated.
    • The court stated that a political party must be registered with the Election Commission, while the legislature party has independent existence to provide defense to legislators’ actions within the political party.

    (7) Concurrent Jurisdiction of Speaker and EC

    • The court rejected the contention that the Election Commission was barred from deciding on the party symbol dispute until the Speaker decided the disqualification pleas.
    • The court stated that both the Speaker and the EC can adjudicate issues concurrently.

    (8) Others

    • Nabam Rebia Case, 2016: Additionally, the court referred certain issues related to its judgment in the Nabam Rebia Case to a larger Bench.
    • Restrictions on the ousted Speaker: This included the restriction of the Speaker’s powers in issuing disqualification notices to MLAs in the presence of a notice for the Speaker’s removal.

     

     

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  • Delhi vs. Centre: Key takeaways of SC’s verdict

    Central Idea

    Key takeaways

    (1) Disagreement with Justice Bhushan’s Judgment

    • The Supreme Court stated that it does not agree with Justice Ashok Bhushan’s judgment that the Delhi government has no power over services.

    (2) Article 239A and Legislative Assembly for NCT

    • The Supreme Court highlighted that Article 239A establishes a legislative assembly for the National Capital Territory of Delhi.
    • The members of the legislative assembly are elected by the electorate of Delhi, and the interpretation of Article 239A should support representative democracy.

    (3) Limits of Power

    • The court clarified that the control over services does not extend to areas related to public order, police, and land.

    (4) Delhi Government Represents Representative Form of Government

    • According to the Supreme Court, the Delhi government, like other states, represents the representative form of government.
    • Any expansion of the central government’s power would contradict the Constitutional scheme.

    (5) Impact on Ministers’ Control

    • The court noted that if administrative services are excluded from the legislative and executive domains, ministers would be excluded from controlling civil servants responsible for implementing executive decisions.

    (6) Executive Power and Existing Law

    • The court clarified that the executive power of the state is subject to existing union laws.

    (7) Principle of Collective Responsibility

    • The Supreme Court emphasized that if officers do not report to ministers or fail to follow their instructions, the principle of collective responsibility will be affected.

    (8) Triple Chain of Accountability

    • Chief Justice of India DY Chandrachud highlighted that denying democratically elected governments the power to control officers would render the principle of the triple chain of accountability redundant.

    Back2Basics: Article 239AA

    • Article 239AA granted Special Status to Delhi among Union Territories (UTs) in the year 1991 through the 69th Constitutional Amendment.
    • It provided a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers.
    • That’s when Delhi was named as the National Capital Region (NCT) of Delhi.
    • As per this article – Public Order, Police & Land in NCT of Delhi fall within the domain and control of Central Government which shall have the power to make laws on these matters.
    • For remaining matters of State List or Concurrent List, in so far as any such matter is applicable to UTs, the Legislative Assembly shall have the power to make laws for NCT of Delhi.

     

     

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  • Exemptions under Surrogacy Law

    The govt in the Supreme Court has said that same-sex couples and live-in partners are not included in surrogacy and assisted reproduction laws to avoid ‘misuse’ and provide children a ‘complete family’.

    Government’s stance

    • Same-sex couples and live-in partners are excluded from surrogacy and assisted reproduction laws to avoid ‘misuse.’
    • The welfare of the child should be prioritized over any notions of equality among prospective parents or couples.
    • No special provisions or additional rights have been granted to same-sex couples and live-in partners despite the decriminalization of their relationships.

    Why in news?

    • The government’s perspective is not in tune with several Supreme Court judgments that long live-in relationships “presume” marriage.
    • Live-in partners are not bound by law, and the safety of the child born through surrogacy cannot be guaranteed.

    Judiciary in support

    • Same-sex couples are fighting for their right to marry and raise a family as equal parents.
    • CJI heading the Constitution Bench, has remarked that same-sex couples could offer as stable and loving a home, if not better, to children as heterosexual married parents.

    Distinct features of the Surrogacy (Regulation) Act, 2021

    • Definition of surrogacy: It defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand over the child after the birth to the intending couple.
    • Regulation of surrogacy: It prohibits commercial surrogacy, but allows altruistic surrogacy which involves no monetary compensation to the surrogate mother other than the medical expenses and insurance.
    • Purposes for which surrogacy is permitted: Surrogacy is permitted when it is: (i) for intending couples who suffer from proven infertility; (ii) altruistic; (iii) not for commercial purposes; (iv) not for producing children for sale, prostitution or other forms of exploitation; and (v) for any condition or disease specified through regulations.
    • Eligibility criteria: The intending couple should have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority ex. District Medical Board.

    Eligibility criteria for surrogate mother:

    • To obtain a certificate of eligibility from the appropriate authority, the surrogate mother has to be:
    1. A close relative of the intending couple;
    2. A married woman having a child of her own;
    3. 25 to 35 years old;
    4. A surrogate only once in her lifetime; and
    5. Possess a certificate of medical and psychological fitness for surrogacy.
    • Further, the surrogate mother cannot provide her own gametes for surrogacy.

    Basis of the Petition: Right to Reproductive Autonomy

    • The personal decision of a single person about the birth of a baby through surrogacy, i.e., the right of reproductive autonomy is a facet of the right to privacy guaranteed under Article 21 of the Constitution.
    • Thus, the right to privacy of every citizen or person affecting a decision to bear or beget a child through surrogacy cannot be taken away.

    Other issues with Surrogacy Law

    • Medical issue necessity: Married women can only avail surrogacy services if they are unable to produce a child due to medical conditions.
    • Widow/Divorced: Otherwise, for women to avail of surrogacy services, they must be aged between 35 and 45 and widowed or divorced.
    • One child obligation: Women can only offer surrogacy if they are aged between 25 and 35 and married with at least one biological child.
    • Genetic relation obligation: The laws also require a surrogate to be genetically related to the couple who intend to have a child through this method.

     

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  • Manipur Riots: CJI questions HC’s power over ST List

    Central Idea

    • The Chief Justice of India has questioned why a 23-year-old Constitution Bench judgment was not shown to the Manipur High Court, which directed the state government to consider the inclusion of Meetei/Meitei community in the Scheduled Tribe list.
    • The Chief Justice observed that a High Court does not have the power to direct changes in the Scheduled Tribes List, as it is a Presidential power to designate a Scheduled Caste or Scheduled Tribe.

    What is the Scheduled Tribes List?

    • Article 342(1) of the Constitution states that it is entirely the President’s power to designate a Scheduled Caste or Scheduled Tribe.
    • It is not open to State governments, courts, tribunals, or any other authority to modify, amend or alter the list of Scheduled Tribes specified in the notification issued under clause (1) of Article 342.
    • A notification issued under clause (1) of Article 342 can be amended only by law to be made by Parliament.

    Notable Judgements:

    (1) The State of Maharashtra vs. Milind verdict

    • The five-judge Constitution Bench in State of Maharashtra versus Milind, in November 2000, held that a notification issued under clause (1) of Article 342, specifying Scheduled Tribes, can be amended only by law to be made by Parliament.
    • Any tribe or tribal community or part of or group within any tribe can be included or excluded from the list of Scheduled Tribes only by Parliament by law and by no other authority.

    (2) FCI vs. Jagdish Balaram Bahira

    • The settled law in the Milind verdict was referred to by a July 2017 judgment authored by Justice Chandrachud for a three-judge Bench of the Supreme Court in CMD, FCI versus Jagdish Balaram Bahira to note that the Presidential Order under Article 342 regarding Scheduled Tribes was always “final”.

    Back2Basics: Scheduled Tribes

    • The term ‘Scheduled Tribes’ first appeared in the Constitution of India.
    • Article 366 (25) defined scheduled tribes as “such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this constitution”.
    • Article 342 prescribes procedures to be followed in the matter of specification of scheduled tribes.
    • Among the tribal groups, several have adapted to modern life but there are tribal groups who are more vulnerable.
    • The Dhebar Commission (1973) created a separate category “Primitive Tribal Groups (PTGs)” which was renamed in 2006 as “Particularly Vulnerable Tribal Groups (PVTGs)”.

    How are STs notified?

    • The first specification of Scheduled Tribes in relation to a particular State/ Union Territory is by a notified order of the President, after consultation with the State governments concerned.
    • These orders can be modified subsequently only through an Act of Parliament.

    Status of STs in India

    • The Census 2011 has revealed that there are said to be 705 ethnic groups notified as Scheduled Tribes (STs).
    • Over 10 crore Indians are notified as STs, of which 1.04 crore live in urban areas.
    • The STs constitute 8.6% of the population and 11.3% of the rural population.

     

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