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Subject: Polity

  • What is Article 371F?

    371

    Former Sikkim CM claimed that the Sikkimese people feel betrayed as Article 371F, which guarantees special provisions for Sikkim, was “violated”.

    What is Article 371F?

    • Article 371F is a special provision in the Constitution of India that was created to provide for the unique status of Sikkim, a state located in the northeastern part of India.
    • Sikkim was an independent kingdom until 1975, when it became the 22nd state of India.
    • Article 371F was included in the Constitution to ensure that Sikkim’s distinct identity and cultural heritage were protected and preserved after its merger with India.

    Special provisions for Sikkim

    Under Article 371F, Sikkim has been granted several special provisions that are not available to other states in India. Some of the key provisions of Article 371F are:

    • Protection of Sikkimese people: Only the descendants of Sikkim subjects (those who lived in the state before its merger with India) whose names were mentioned in the 1961 register are considered Sikkimese and are entitled to certain benefits, such as the right to own land and get state government jobs. They are also exempted from paying income tax.
    • Legislative powers: The Governor of Sikkim has special powers with respect to the Sikkim Legislative Assembly, including the power to nominate one member to the Assembly and the power to give his or her assent to certain bills.
    • Constitutional safeguards: Certain constitutional safeguards have been provided to the people of Sikkim to protect their distinct identity and cultural heritage.
    • Formation of Committees: The Central Government has the power to appoint a committee of experts to advise on matters related to Sikkim, and the State Government can also appoint committees to examine issues related to the protection of Sikkim’s unique identity.

    Why in news?

    • The Financial Bill, 2023 redefined Sikkimese as any Indian citizen domiciled in Sikkim, which would extend these benefits to a broader population.
    • This move is seen as a violation of Article 371F, which was the basis for Sikkim’s merger with India in 1975.

    Concerns highlighted

    • The leader claimed that the people of Sikkim feel betrayed by the violation of Article 371F.
    • He alleged that Sikkim has become a hotbed for political violence.
    • He claimed that unrest in a sensitive border state like Sikkim is not good for national security.

    Back2Basics: Article 371

    • It is a provision in the Constitution of India that grants special provisions and autonomy to certain states in India.
    • It is a set of temporary and transitional provisions that were included in the Constitution to address the specific needs and aspirations of various regions and communities in the country.
    • The provisions of Article 371 differ from state to state, depending on the specific needs and demands of the region. For instance:
    1. Maharashtra and Gujarat: Article 371 provides for special provisions for the states of Maharashtra and Gujarat, which grants certain rights and privileges to the people of the Marathi-speaking areas of Maharashtra and the Gujarati-speaking areas of Gujarat.
    2. Nagaland: Article 371A provides for special provisions and autonomy for the state of Nagaland. It grants the Nagaland Legislative Assembly special powers with respect to lawmaking, and prohibits outsiders from acquiring land in the state.
    3. Assam: Article 371B provides for special provisions for the state of Assam, which includes the establishment of a regional council for the state and grants the council certain legislative and executive powers.
    4. Manipur: Article 371C provides for special provisions for the state of Manipur. It gives the Manipur Legislative Assembly the power to enact laws related to land, forests, and minerals, and also provides for the protection of the rights of the hill tribes in the state.
    5. Andhra Pradesh: Article 371D provides for the establishment of a special committee to oversee the development of backward regions in the state of Andhra Pradesh.
    • The provisions are aimed at promoting the development and welfare of the people in these states, while preserving their unique cultural and linguistic identity.

     

     

  • Principles of Natural Justice and Proportionality

    justice

    Central idea

    • The Supreme Court lifted a broadcasting ban on a Malayalam news channel ‘MediaOne’.
    • The court blasted the government for silencing voices in the media who “speak truth to power” by branding them as “anti-establishment”.

    A quick recap of the case

    • The Ministry of Information and Broadcasting (MIB) has earlier refused to renew broadcast license of a Malayalam news channel.
    • The Ministry of Home Affairs had declined to grant security clearance to the channel’s promoters citing alleged links between radical groups.
    • Hence the news agency approached Kerala High Court, which upheld the ban on February 9, 2022
    • The Supreme Court granted temporary relief and allowed it to resume operations.

    Supreme Court’s ruling

    • The Supreme Court set aside earlier ban orders and upheld the channel’s appeal on two procedural grounds, namely
    1. Principles of natural justice and
    2. Proportionality

    Articles invoked in the judgment

    • The Court stated that the burden shifts on the Centre to prove that the procedure followed was reasonable and in compliance with the requirements of Articles 14 and 21 of the Constitution.
    • The Court used the standard of proportionality to test the reasonableness of the procedure in the present case and assessed the validity of public interest immunity claims based on the “structured proportionality standard”.
    • The Court found that the reasons for denying security clearance to the channel were not legitimate purposes for the restriction of the right of freedom of speech protected under Article 19(1)(a) of the Constitution.

    Key concepts involved

    (1) Principles of natural justice

    • The principles of natural justice are a set of procedural rules that ensure fairness and justice in administrative and legal proceedings.
    • These principles are based on the fundamental idea that everyone is entitled to a fair hearing, and they are aimed at preventing arbitrary or biased decisions by decision-makers.
    • The SC bench allowed the challenge to the MHA order and judgment of the High Court on account of the principles of natural justice constitutionalized by its judgment in its 1978 ruling in “Maneka Gandhi vs Union of India”
    • Actions which violate procedural guarantees can be struck down even if non-compliance does not prejudice the outcome of the case.

    (2) Proportionality

    • The principle requires that the decision or action must be proportionate to the objective it seeks to achieve.
    • In other words, the means employed to achieve the objective must be no more than necessary to achieve it, and the harm caused by the decision or action must not be excessive in relation to the benefit gained.
    • The validity of the claim of involvement of national security considerations must be assessed on the test of whether there is material to conclude that the non-disclosure of information is in the interest of national security.
    • Courts can assess the validity of public interest immunity claims based on the “structured proportionality standard”, said the SC.
    • The SC observed that sealed cover proceedings infringe the principles natural justice and open justice.

    Conclusion

    • The Court’s ruling has been welcomed by media organizations and civil society groups as a victory for freedom of speech and expression
    • The Court observed that the duty to act fairly derived from common law is not exhaustively defined in a set of concrete principles, and the concept of natural justice “cannot be put into a ‘straitjacket formula’.
    • The ruling has been hailed as a victory for freedom of speech and expression, and a blow to attempts to stifle dissent and critical voices in the media.

  • India Justice Report, 2022: Key Highlights

    justice

    Central idea: The third India Justice Report, 2022 analyses the changes – both positive and negative – in India’s justice delivery system across four parameters: police, judiciary, prisons and legal aid.

    India Justice Report

    • The IJR is an initiative of Tata Trusts in collaboration with Centre for Social Justice, Common Cause and Commonwealth Human Rights Initiative among others.
    • It was first published in 2019.

    Below are some of the salient findings of the report – overcrowded prisons, not enough training centres for police personnel, a rising number of pending cases per judge, and more.

    Finding

    Highlights

    Recommendations
    1. Policing concentrated in urban areas
    • 60% of India’s population lives in rural areas, yet police forces are concentrated largely in urban areas.
    • Only six states meet the recommended area coverage of 150 sq. km for a rural police station.
    • Increase recruitment and training of police personnel in rural areas to ensure adequate coverage.
    • Increase police-community engagement and build trust in rural communities.
    2. Police training academies are overloaded
    • India has only 211 training schools and academies for 26.88 lakh police personnel.
    • Training across fields cannot be a one-off event for police personnel.
    • Increase the number of training institutes and the number of personnel trained each year.
    • Allocate a larger portion of the police budget to training.
    3. Prison overcrowding is getting worse
    • Prison populations have risen steadily with the number of people admitted to 1,319 prisons during 2021 increasing by 10.8%.
    • The average prison in the country has an occupancy rate of 130%. In some states, this number is far worse.
    • Invest in building new prisons and expanding existing ones.
    • Explore alternative forms of punishment and rehabilitation for non-violent offenders.
    4. Number of undertrial prisoners increasing
    • 77% of the incarcerated population comprises undertrials.
    • This number has nearly doubled since 2010.
    • Streamline legal processes to reduce the number of undertrials.
    • Increase the use of bail and release on personal recognizance.
    5. Cases pending per judge rising
    • 4.9 Crore cases remain pending across high courts and district courts in the country.
    • Many cases have been pending for over 10 years.
    • Increase the number of judges to reduce the backlog of cases.
    • Modernize court processes with technology to streamline proceedings.
    6. Share of women high court judges remains low
    • Between 2020 and 2022, there was a little less than a two percentage point increase in women’s representation in high courts.
    • Women account for 35% of the total number of judges at the district court level.
    • Implement policies to encourage more women to become judges.
    • Provide training and support for women judges to advance in their careers.
    7. No state/UT fulfilled all quotas for SC/ST/OBC judges at district court level
    • No state/UT could fully meet all its quotas for Scheduled Castes, Scheduled Tribes, and Other Backward Classes.
    • Increase recruitment of judges from marginalized communities.
    • Implement policies to encourage and support their advancement in the judiciary.
    8. Allocation to legal aid increasing, but no state/UT used its entire budget allocation
    • Over the last two years, the overall allocation for legal services has increased substantially.
    • No state/UT used its entire budget allocation for legal aid.
    • Ensure efficient utilization of resources for legal aid.
    • Implement monitoring and evaluation mechanisms to track the impact of legal aid on access to justice.
    9. Implementation of victim compensation schemes remains subpar
    • Implementation of victim compensation schemes “remains subpar.”
    • State Legal Aid Service Authorities disposed of only 66% of the 97,037 applications seeking compensation received.
    • Increase awareness of victim compensation schemes. Improve efficiency in processing and disposing of compensation applications.
    • Provide support services for victims, including legal and mental health services.

     

    Conclusion

    • The report highlights that India’s criminal justice system continues to face a wide range of challenges and shortcomings that need to be addressed to ensure the rule of law and equal access to justice.
    • Some of the key areas that require immediate attention include the need for better police training and infrastructure, reducing overcrowding in prisons, and improving the speed and efficiency of the judicial system.
    • Additionally, the report calls for greater attention to be paid to the needs of victims of crime, including improving access to legal aid and victim compensation schemes.
    • By addressing these challenges, India can move closer to achieving a more equitable and effective criminal justice system.

     

  • What is Model Code of Conduct?

    model

    The Election Commission of India announced the date for Karnataka Assembly elections.  Hence the model code of conduct comes into the picture.

    Model Code of Conduct

    • It is a set of guidelines issued by ECI to regulate political parties and candidates before elections.
    • The rules range from issues related to speeches, polling day, polling booths, portfolios, content of election manifestos, processions and general conduct so that free and fair elections are conducted.

    When does it come into effect?

    • According to the PIB, a version of the MCC was first introduced in the state assembly elections in Kerala in 1960.
    • It was largely followed by all parties in the 1962 elections and continued to be followed in subsequent general elections.
    • In October 1979, the EC added a section to regulate the ‘party in power’ and prevent it from gaining an unfair advantage at the time of elections.
    • The MCC comes into force from the date the election schedule is announced until the date that results are out.

    Restrictions imposed under MCC

    The MCC contains eight provisions dealing with general conduct, meetings, processions, polling day, polling booths, observers, the party in power, and election manifestos.

    For Governments

    • As soon as the code kicks in, the party in power whether at the Centre or in the States should ensure that it does not use its official position for campaigning.
    • Hence, no policy, project or scheme can be announced that can influence the voting behaviour.
    • The code also states that the ministers must not combine official visits with election work or use official machinery for the same.
    • The ruling government cannot make any ad-hoc appointments in Government, Public Undertakings etc. which may influence the voters.
    • Political parties or candidates can be criticised based only on their work record and no caste and communal sentiments can be used to lure voters.

    For Political Parties

    • The party must also avoid advertising at the cost of the public exchequer or using official mass media for publicity on achievements to improve chances of victory in the elections.
    • The ruling party also cannot use government transport or machinery for campaigning.
    • It should also ensure that public places such as maidans etc., for holding election meetings, and facilities like the use of helipads are provided to the opposition parties on the same terms and conditions on which they are used by the party in power.

    Campaigning

    • Holding public meetings during the 48-hour period before the hour fixed for the closing of the poll is also prohibited.
    • The 48-hour period is known as “election silence”.
    • The idea is to allow a voter a campaign-free environment to reflect on events before casting her vote
    • The issue of advertisement at the cost of public exchequer in the newspapers and other media is also considered an offence.
    • Mosques, Churches, Temples or any other places of worship should not be used for election propaganda. Bribing, intimidating or impersonation of voters is also barred.

    Is it legally binding?

    • The fact is the MCC evolved as part of the ECI’s drive to ensure free and fair elections and was the result of a consensus among major political parties.
    • It has no statutory backing. Simply put, this means anybody breaching the MCC can’t be proceeded against under any clause of the Code..
    • The EC uses moral sanction or censure for its enforcement.

    What if violated?

    • The ECI can issue a notice to a politician or a party for alleged breach of the MCC either on its own or based on a complaint by another party or individual.
    • Once a notice is issued, the person or party must reply in writing either accepting fault and tendering an unconditional apology or rebutting the allegation.
    • In the latter case, if the person or party is found guilty subsequently, he/it can attract a written censure from the ECI — something that many see as a mere slap on the wrist.
    • However, in extreme cases, like a candidate using money/liquor to influence votes or trying to divide voters in the name of religion or caste, the ECI can also order registration of a criminal case under IPC or IT Act.
    • In case of a hate speech, a complaint can be filed under the IPC and CrPC; there are laws against the misuse of a religious place for seeking votes, etc.

    Using powers under Art. 324

    • The Commission rarely resorts to punitive action to enforce MCC, there is one recent example when unabated violations forced EC’s hand.
    • During the 2014 Lok Sabha polls, the EC had banned a leader and now party president from campaigning to prevent them from further vitiating the poll atmosphere with their speeches.
    • The Commission resorted to its extraordinary powers under Article 324 of the Constitution to impose the ban.
    • It was only lifted once the leaders apologised and promised to operate within the Code.

    What if given Statutory Backing?

    • Both the ECI and several independent experts, believe that giving statutory backing to the MCC would only make the job of the Commission more difficult.
    • This is because every alleged offence will then have to go to an appropriate court, and right up to the Supreme Court.
    • Given the flaws of our legal system, election petitions filed decades ago are still pending before many High Courts — it is anybody’s guess what that situation might lead to.

  • Disqualification of a MP: Constitutional and Legal Issues

    Central Idea

    • The recent conviction and disqualification of Congress leader Rahul Gandhi have raised some important constitutional and legal issues, especially related to the disqualification of members of the legislature. The interpretation of Section 8 of the Representation of the People Act, 1951, and the role of the President in cases of disqualification is resurfaced again.

    Background of the case

    • The Congress leader during campaigning for the 2019 parliamentary polls had made a remark, “How come all the thieves have Modi as the common surname?”
    • On the basis of this remark, a criminal defamation case was filed against him in a surat court by a BJP MLA who had alleged that the congress leader while addressing a poll rally in 2019 in Karnataka defamed the entire Modi community with his remark.
    • The Surat court on Thursday convicted the Congress leader in a criminal defamation case and awarded him a two-year jail term.
    • On basis of this, the Congress leader has been disqualified from the Lok Sabha,. A notice issued by the Lok Sabha Secretariat said that he stood disqualified from the House from March 23, the day of his conviction.

    Disqualification under the Representation of the People Act (RPA), 1951

    • Grounds of disqualification: Section 8 of the RPA, 1951 specifies the various offenses, conviction for which entail the disqualification of a member of the legislature.
    • Clause (3): Clause (3) of this section says that a person convicted of any offense other than those mentioned in the other two clauses, and sentenced to not less than two years shall be disqualified from the date of conviction.
    • Exemption under clause (4): The clause (4) has exempted sitting members from instant disqualification for three months to enable them to appeal against the conviction.

    Role of the President in Disqualification

    • President has the authority: Article 103 of the Indian Constitution provides the President of India as the authority who decides that a sitting member has become subject to disqualification in all cases which come under Article 102(1).
    • President’s adjudicatory and declaratory functions: There are differences of opinion on the scope of Article 103, but the Supreme Court, in Consumer Education and Research Society vs Union of India (2009), upholds the position that the President performs adjudicatory and declaratory functions here.

    Flaws in the Judgment in Lily Thomas Case

    • Parliament cannot enact a temporary exemption: It says that Parliament cannot enact a temporary exemption in favor of sitting members of the Legislature.
    • Article 103 provides an exception: But Article 103 itself provides an exception in the case of sitting Members by stating that the disqualification of sitting Members shall be decided by the President.
    • Distinction between the candidates and sitting Members: The Constitution itself makes a distinction between the candidates and sitting Members. This was ignored by the judgment and the Court struck down the three months window given to the sitting members to enable them to appeal against their conviction.

    Defamation in India

    • What is Defamation: Defamation refers to the act of publication of defamatory content that lowers the reputation of an individual or an entity when observed through the perspective of an ordinary man. Defamation in India is both a civil and a criminal offence.
    • The Laws which Deal with Defamation: Sections 499 and 500 of IPC: Sections 499 and 500 in the IPC deal with criminal defamation. While the former defines the offence of defamation, the latter defines the punishment for it.

    Facts for prelims: Lily Thomas Verdict

    • The Lily Thomas verdict was a landmark judgment delivered by the Supreme Court of India in 2013.
    • The verdict struck down a provision in the Representation of the People Act (RPA), which allowed convicted lawmakers to continue in office if they filed an appeal within three months of their conviction.
    • The provision, which was part of Section 8(4) of the RPA, had been criticized for allowing convicted politicians to continue to hold public office while their appeals were pending in higher courts, and for contributing to the criminalization of politics in India.
    • The verdict was seen as a major step towards cleaning up Indian politics and ensuring that convicted criminals do not get to occupy public offices.

    Conclusion

    • The recent conviction and disqualification of Congress leader Rahul Gandhi have raised important constitutional and legal issues related to the disqualification of members of the legislature. While the issues relating to the disqualification of Rahul Gandhi will be dealt with by the appellate courts, the legal and constitutional issues raised by this case need to be examined carefully
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  • Disqualification of a MP over Criminal Charges

    disqualification

    Central idea: A politician has been sentenced to two years in jail by a Surat court in a 2019 defamation case filed against him for his remarks about the surname of a community. This conviction could lead to his disqualification.

    Disqualification of a Lawmaker

    Disqualification of a lawmaker is prescribed in three situations-

    1. Constitutional provisions: First is through Articles 102(1) and 191(1) for disqualification of a member of Parliament and a member of the Legislative Assembly respectively. The grounds here include holding an office of profit, being of unsound mind or insolvent or not having valid citizenship.
    2. Defection: It is in the Tenth Schedule of the Constitution, which provides for the disqualification of the members on grounds of defection.
    3. Representation of The People Act (RPA), 1951: It provides for disqualification for conviction in criminal cases.

    Disqualification under RPA, 1951

    • It provides for disqualification for conviction in criminal cases.
    • Section 8 of the RPA deals with disqualification for conviction of offences.
    • The provision is aimed at “preventing the criminalisation of politics” and keeping ‘tainted’ lawmakers from contesting elections.

    Section 8(3) states: “A person convicted of any offence and sentenced to imprisonment for not less than two years shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.”

    Appeal and stay of disqualification

    • The disqualification can be reversed if a higher court grants a stay on the conviction or decides the appeal in favour of the convicted lawmaker.
    • In a 2018 decision in ‘Lok Prahari v Union of India’, the Supreme Court clarified that the disqualification “will not operate from the date of the stay of conviction by the appellate court.”
    • This means that Gandhi’s first appeal would be before the Surat Sessions Court and then before the Gujarat High Court.

    Changes in the Law

    • Under the RPA, Section 8(4) stated that the disqualification takes effect only “after three months have elapsed” from the date of conviction.
    • Within that period, lawmakers could file an appeal against the sentence before the High Court.
    • However, in the landmark 2013 ruling in ‘Lily Thomas v Union of India’, the Supreme Court struck down Section 8(4) of the RPA as unconstitutional.

    Lily Thomas Verdict

    • The Lily Thomas verdict was a landmark judgment delivered by the Supreme Court of India in 2013.
    • The verdict struck down a provision in the Representation of the People Act (RPA), which allowed convicted lawmakers to continue in office if they filed an appeal within three months of their conviction.
    • The provision, which was part of Section 8(4) of the RPA, had been criticized for allowing convicted politicians to continue to hold public office while their appeals were pending in higher courts, and for contributing to the criminalization of politics in India.The verdict was seen as a major step towards cleaning up Indian politics and ensuring that convicted criminals do not get to occupy public offices.

     

     

  • What does ‘Guillotine’ refer to in legislative parlance?

    Central idea: Amidst the ongoing stalemate in Parliament, some MPs said the government may guillotine the demands for grants and pass the Finance Bill without any discussion in the Lok Sabha.

    What is a Guillotine?

    • A guillotine is an apparatus designed for efficiently carrying out executions by beheading.
    • It consists of a large, weighted blade that is raised to the top of a tall, erect frame and released to fall on the neck of a condemned person secured at the bottom of the frame, executing them in a single, clean pass.
    • The origin of the exact device as well as the term can be found in France.
    • The design of the guillotine was intended to make capital punishment more reliable and less painful in accordance with new Enlightenment ideas of human rights.

    Guillotine Motion in Parliament

    • In legislative parlance, to “guillotine” means to bunch together and fast-track the passage of financial business.
    • It is a fairly common procedural exercise in Lok Sabha during the Budget Session.
    • After the Budget is presented, Parliament goes into recess for about three weeks, during which time the House Standing Committees examine Demands for Grants for various Ministries, and prepare reports.
    • After Parliament reassembles, the Business Advisory Committee (BAC) draws up a schedule for discussions on the Demands for Grants.
    • Given the limitation of time, the House cannot take up the expenditure demands of all Ministries; therefore, the BAC identifies some important Ministries for discussion.
    • It usually lists Demands for Grants of the Ministries of Home, Defence, External Affairs, Agriculture, Rural Development and Human Resource Development.

    Why use such a motion?

    • Members utilise the opportunity to discuss the policies and working of Ministries.
    • Once the House is done with these debates, the Speaker applies the “guillotine”, and all outstanding demands for grants are put to vote at once.
    • This usually happens on the last day earmarked for the discussion on the Budget.
    • The intention is to ensure the timely passage of the Finance Bill, marking the completion of the legislative exercise with regard to the Budget.

     

  • SC to examine if Electoral Bond pleas need to be referred to Constitution Bench

    bond

    The Supreme Court will examine whether petitions challenging the validity of the electoral bonds scheme need to be referred to a Constitution Bench.

    What is a Constitution Bench?

    • The constitution bench is the name given to the benches of the Supreme Court of India.
    • The Chief Justice of India has the power to constitute a Constitution Bench and refer cases to it.

    Constitution benches are set up when the following circumstances exist:

    1. Interpretation of the Constitution: Article 145(3) provides for the constitution of at least five judges of the court which sit to decide any case “involving a substantial question of law as to the interpretation” of the Constitution of India.
    2. President of India seeking SC’s opinion: When the President has sought the Supreme Court’s opinion on a question of fact or law under Article 143 of the Constitution. Article 143 of the Constitution provides for Advisory jurisdiction to the SC. As per the provision, the President has the power to address questions to the apex Court, which he deems important for public welfare.
    3. Conflicting Judgments: When two or more three-judge benches of the Supreme Court have delivered conflicting judgments on the same point of law, necessitating a definite understanding and interpretation of the law by a larger bench.
    • The Constitution benches are set up on ad hoc basis as and when the above-mentioned conditions exist.
    • Constitution benches have decided many of India’s best-known and most important Supreme Court cases, such as:
    1. K. Gopalan v. State of Madras (Preventive detention)
    2. Kesavananda Bharati v. State of Kerala (Basic structure doctrine) and
    3. Ashoka Kumar Thakur v. Union of India (OBC reservations) etc.

     

    What are Electoral Bonds?

    • Electoral bonds are banking instruments that can be purchased by any citizen or company to make donations to political parties, without the donor’s identity being disclosed.
    • It is like a promissory note that can be bought by any Indian citizen or company incorporated in India from select branches of State Bank of India.
    • The citizen or corporate can then donate the same to any eligible political party of his/her choice.
    • An individual or party will be allowed to purchase these bonds digitally or through cheque.

    About the scheme

    • A citizen of India or a body incorporated in India will be eligible to purchase the bond
    • Such bonds can be purchased for any value in multiples of â‚č1,000, â‚č10,000, â‚č10 lakh, and â‚č1 crore from any of the specified branches of the State Bank of India
    • The purchaser will be allowed to buy electoral bonds only on due fulfillment of all the extant KYC norms and by making payment from a bank account
    • The bonds will have a life of 15 days (15 days time has been prescribed for the bonds to ensure that they do not become a parallel currency).
    • Donors who contribute less than â‚č20,000 to political parties through purchase of electoral bonds need not provide their identity details, such as Permanent Account Number (PAN).

    Objective of the scheme

    • Transparency in political funding: To ensure that the funds being collected by the political parties is accounted money or clean money.

    Who can redeem such bonds?

    • The Electoral Bonds shall be encashed by an eligible Political Party only through a Bank account with the Authorized Bank.
    • Only the Political Parties registered under Section 29A of the Representation of the People Act, 1951 (43 of 1951) and which secured not less than one per cent of the votes polled in the last General Election to the Lok Sabha or the State Legislative Assembly, shall be eligible to receive the Electoral Bonds.

    Restrictions that are done away

    • Earlier, no foreign company could donate to any political party under the Companies Act
    • A firm could donate a maximum of 7.5 per cent of its average three year net profit as political donations according to Section 182 of the Companies Act.
    • As per the same section of the Act, companies had to disclose details of their political donations in their annual statement of accounts.
    • The government moved an amendment in the Finance Bill to ensure that this proviso would not be applicable to companies in case of electoral bonds.
    • Thus, Indian, foreign and even shell companies can now donate to political parties without having to inform anyone of the contribution.

    Issues with the Scheme

    • Opaque funding: While the identity of the donor is captured, it is not revealed to the party or public. So transparency is not enhanced for the voter.
    • No IT break: Also income tax breaks may not be available for donations through electoral bonds. This pushes the donor to choose between remaining anonymous and saving on taxes.
    • No anonymity for donors: The privacy of the donor is compromised as the bank will know their identity.
    • Differential benefits: These bonds will help any party that is in power because the government can know who donated what money and to whom.
    • Unlimited donations: The electoral bonds scheme and amendments in the Finance Act of 2017 allows for “unlimited donations from individuals and foreign companies to political parties without any record of the sources of funding”.

    Way ahead

    • The worries over the electoral bond scheme, however, go beyond its patent unconstitutionality.
    • The concern about the possibility of misuse of funds is very pertinent.
    • The EC has been demanding that a law be passed to make political parties liable to get their accounts audited by an auditor from a panel suggested by the CAG or EC. This should get prominence.
    • Another feasible option is to establish a National Election Fund to which all donations could be directed.
    • This would take care of the imaginary fear of political reprisal of the donors.
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  • SC asks govt. for data on Death by Hanging

    death

    The Supreme Court has asked the Centre to provide data which may point to a more dignified, less painful and socially acceptable method of executing prisoners other than death by hanging.

    Central idea

    • The Supreme Court is hearing a petition challenging the constitutionality of death by hanging as a mode of execution.
    • The petition argued that there is a need to evolve a “humane, quick and decent alternative” to hanging, which he termed as “cruel and barbarous” compared to lethal injection used in the United States.

    Quest for painless execution

    • Justice Narasimha noted that there was literature suggesting that “hanging is closest to painless”.
    • In 2018, the Centre filed an affidavit supporting death by hanging and stated that it had found the method of firing squads and lethal injections as “barbaric, inhuman and cruel”.
    • The government traced statistics of “botched-up” administration of lethal injections to condemned prisoners in the United States for 110 years to prove its point.

    Status of death penalty in India

    • Section 354 (5) of the Code of Criminal Procedure mandates that a person sentenced to death shall “be hanged by the neck till he is dead”.
    • In India, The Air Force Act, 1950, The Army Act 1950, and The Navy Act 1957 say that execution has to be carried out either by hanging by the neck until death or by being shot to death.

    Why in news now?

    • The court clarified that it was not questioning the constitutionality of the death penalty, which was well-settled in Deena versus Union of India judgment and the Bachan Singh case reported in 1980.
    • The government argued that the mode of execution is a “matter of legislative policy” and the death penalty is awarded only in the rarest of rare cases, with only three executions between 2012 and 2015.

    Debate over Death Penalty

    Arguments in favor:

    • Forfeiture of life: Supporters of the death penalty believe that those who commit murder, because they have taken the life of another, have forfeited their own right to life.
    • Moral indignation of the victim: It is a just form of retribution, expressing and reinforcing the moral indignation not only of the victim’s relatives but of law-abiding citizens in general.
    • Highest form of Justice: For heinous crimes such as the Nirbhaya Gangrape Case, no other punishment could have deterred the will of the convicts.
    • Deterrent against crime: Capital punishment is often justified with the argument that by executing convicted murderers, we will deter would-be murderers from killing people.
    • Proportional punishment: The guilty people deserve to be punished in proportion to the severity of their crime.
    • Prevailing lawlessness: The crimes we are now witnessing cannot be addressed by simple punishments. We are seeing horrific attacks on women, young girls, minority communities and Dalits etc.
    • Prevention of crime is non-existent: Despite of stringent regulations, it is certainly visible that some crimes can never be prevented in our society.

    Arguments against:

    • Eye for an eye: Reformative justice is more productive, that innocent people are often killed in the search for retribution, and that “an eye for an eye makes the whole world blind.
    • Deterrence is a myth: Death penalty is not a deterrent to capital crimes state that there is no evidence to support the claim that the penalty is a deterrent.
    • Political tool of suppression: The authorities in some countries, for example Iran and Sudan, use the death penalty to punish political opponents.
    • Reverence for life’ principle: Death penalty is an immoral punishment since humans should not kill other humans, no matter the reasons, because killing is killing.
    • Stigma against killing: With the introduction of lethal injection as execution method, medical professionals participate in executions. Many professionals have now refused to administer such deaths.
    • Skewed justice systems: In many cases recorded by Amnesty International, people were executed after being convicted in grossly unfair trials, on the basis of torture-tainted evidence and with inadequate legal representation.
    • Discriminatory nature: The weight of the death penalty is disproportionally carried by those with less advantaged socio-economic backgrounds or belonging to a racial, ethnic or religious minority.
    • Penalizing the innocents: The risk of executing the innocent precludes the use of the death penalty. Our colonial history has witnessed many such executions.

    Other issues with such executions

    (a) Socio-Economic Factors

    • The recent statistics shows that the death row prisoners in India are more from the backward classes of the society.
    • The death row prisoners belong to backward classes and religious minorities and the majority of convicts’ families are living in adjunct poverty.
    • These people who are backward both in economic and social respects, are not in a position to here expensive lawyers and get proper representation in the Court.

    (b) Delayed Execution

    • The law provides for a long process before the execution of the convicts actually takes place.
    • The unexplained delay in execution can be a ground for commutation of death penalty, and an inmate, his or her kin, or even a public-spirited citizen could file a writ petition seeking such commutation.
    • Their trials are often cruelly forced to endure long periods of uncertainty about their fate.

    Way forward: Law Commission recommendations on death penalty

    The Law Commission of India in its 262nd Report (August 2015) recommended that:

    • Death penalty be abolished for all crimes other than terrorism-related offences and waging war.
    • Measures such as police reforms, witness protection scheme and victim compensation scheme should be taken up expeditiously by the government.
    • It felt that time has come for India to move towards abolition of the death penalty. However the concern is often raised that abolition of death penalty for terrorism-related offences and waging war, will affect national security.

     

  • E-Postal Ballot for Overseas Indian Voters

    post-vote

    Central idea: The Election Commission of India (EC) has proposed to facilitate the electronically-transmitted postal ballot system for overseas Indian voters.

    Why such a move?

    • The total number of overseas voters on January 1, 2023, was over 1.15 lakh.

    Measures taken

    • The Representation of the People (Amendment) Bill, 2018 was passed by the Lok Sabha in August 2018 on the recommendation of the EC.
    • The Bill sought to enable overseas electors to cast their vote either in person or by proxy.
    • However, it lapsed when the 16th Lok Sabha was dissolved as it was pending in the Rajya Sabha.

    How can overseas voters currently vote in Indian elections?

    • Prior to 2010, an Indian citizen who is an eligible voter and was residing abroad for more than six months, would not have been able to vote in elections.
    • This was because the NRI’s name was deleted from electoral rolls if he or she stayed outside the country for more than six months at a stretch.
    • After the passing of the Representation of the People (Amendment) Act, 2010, eligible NRIs who had stayed abroad beyond six months have been able to vote, but only in person at the polling station where they have been enrolled as an overseas elector.
    • Just as any resident Indian citizen above the age of 18 years) is eligible to vote in the constituency where she/he is a resident, and overseas Indian citizens are also eligible to do so.
    • In the case of overseas voters, the address mentioned in the passport is taken as the place of ordinary residence and chosen as the constituency for the overseas voter to enrol in.

    How has the existing facility worked so far?

    • Hike in voters: From merely 11,846 overseas voters who registered in 2014, the number went up to close to a lakh in 2019. But the bulk of these voters (nearly 90%) belonged to just one State — Kerala.
    • Section 20-1A, Part III of the RP Act: It addresses this to some extent by qualifying “a person absenting himself temporarily from his place of ordinary residence shall not by reason thereof cease to be ordinarily resident therein.
    • Proxyprovisions: The Bill provided for overseas voters to be able to appoint a proxy to cast their votes on their behalf, subject to conditions laid down in the Conduct of Election Rules, 1961.
    • Electronically Transmitted Postal Ballot System: The ECI then approached the government to permit NRIs to vote via postal ballots similar to a system that is already used by service voters, (a member of the armed Forces of the Union; or a member of a force to which provisions of the Army Act, 1950 (46 of 1950) which is ETPBS. The ECI proposed to extend this facility to overseas voters as well.

    What is ETPBS and how does it function?

    • The Conduct of Election Rules, 1961 was amended in 2016to allow service voters to use the ETPBS.
    • Under this system, postal ballots are sent electronicallyto registered service voters.
    • The service voter can then download the ETPB(along with a declaration form and covers), register their mandate on the ballot and send it to the returning officer of the constituency via ordinary mail.
    • The post will include an attested declaration form(after being signed by the voter in the presence of an appointed senior officer who will attest it).
    • The postal ballot must reach the returning officer by 8 a.m.on the day of the counting of results.
    • In the case of NRI voters, those seeking to vote through ETPBS will have to inform the returning officer at least five days after notification of the election.

    Are postal ballots a viable means of voting?

    • The ETPBS method allowed for greater turnout among service voters in the 2019 Lok Sabha election.
    • With the increasing mobility of citizens across countries for reasons related to work, the postal ballot method has been internationally recognized.
    • A postal ballot mechanism that allows for proper authentication of the ballot at designated consular/embassy offices and an effective postal system should ease this process for NRIs.

    Back2Basics: NRI vs OCI

    Non-Resident Indian (NRI)

    • To mention it, NRI is someone who is not a resident of India.
    • However, the law is much more complicated and must be delved deeper to gain an inclusive insight into the sector.
    • A person is considered a resident of India if he/she has been staying in India for a minimum tenure of 182 days during the previous financial year of a particular year. OR
    • A person living in India for a total of 365 days during the previous four financial years and a minimum of 60 days during the last financial years is considered a citizen for a particular year.
    • Now an NRI or a non-resident of India is eligible to pay charges for only the first two situations, which means either the income received or earned in India.
    • Therefore, the NRI status also influences the enjoyable rights of that person.

    Overseas Citizen of India (OCI)

    • OCI is a card issued by the government of India that denotes that a non-resident or foreigner has been permitted to stay and work within Indian boundaries.
    • Hence, this card provides foreigners with an immigration status without any limited tenure.
    • There are cases where PIOs of specific categories are allowed for OCI cards that have migrated from India to foreign countries (except Pakistan and Bangladesh) if the other government agrees for dual citizenship.
    • An individual holding an OCI card can be an overseas citizen of India in layman’s language.
    • So an OCI is not a citizen of India, but the Indian government has given the cardholder permission to reside and work within the boundaries of India.
    • Residents migrating from Pakistan and Bangladesh are not eligible for holding the OCI card. Even if their parents are citizens of both countries, the applicants will be denied having an OCI card.

     

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