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Subject: Polity

  • Foreign lawyers, firms can operate in India: Bar Council

    bar

     

    Central Idea: The Bar Council of India (BCI) has opened up law practice in India to foreign lawyers and law firms. It has framed the ‘Bar Council of India Rules for Registration of Foreign Lawyers and Foreign Law Firms in India, 2021’.

    About Bar Council of India (BCI)

    • The BCI is a statutory body established under the section 4 of Advocates Act 1961 that regulates the legal practice and legal education in India.
    • Its members are elected from amongst the lawyers in India and as such represents the Indian bar.
    • It prescribes standards of professional conduct, etiquettes and exercises disciplinary jurisdiction over the bar.
    • It also sets standards for legal education and grants recognition to universities whose degree in law will serve as a qualification for students to enroll themselves as advocates upon graduation.

    History

    • In March 1953, the ‘All India Bar Committee’, headed by S. R. Das, submitted a report which proposed the creation of a bar council for each state and an all India bar council as an apex body.
    • It was suggested that the all-India bar council would regulate the legal profession and set the standard of legal education.
    • The Law Commission of India was assigned the job of assembling a report on judicial administration reforms and helps India to reform justice and equity to whole country.
    • In 1961, the Advocates Act was introduced to implement the recommendations made by the ‘All India Bar Committee’ and ‘Law Commission’.

    Functions

    The functions of the Bar Council are to:

    1. Lay down standards of professional conduct and etiquette for advocates.
    2. Lay down procedure to be followed by disciplinary committees
    3. Safeguard the rights, privileges and interests of advocates
    4. Promote and support law reform
    5. Deal with and dispose of any matter which may be referred by a State Bar Council
    6. Promote legal education and lay down standards of legal education.
    7. Determine universities whose degree in law shall be a qualification for enrollment as an advocate.
    8. Conduct seminars on legal topics by eminent jurists and publish journals and papers of legal interest.
    9. Organise and provide legal aid to the poor.
    10. Recognise foreign qualifications in law obtained outside India for admission as an advocate.
    11. Manage and invest funds of the Bar Council.
    12. Provide for the election of its members who shall run the Bar Councils.

    Constitution

    • As per the Advocates Act, the BCI consists of members elected from each state bar council, and the Attorney General of India and the Solicitor General of India who are ex officio members.
    • The council elects its own chairman and vice-chairman for a period of two years from among its members.
    • Assisted by the various committees of the council, the chairman acts as the chief executive and director of the council.

    Why such move?  

    • The BCI notification also stated that the Rules would help to address the concerns expressed about the flow of Foreign Direct Investment into the country.
    • The Rules would also help make India a hub for international commercial arbitration.

    Move to benefit Indian lawyers

    • The rules enable foreign lawyers and law firms to “practice foreign law, diverse international law and international arbitration matters in India on the principle of reciprocity in a well-defined, regulated and controlled manner”.
    • The BCI said that the move would benefit Indian lawyers, whose standards of proficiency in law are comparable with international standards.
    • The legal fraternity in India is not likely to suffer any disadvantage since the move would be mutually beneficial for lawyers from India and abroad.

    How foreign lawyers can begin operating in India?

    • The Rules prescribe that foreign lawyers and firms would not be entitled to practice law in India without registration with the BCI.
    • Foreign lawyers and law firms are not allowed to practice Indian law in any form or before any court of law, tribunal, board or any other authority legally entitled to record evidence on oath.
    • However, the restriction does not apply to law practice by a foreign lawyer or foreign law firm on a ‘fly in and fly out basis’ for the purpose of giving legal advice to a client in India on foreign law or international legal issues.
    • In such a case, the lawyer or firm cannot have an office in India, and their practice cannot exceed 60 days in any 12-month period.

    Requirements for foreign lawyers and firms

    A primary qualification required from foreign lawyers and firms is-

    1. Certificate from the competent authority of their country that they are entitled to practice law in that country.
    2. Undertaking that they shall not practice Indian law in any form or before any court of law, tribunal, board or any other authority legally entitled to record evidence on oath.

     

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  • Decriminalization of Adultery and the Duty and Discipline

    Adultery

    Central Idea

    • The Supreme Court of India decriminalized adultery in 2018, but the Union of India sought clarification from the Court concerning its implementation in the armed forces. The court’s observations suggest that the armed forces may still discipline for adulterous acts under their special legislations. However, recent court cases show that an act must have some nexus with the discharge of duties to be considered misconduct, and private affairs cannot be subjected to moral policing under the Service Conduct Rules or Article 33 of the Constitution.

    What is mean by Adultery?

    • Adultery is a term used to describe a consensual sexual relationship between a married person and someone who is not their spouse.
    • It is generally considered to be a breach of marital fidelity and can have legal, social, and religious consequences.
    • In some societies and cultures, adultery is considered a crime or a sin, while in others it may not be explicitly prohibited but is still frowned upon or considered morally wrong.

    Adultery In the Indian context

    • Joseph Shine v. Union of India: Adultery was a criminal offense under Section 497 of the Indian Penal Code (IPC) until September 2018, when the Supreme Court of India decriminalized it in a landmark judgment in Joseph Shine v. Union of India.
    • Law applied to men only: Before the judgment, adultery was punishable by up to five years of imprisonment or a fine or both, and the law only applied to men who had sexual relations with someone’s wife without the husband’s consent.
    • Law did not consider women as an offender: The law did not consider a woman who had an affair with a married man as an offender or the husband as a victim.

    What is Article 33?

    • Fundamental rights of armed forces personnel can be curtailed by law for discipline: It empowers the Parliament to restrict or modify the fundamental rights of armed forces personnel, including members of the Army, Navy, and Air Force, to ensure the proper discharge of their duties and the maintenance of discipline among them. This means that the fundamental rights of armed forces personnel can be curtailed or modified by law to the extent that it does not hinder their duties or impact discipline.
    • Laws may be different from the general laws: The article gives special powers to Parliament to make laws that may not necessarily be in line with the fundamental rights guaranteed to Indian citizens under the Constitution. These laws may be different from the general laws applicable to Indian citizens, and their enforcement may be specific to the armed forces personnel.
    • Application: The article applies not only to the armed forces personnel but also to members of the police force and intelligence agencies involved in maintaining public order. However, the restrictions imposed on these personnel should be in line with the principles of the Constitution and not infringe on their right to privacy or other fundamental rights.

    Decriminalization of Adultery

    • Civil wrong: In 2018, The Joseph Shine judgment removed the criminalization of adultery and declared it a civil wrong that can be a ground for divorce.
    • State should not interfere in matters of personal relationship: The judgment recognized that the right to choose one’s partner and engage in consensual sexual relations is a fundamental right and that the state should not interfere in matters of personal relationships between consenting adults.
    • Violation of fundamental Rights: The provisions were found to be violative of Articles 14, 15, and 21 of the Constitution of India.

    Recent Court Cases

    • Rajasthan High Court: In Mahesh Chand Sharma versus State of Rajasthan and Others (2019).
    • The court set aside departmental proceedings against a police inspector who allegedly had illicit relations with a woman constable and had a child from illicit relations.
    • The court held that no employer could do moral policing on its employees beyond the domain of their public life.
    • Gujarat High Court: In Maheshbhai Bhurjibhai Damor versus State of Gujarat and 3 other(s) (2022).
    • The court quashed and set aside the dismissal order of an armed police constable arising from allegations that he had developed illicit relations with a widow.
    • The court held that allegations of misconduct must have some nexus with the duties to be performed by the government servant.
    • Private affairs cannot be subjected to moral policing under the Service Conduct Rules or Article 33 of the Constitution.

    Government’s argument

    • Sought clarification: The Union of India sought clarification from the Court on implementing the decriminalization of adultery in the armed forces.
    • Special legislations must govern: The Union of India argued that special legislations, such as the Army Act, Air Force Act, and Navy Act, should govern promiscuous or adulterous acts among members of the armed forces.

    Conclusion

    • The recent court cases show that the decriminalization of adultery does not inhibit the parameters of departmental proceedings or enlarge them. Private affairs cannot be subjected to moral policing under the Service Conduct Rules or Article 33 of the Constitution unless it has some nexus with their duties. The sacrosanct right to privacy available to the members of the armed forces cannot be taken away unless it interferes with the discharge of duties.

    Mains Question

    Q. What is mean by Adultery? The Supreme Court of India decriminalized adultery in 2018. Discuss the reasons for doing so?

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  • Concerns with linking Aadhaar with Voter IDs

    adhaar

    Central idea: The article discusses the potential issues and concerns related to the Indian government’s proposal to link Aadhaar with Voter IDs.

    Total Aadhaar-Voter ID linkages

    • Around 60% of India’s electors now have their Aadhaar number linked to their name on the voter rolls.
    • It has achieved saturation of over 90% in States like Tripura, which went to the polls recently.
    • States like Gujarat and Delhi are lagging where only around 30% of the electorate has provided an Aadhaar number to election officials.

    What is the move about?

    • The linking is being carried out by filling Form 6B, which is provided by election officials going door-to-door to collect Aadhaar or alternate ID from registered voters.
    • The form was the result of the Election Laws (Amendment) Act passed in 2021 to allow the linking of Voter IDs and Aadhaar.
    • While the Election Commission (EC) maintains that providing an Aadhaar is optional, Form 6B requires voters to declare that they do not have an Aadhaar to avoid providing the number.

    Aadhaar-Voter ID linkage: Why does the government want this?

    • Accurate voter’s record: The EC conducts regular exercises to maintain an updated and accurate recordof the voter base.
    • Avoid duplicate voters: A part of this exercise is to weed out duplication of voters.
    • Identify unique voters: As per the government, linkage of Aadhaar with voter IDs will assist in ensuring that only one Voter ID is issued per citizen of India.

    Is the linking of Aadhaar with one’s Voter ID mandatory?

    • In December 2021, Parliament passed the Election Laws (Amendment) Act, 2021.
    • This was to amend the Representation of the People Act, 1950and Section 23(4) was inserted in the RP Act.
    • It states that the electoral registration officerMAY require voters to furnish their Aadhaar numbers to verify Authencity of voters list.

    Why there is such proposal for linking?

    The preference to use Aadhaar for verification and authentication, both by the state and private sector, stems from few reasons:

    • Increase in UID-holders:First, at the end of 2021, 99.7% of the adult Indian population had an Aadhaar card.
    • Most versatile document:This coverage exceeds that of any other officially valid document such as driver’s licence, ration cards, PAN cards etc. that are mostly applied for specific purposes.
    • Reliable source of authentication:Since Aadhaar allows for biometric authentication, Aadhaar based authentication and verification is considered more reliable, quicker and cost efficient when compared to other IDs.

    Issues with mandatory linking: Puttaswamy judgment highlights

    • Puttaswamy judgment:The above reasons do not suffice the mandating of Aadhaar except in limited circumstances as per the Puttaswamy judgment.
    • Indispensability of the purpose:It needs to be considered whether such mandatory linkage of Aadhaar with Voter ID would pass the test of being “necessary and proportionate” to the purpose of de-duplication which is sought to be achieved.
    • Constitutional ambiguity:In Puttaswamy, one of the questions that the Supreme Court explored was whether the mandatory linking of Aadhaar with bank accounts was constitutional or not.
    • Against informational autonomy: It is the right to privacy which would allow a person to decide which official document they want to use for verification and authentication.
    • Disenfranchisement: Some fear that linking Aadhaar with Voter IDs may exclude certain groups of people, such as those who do not have an Aadhaar card.

    Other judicial observations: Lal Babu Hussein (1995) Case

    • The Supreme Court had held that the Right to vote cannot be disallowed by insisting only on four proofs of identity.
    • The voters are entitled to rely on any other proof of identity and obtain the right to vote.

    What are the operational difficulties?

    • Aadhaar is not a citizenship proof:The preference to Aadhaar for the purposes of determining voters is puzzling as Aadhaar is only a proof of residence and not a proof of citizenship.
    • Excluding non-citizens is not easy:Verifying voter identity against this will only help in tackling duplication but will not remove voters who are not citizens of India from the electoral rolls.
    • Estimate of error rates in biometric based authentication:This certainly differs. As per the UIDAI in 2018, Aadhaar based biometric authentication had a 12% error rate.
    • Disenfranchisement of existing voters:Errors have led to the disenfranchisement of around 30 lakh voters in AP and Telangana before the Supreme Court stalled the process of linkage.

    Key concern: Right to Privacy

    • Some civil societies has highlighted that linking of the two databases of electoral rolls and Aadhaar could lead to the linkage of Aadhaar’s “demographic” information with voter ID information.
    • This could lead to violation of the right to privacy and surveillance measures by the state.
    • This would leave the EC with the option of verifying its information only through door-to-door checks.
    • There is a lack of enforceable data protection principlesthat regulate how authentication data will be used.

    Way forward

    • The govt should expedite the enactment of a data protection legislation that allays concerns of unauthorized processing of personal data held by the government.

     

  • Election Commission Appointments: Supreme Court’s Landmark Order

    Election

    Central Idea

    • The Supreme Court of India (SC) remains the most powerful centre of political power in the country at a time when almost every political issue is a matter of adjudication before the Court. A neutral body for the selection of the Chief Election Commissioner (CEC) and other Election Commissioners was the principal relief sought in Anoop Baranwal v. Union of India, which has been granted by the Court as per Thursday’s verdict. The judgment revives the era of judicial activism.

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    Anoop Baranwal v. Union of India: The chronology

    • PIL: Current system of appointing Election Commissioners is unconstitutional: In January 2015, Anoop Baranwal filed a PIL on the ground that the current system for appointing members of the Election Commission of India (ECI) is unconstitutional. Currently, the Executive enjoys the power to make appointments.
    • Pleads for Independent system: The PIL pleads for the Court to issue directions to set up an independent, Collegium-like system for ECI appointments.
    • Article 324:
    • Article 324 specifies that while the Chief Election Commissioner and Election Commissioners will be appointed by the President, this is subject to Parliamentary law (if such law exists).
    • While this provision places an expectation on Parliament to draft a relevant a law, it has not done so up until now. In the absence of such a law, the President has been making appointments as per the recommendations of the Prime Minister.
    • Union government’s defence: The Union has defended the current mechanism of appointments, citing the honest record of all past Chief Commissioners.
    • Urged court not to intervene: It has urged the Court to not intervene, submitting that the matter falls within the executive domain.
    • Recent verdict: The Supreme Court held that a committee comprising the Prime Minister, the Leader of the Opposition and the Chief Justice of India will advise the President on appointments to the Election Commission of India until Parliament enacts a law on the subject.

    What are the issues with Election commission?

    • The bone of contention: Petitioners argued that as per Article 324(2), CEC and ECs appointments must be based on a law, but no law was enacted. Taking advantage of this scenario, the dispensation at the Centre chooses the CEC and ECs, who are often seen to act in tune with those in power and those who select them. Therefore, the petitioners pleaded for an independent body for appointments.
    • Immunity for CEC and Susceptibility of ECs: Article 324(5) provides immunity to CEC but not to other ECs. CEC can only be removed like a Supreme Court judge. Other ECs may be more susceptible to the executive due to lack of security of tenure.
    • CEC and EC’s autonomy is linked to their selection process. In an electoral autocracy, executive control undermines fair elections.

    Back to Basics: What is judicial activism and judicial overreach?

    • Judicial Review: It is the process by which a court reviews the constitutionality of a statue or the application of a statute, and rules either for it or against it on that basis.
    • Judicial Activism: It is the view that courts make political rather than legal decisions to further some agenda, rather than strictly reviewing the legality of a law under the letter of the law and prior precedent. It refers to the process in which judiciary steps into the shoes of legislature and comes up with new rules and regulations, which the legislature ought to have done earlier.
    • Judicial Overreach: It refers to an extreme form of judicial activism where arbitrary, unreasonable and frequent interventions are made by judiciary into the legislature’s domain, often with the intention of disrupting the balance of powers between executive, legislature and judiciary.

    Election

    Supreme court’s Judgement: A great leap

    • Great leap towards a sustainable democracy: An independent committee consisting of the prime minister, leader of the opposition in the Lok Sabha or the leader of the largest party in opposition and the Chief Justice of India for selecting the CEC is a great leap towards a sustainable democracy.
    • Total Independence: The far-reaching verdict also means the Election Commission will have an independent secretariat, rule-making powers, an independent budget, and equal protection from impeachment.
    • Bench remarks: Democracy can succeed only if all stakeholders work on it to maintain the purity of the election process, so as to reflect the will of the people.

    Conclusion

    • The recent SC verdict regarding the selection of the commission is not a cure-all solution for electoral democracy. However, it corrects an unjust method of selection and significantly improves the legitimacy of the process.

    Mains Question

    Q. A Constitution Bench of the Supreme Court has ordered that the election commissioners will be appointed on the advice of a committee. Discuss what led to this judgment?

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  • Supreme Court verdict on ECI appointments

    Central idea: The Supreme Court has directed the central government to form a permanent selection committee consisting of consist of the Prime Minister, Leader of the Opposition, and the Chief Justice of India or his nominee to recommend the appointment of Election Commissioners.

    Supreme Court Ruling

    • The Supreme Court ruled that the appointment of the CEC should be made through a transparent and participatory process.
    • It directed the government to set up a permanent selection committee to recommend names for the appointment of the CEC.
    • The committee will consist of the Prime Minister, Leader of Opposition, and Chief Justice of India or his nominee.
    • The court emphasized that the appointment process should ensure the independence of the Election Commission and be free from executive interference.

    Why such move?

    • The ruling will bring more transparency and accountability to the appointment process of the CEC.
    • It will prevent any undue influence by the ruling government in the appointment of the CEC.
    • The ruling also reinforces the importance of an independent Election Commission in ensuring the fairness of the democratic process in India.

    Why did the SC debate the issue?

    • In 2015, a PIL was filed challenging the constitutional validity of the practice of the Centre appointing members of the Election Commission.
    • In October 2018, a two-judge bench of the SC referred the case to a larger bench since it would require a close examination of Article 324 of the Constitution.

    What is the challenge?

    Article 324(2) states that the President appoints the Chief Election Commissioner and other Election Commissioners, subject to any law made by Parliament.

    • Absence of law: The crux of the challenge is that since there is no law made by Parliament on this issue.
    • Urge for judicial intervention: The Court must step in to fill the constitutional vacuum, urges the PIL.
    • Question of executive non-interference: This examination also leads to the larger question of separation of powers and if the judiciary is overstepping its role in filling this gap in the law.

    About Election Commission of India

    • The ECI is a constitutional authority whose responsibilities and powers are prescribed in the Constitution of India under Article 324.
    • In the performance of its functions, the Election Commission is insulated from executive interference.
    • It is the Commission that decides the election schedules for the conduct of elections, whether general elections or by-elections.
    • ECI decides on the location of polling stations, assignment of voters to the polling stations, location of counting centres, arrangements to be made in and around polling stations and counting centres and all allied matters.

    Litigations against EC

    • The decisions of the Commission can be challenged in the High Court and the Supreme Court of India by appropriate petitions.
    • By long-standing convention and several judicial pronouncements, once the actual process of elections has started, the judiciary does not intervene in the actual conduct of the polls.

    Why is EC under lens these days?

    • Executive interference: ECs are expected to maintain distance from the executive — a constitutional safeguard to insulate the commission from external pressure and allow it to continue as an independent authority.
    • Violating official channels: The EC’s communication with the Government on election matters is through the bureaucracy — either with its administrative ministry — the Law Ministry or the Home Ministry.
    • Breach of protocol: The Law Ministry spells the fine print on law for the country and is expected not to breach the constitutional safeguard provided to the commission to ensure its autonomy.

    Recent incidence of criticisms

    Ans. Partiality in Elections

    • Over the last couple of years, several actions and omissions of the commission have come in for criticism.
    • Nearly 66 former bureaucrats in a letter addressed to the President, expressed their concern over the working of the Election Commission.
    • They felt was suffering from a credibility crisis, citing various violations of the model code of conduct during the 2019 Lok Sabha Elections.

    Importance of ECI for India

    • Conduction of Election: The ECI has been successfully conducting national as well as state elections since 1952.
    • Electoral participation: In recent years, however, the Commission has started to play a more active role to ensure greater participation of people.
    • Discipline of political parties: It had gone to the extent of disciplining the political parties with a threat of derecognizing if the parties failed in maintaining inner-party democracy.
    • Upholds federalism: It upholds the values enshrined in the Constitution viz, equality,
      equity, impartiality, independence; and rule of law in superintendence, direction, and control over electoral governance.
    • Free and fair elections: It conducts elections with the highest standard of credibility, freeness, fairness, transparency, integrity, accountability, autonomy and professionalism.

    Issues with ECI

    • Flaws in the composition: The Constitution doesn’t prescribe qualifications for members of the EC. They are not debarred from future appointments after retiring or resigning.
    • No security of tenure: Election commissioners aren’t constitutionally protected with the security of tenure.
    • Partisan role: The EC has come under the scanner like never before, with increasing incidents of breach of the Model Code of Conduct in the 2019 general elections.
    • Political favor: The opposition alleged that the ECI was favoring the ruling party by giving a clean chit to the model code of conduct violations made by the PM.
    • Non-competence: Increased violence and electoral malpractices under influence of money have resulted in political criminalization, which ECI is unable to arrest.

     

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  • Role of Whip in Indian Polity

    whip

    Central idea: The article aims to demystify the concept of whip and provide clarity on its role and importance in the functioning of state assemblies and parliament in India.

    Who is a Whip?

    • A whip is an official of a political party whose task is to ensure party discipline in a legislature.
    • This means ensuring that members of the party vote according to the party platform, rather than according to their own individual ideology or the will of their donors or constituents.
    • Whips are the party’s “enforcers”.
    • They try to ensure that their fellow political party legislators attend voting sessions and vote according to their party’s official policy.
    • Members who vote against party policy may “lose the whip”, effectively expelling them from the party.

    Whips in India

    • In India, the concept of the whip was inherited from colonial British rule.
    • Every major political party appoints a whip who is responsible for the party’s discipline and behaviors on the floor of the house.
    • Usually, they direct the party members to stick to the party’s stand on certain issues and directs them to vote as per the direction of senior party members.

    What happens if a whip is disobeyed?

    • A legislator may face disqualification proceedings if she/he disobeys the whip of the party unless the number of lawmakers defying the whip is 2/3rds of the party’s strength in the house.
    • Disqualification is decided by the Speaker/Chairman of the house.

    Limitations of whip

    • There are some cases such as Presidential elections where whips cannot direct a Member of Parliament (MP) or Member of the Legislative Assembly (MLA) to vote in a particular fashion.

    Types of whips

    There are three types of whips or instructions issued by the party

    • One-line whip: One-line whip is issued to inform members of a party about a vote. It allows a member to abstain in case they decide not to follow the party line.
    • Two-line whip: Two-line whip is issued to direct the members to be present in the House at the time of voting.
    • Three-line whip: Three-line whip is issued to members directing them to vote as per the party line.

    Need for Whips

    • Collective decision-making: The need for a whip arises from the fact that political parties operate on the principle of collective decision-making.
    • Fulfill election promises: The whip ensures that the party’s agenda is advanced, and its promises to the electorate are fulfilled, which is essential for the functioning of a healthy democracy.
    • Maintain policy cohesiveness: This requires the party to work together as a cohesive unit and ensure that its members vote in a coordinated manner on important legislative matters.
    • Address differing opinions: There may be disagreements and differing opinions on certain matters, and this can lead to disunity and chaos within the party.
    • Ensure party discipline: To prevent such situations, political parties appoint whips who are responsible for ensuring party discipline and ensuring that all members vote in accordance with the party’s position.

    Conclusion

    • The whip’s role is therefore crucial in maintaining party discipline and facilitating the smooth functioning of legislative business.
    • Without a whip, it would be difficult for parties to ensure that their members vote in a coordinated manner, and this could lead to legislative gridlock and inefficiency.

     

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  • What is the ‘Right to be Forgotten’?

    forgotten

    A doctor has requested the Delhi High Court to enforce his ‘Right to Be Forgotten,’ which includes removing news articles and other content related to his “wrongful arrest.”

    What is the “Right to Be Forgotten” Law?

    • The “Right to Be Forgotten” law is a legal concept that allows individuals to request the removal of their personal information from the internet.
    • It is based on the idea that individuals have a right to privacy and control over their personal data.
    • The law has been implemented in various forms in different countries, including the European Union, Argentina, and South Korea.

    What are the origins of this Right?

    • The Right to be Forgotten was first established by the European Court of Justice in 2014 in the case of “Google Spain SL, Google Inc v Agencia Española de ProtecciĂłn de Datos, Mario Costeja GonzĂĄlez”.
    • The case was about a Spanish man who wanted to remove a 1998 advertisement about his home being repossessed.
    • The Right to be Forgotten was later included in the EU’s General Data Protection Regulation (GDPR), along with the right to erasure.
    • Article 17 of the GDPR outlines the right to erasure and provides certain conditions when the right can be restricted.

    How does it work?

    • The “Right to Be Forgotten” law allows individuals to request the removal of their personal information from search engine results, social media platforms, and other websites.
    • The request must be made to the data controller, who is responsible for managing the personal data.
    • The data controller then evaluates the request and decides whether to remove the information or not.
    • If the request is denied, the individual can appeal the decision to the relevant regulatory authority.

    Criticisms of the law

    • Critics argue that the law undermines freedom of expression and the public’s right to access information.
    • They also claim that the law is difficult to enforce and can lead to the censorship of legitimate information.
    • Others argue that the law is too narrow in scope and does not provide adequate protection for individuals’ privacy.

    Future of the law

    • The “Right to Be Forgotten” law is still a relatively new legal concept, and its future is uncertain.
    • It is likely that the law will continue to evolve as courts and regulators grapple with its complexities.
    • In the meantime, individuals should be aware of their rights and take steps to protect their personal data online.

    What is the law on the Right to be Forgotten?

    • Section 43A of the IT Act, 2000 says that organizations who possess sensitive personal data and fail to maintain appropriate security to safeguard such data, resulting in wrongful loss or wrongful gain to anyone, may be obligated to pay damages to the affected person.
    • IT Rules, 2021 do not include this right, they do however, lay down the procedure for filing complaints with the designated Grievance Officer so as to have content exposing personal information about a complainant removed from the internet.

    Judicial precursor to the issue

    • The Right to be Forgotten is not explicitly recognized by Indian law, but it has been considered part of an individual’s Right to Privacy under Article 21 by Indian courts since the 2017 ruling in “K.S.Puttaswamy vs Union of India“.
    • The court acknowledged that this right may be restricted by the right to freedom of expression and information or legal obligations.
    • In 2021, the Delhi High Court directed online platforms to remove publicly available records of a case against an American citizen under the Narcotics Drugs and Psychotropic Substances Act, 1985, who argued that it was affecting his employment prospects.

     

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  • Section 153A: its use and misuse

    153

    Central idea: A politician was recently arrested under Section 153A of IPC for the alleged use of objectionable words against the Prime Minister.

    Section 153A: What the law says

    • Section 153A of the Indian Penal Code (IPC) penalises “promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony”.
    • This is punishable with imprisonment up to three years, or with fine, or with both.
    • The provision was enacted in 1898 and was not in the original penal code.
    • At the time of the amendment, promoting class hatred was a part of the English law of sedition, but was not included in the Indian law.

    Charges laid for remarks against PM

    The FIR mentioned the use of Sections-

    • 153B(1) (Making imputations, assertions prejudicial to national integration);
    • 295A (Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs);
    • 500 (Defamation); and
    • 504 (Intentional insult with intent to provoke breach of the peace).

    Conviction rates under Section 153A

    • Data from the National Crime Records Bureau (NCRB) show that the rate of conviction for Section 153A is very low.
    • In 2020, 1,804 cases were registered, six times higher than the 323 cases in 2014.
    • However, the conviction rate in 2020 was 20.2%, suggesting that the process often becomes the punishment.

    Issues with the law

    • Hate speech laws have been invoked under regimes of all parties to crack down on criticism of public functionaries and to arrest individuals.
    • The invocation of Section 153A is often criticized for restricting free speech and misusing the legal processes for political purposes.

    Safeguards against misuse

    • Given that the provisions are worded broadly, there are safeguards against its misuse.
    • For example, Sections 153A and 153B require prior sanction from the government for initiating prosecution.
    • But this is required before the trial begins, and not at the stage of preliminary investigation.
    • To curb indiscriminate arrests, the Supreme Court laid down a set of guidelines in its 2014 ruling in Arnesh Kumar v State of Bihar.
    • As per the guidelines, for offenses that carry a sentence of fewer than seven years, the police cannot automatically arrest an accused before investigation.

     

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  • What is a Caveat in Judiciary?

    Recently, the Supreme Court bench reprimanded a law student for filing a caveat in a petition seeking menstrual leave for female students and working women across Indian institutions.

    What is a Caveat?

    • In common parlance, a caveat refers to “warning” or “caution”.
    • However, legally it connotes a “formal notice requesting the court to refrain from taking some specified action without giving prior notice to the person lodging the caveat.”
    • The person lodging the caveat is called a “caveator”.
    • The provision was inserted by the Amendment Act of 1976 after the Law Commission’s recommendation by Section 148A of the Civil Procedure Code (CPC).
    • However, the term is not expressly defined anywhere except in the Calcutta High Court’s 1978 ruling.

    Who can fill the Caveat?

    • Any person has a right to lodge a caveat in a Court.
    • Any person claiming a right to appear before the Court on the hearing of such application may lodge a caveat in respect thereof.
    • The caveator or the person lodging is also required to serve a notice of the caveat by “registered post” to the person on whose plea they are lodging the application

     

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  • Anti-defection Law and The Loopholes

    defection

    Central Idea

    • On February 17, the Election Commission of India (ECI) allotted the name ‘Shiv Sena’ and the party’s Bow and Arrow symbol to Maharashtra Chief Minister Eknath Shinde’s faction, in effect recognizing it as the original party founded by Babasaheb Thackeray.  Strengthening Anti-defection law becomes relevant again.

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    Background: The most dramatic and unique political crisis

    • Division in the party: The political crisis in Maharashtra began last year after a group of 40 of the 55 Sena MLAs walked out of the Maha Vikas Aghadi (MVA) alliance under the leadership of Mr. Shinde, which caused a division in the party.
    • Fight of Name and Symbol: Both the Uddhav Thackeray and Shinde sides staked claim to the party name and symbol, each claiming to represent the real Shiv Sena.
    • The ECI said that it had based its decision on a test of majority: It said the group of MLAs supporting the Shinde faction got nearly 76% of the votes polled for the 55 winning Shiv Sena candidates in the 2019 Maharashtra Assembly elections, while the Uddhav Thackeray faction got 23.5% of votes.

    Exam Spotlight

    • The crisis has thrown the spotlight once again on the anti-defection law, whose purpose is to prevent political defections.

    What is Anti-defection Law?

    • Tenth Schedule: 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.
    • Power to the speaker: It gives the Speaker of the legislature the power to decide the outcome of defection proceedings.
    • 52nd Amendment Act, 1985: 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.

    What was the need to have this law then?

    1. Vies in favour
    • Defection was recognized as an evil that needed to be curbed: Defections cause destabilization and lead to governments falling, which can have negative impacts on the country’s political and economic stability.
    • Law helps to stabilise party system: The law helps to stabilize party systems by consolidating control of the party leadership instead of relying on ideological cohesion or ownership by constituent legislators.
    1. Views against it
    • Law would curb freedom of opinion of the representatives: Some people thought that the law would curb freedom of speech and affect the free exercise of opinion by the members of the legislature who are elected by the people.
    • Undermines the representative system of democracy: The law effectively does away with the representative system of democracy in India by framing democracy as a contest between factions rather than a system of representation and accountability.
    • Limiting the ability of legislators: The law consolidates power in the hands of the party leadership, potentially limiting the ability of individual legislators to represent their constituents’ interests.

    How the law is faring today?

    • Recent events shows that the law needs to be tightened: The kinds of defections which used to take place before the passing of this law are not taking place now. But recent events show that this law needs to be tightened.
    • Third paragraph of tenth schedule was deleted: A little tightening was done earlier by doing away with a split, that is, paragraph three of the Tenth Schedule of the Constitution. It had said, if there is a split in a particular party, and one-third of the legislators move along with the breakaway group, they will not be disqualified. So, split was a defence against disqualification.
    • No authoritative interpretation of the law: there is a very disturbing trend, which is to interpret paragraph four (decision on questions as to disqualification on ground of defection) in a particular way, because there is no authoritative declaration of law from the Supreme Court on the exact application of it.
    • No timeline fixed for the Speaker: In the 10th Schedule currently, there is no timeline fixed for the Speaker to determine the issue and the purpose of this anti-defection law is defeated.

    Conclusion

    • People are principal stakeholders in a democracy; parties are merely the institutional intermediaries. Democracy needs stable parties, but controlling legislators removes their representative role. Need of the hour is to fix the loopholes in the system because the continuous cycle of instability adversely affects the people, who are the primary stakeholders in a democracy and suffer the most.

    Mains Question

    Q. The events of spilt within the political are rising posing a challenge to the Anti defection law In this backdrop discuss the need of Anti defection law?

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