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Subject: Polity

  • Set time limit to Governor to grant assent to Bills: TN urges Centre

    governor

    Central idea: The Tamil Nadu Legislative Assembly passed a resolution urging the Union Government to issue appropriate instructions to Governor to give his assent to bills passed by the Assembly within a specific period.

    Who is Governor?

    • Parallel to President: The Governors of the states of India have similar powers and functions at the state level as those of the President of India at the Central level.
    • Nominal head: The governor acts as the nominal head whereas the real power lies with the Chief Ministers of the states and her/his councils of ministers.
    • Similar offices: Governors exist in the states while Lieutenant Governors or Administrators exist in union territories including the National Capital Territory of Delhi.
    • Non-local appointees: Few or no governors are local to the state that they are appointed to govern.

    Governor-State Relations: How are they guided?

    • Acting on aid and advice: Although envisaged as an apolitical head who must act on the advice of the council of ministers, the Governor enjoys certain powers granted under the Constitution.
    • Discretion: He has monopoly for giving or withholding assent to a Bill passed by the state legislature, or determining the time needed for a party to prove its majority, or which party must be called first do so, generally after a hung verdict in an election.
    • Apparatus of interaction: There are no provisions laid down for the manner in which the Governor and the state must engage publicly when there is a difference of opinion. The management of differences has traditionally been guided by respect for each other’s boundaries.

    Role of Governor in Legislature

    • Integral part: A Bill passed by the State Assembly becomes law only after it is assented to by the Governor. The Governor being a part of the State legislature, the process of law making is complete only when he signs it, signifying his assent.
    • Established practice: In all democratic countries, similar provision exists in their constitutions.

    Power of Governor vis-a-vis legislature

    • What Article 200 says: The Constitution provides certain options for the Governor to exercise when a Bill reaches him from the Assembly.
    • There are four possible scenarios:
    1. Assent: He may give assent.
    2. Reconsider: He can send it back to the Assembly requesting it to reconsider some provisions of the Bill, or the Bill itself. In this case, if the Assembly passes the Bill without making any change and sends it back to the Governor, he will have to give assent to it.
    3. Reserve: The third option is to reserve the Bill for the consideration of the President.
    4. Withhold: The fourth option, of course, is to withhold the assent.

    Why there is ambiguity over the role of governors in India?

    • Role of the governor: The question of whether a Governor is permitted by the Constitution to cause uncertainty in the matter of giving assent to the Bills passed by State legislatures assumes great importance.
    • Presidential Assent: The provision concerned makes it clear that a Bill can be reserved for the consideration of the President only if the Governor forms an opinion that the Bill would endanger the position of the High Court by whittling away its powers. The Constitution does not mention any other type of Bill which is required to be reserved for the consideration of the President.
    • Constitution is silent: the Constitution does not mention the grounds on which a Governor may withhold assent to a Bill.
    • No remedy: The Indian Constitution, however, does not provide any such remedy as that of USA or UK. The courts too have more or less accepted the position that if the Governor withholds assent, the Bill will go. Thus, the whole legislative exercise will become fruitless. It does not square with the best practices in old and mature democracies.

    Various friction points

    In recent years, these have been largely about:

    1. Selection of the party to form a government
    2. Deadline for proving the majority
    3. Sitting on Bills
    4. Withhold of assents
    5. Passing negative remarks on the state administration

    Why does this happen?

    • Political appointment: This is because Governors have become political appointees. Politicians become Governors and then resign to fight elections.
    • Nature of appointment: In the Constitution, there are no guidelines for exercise of the Governor’s powers, including for appointing a CM or dissolving the Assembly.
    • Defying constituent assembly: The Constituent Assembly envisaged governor to be apolitical.
    • Nature of appointment: The CM is answerable to the people. But the Governor is answerable to no one except the Centre.
    • Constitutional vacuum: Once can sugercoat it with ideas of constitutional morality and values, but the truth is there is a fundamental defect in the Constitution.
    • Security of Tenure: There is no provision for impeaching the Governor, who is appointed by the President on the Centre’s advice. While the Governor has 5-year a tenure, he can remain in office only until the pleasure of the President.
    • Powers in legislation: There is no limit set for how long a Governor can withhold assent to a Bill.

    What reforms have been suggested?

    • From the Administrative Reforms Commission of 1968 to Sarkaria Commission of 1988 and the one mentioned above, several panels have recommended reforms, such as:
    1. Selection of the Governor through a panel comprising the PM, Home Minister, Lok Sabha Speaker and the CM,
    2. Fixing his tenure for five years
    3. Provision to impeach the Governor by the Assembly
    • No government has implemented any of these recommendations.

     

  • How is a ‘National Party’ in India defined?

    The Election Commission of India recognised the Aam Aadmi Party (AAP) as a national party, while revoking the status of the All India Trinamool Congress, Nationalist Congress Party (NCP) and the Communist Party of India (CPI).

    What is National Party?

    • The name suggests that a national party would be one that has a presence ‘nationally’, as opposed to a regional party whose presence is restricted to only a particular state or region.
    • National parties are usually India’s bigger parties.
    • However, some smaller parties, like the communist parties, are also recognised as national parties in India.
    • A certain stature is sometimes associated with being a national party, but this does not necessarily translate into having a lot of national political clout.

    How is a political party defined?

    The ECI’s Political Parties and Election Symbols, 2019 handbook species following criteria:

    National Party Definition

    For recognition as a “National Party” in India, the conditions specified are:

    1. a 6% vote share in the last Assembly polls in each of any four states, as well as four seats in the last Lok Sabha polls; or
    2. 2% of all Lok Sabha seats in the last such election, with MPs elected from at least three states; or
    3. Recognition as a state party in at least four states.

    For recognition as a “State Party”, any one of five conditions needs to be satisfied:

    1. two seats plus a 6% vote share in the last Assembly election in that state; or
    2. one seat plus a 6% vote share in the last Lok Sabha election from that state; or
    3. 3% of the total Assembly seats or 3 seats, whichever is more; or
    4. one of every 25 Lok Sabha seats (or an equivalent fraction) from a state; or
    5. an 8% state-wide vote share in either the last Lok Sabha or the last Assembly polls.

    Benefits for recognized National Parties in India

    • This is subject to the fulfillment of the conditions prescribed by the Commission in the Election Symbols (Reservation and Allotment) Order, 1968.

    (a) Reserved Symbol

    • If a party is recognised as a ‘state party’, it is entitled for exclusive allotment of its reserved symbol to the candidates set up by it in the state in which it is so recognised.
    • If a party is recognised as a ‘national party’ it is entitled for exclusive allotment of its reserved symbol to the candidates set up by it throughout India.

    (b) Proposer for nomination

    • Recognised ‘state’ and ‘national’ parties in India need only one proposer for filing the nomination.

    (c) Campaigning benefits

    • National Parties in India are also entitled for two sets of electoral rolls free of cost and broadcast/telecast facilities over state-owned Akashvani/Doordarshan during the general elections.

     

  • 16th Finance Commission to be constituted in November

    The Union government is gearing up to constitute the Sixteenth Finance Commission in November this year to recommend the formula for sharing revenues between the Centre and the States for the five-year period beginning 2026-27.

    What is the Finance Commission?

    • The Finance Commission (FC) was established by the President of India in 1951 under Article 280 of the Indian Constitution.
    • It was formed to define the financial relations between the central government of India and the individual state governments.
    • The Finance Commission (Miscellaneous Provisions) Act, 1951 additionally defines the terms of qualification, appointment and disqualification, the term, eligibility and powers of the Finance Commission.
    • As per the Constitution, the FC is appointed every five years and consists of a chairman and four other members.
    • Since the institution of the First FC, stark changes in the macroeconomic situation of the Indian economy have led to major changes in the FC’s recommendations over the years.

    Constitutional Provisions

    Several provisions to bridge the fiscal gap between the Centre and the States were already enshrined in the Constitution of India, including Article 268, which facilitates levy of duties by the Centre but equips the States to collect and retain the same.

    Article 280 of the Indian Constitution defines the scope of the commission:

    1. Who will constitute: The President will constitute a finance commission within two years from the commencement of the Constitution and thereafter at the end of every fifth year or earlier, as the deemed necessary by him/her, which shall include a chairman and four other members.
    2. Qualifications: Parliament may by law determine the requisite qualifications for appointment as members of the commission and the procedure of selection.
    3. Terms of references: The commission is constituted to make recommendations to the president about the distribution of the net proceeds of taxes between the Union and States and also the allocation of the same among the States themselves. It is also under the ambit of the finance commission to define the financial relations between the Union and the States. They also deal with the devolution of unplanned revenue resources.

    Important functions

    • Devolution of taxes: Distribution of net proceeds of taxes between Center and the States, to be divided as per their respective contributions to the taxes.
    • Grants-in-aid: Determine factors governing Grants-in-Aid to the states and the magnitude of the same.
    • Augment states fund: To make recommendations to the president as to the measures needed to augment the Fund of a State to supplement the resources of the panchayats and municipalities in the state on the basis of the recommendations made by the finance committee of the state.
    • Any financial function: Any other matter related to it by the president in the interest of sound finance.

    Members of the Finance Commission

    • The Finance Commission (Miscellaneous Provisions) Act, 1951 was passed to give a structured format to the finance commission and to bring it to par with world standards.
    • It laid down rules for the qualification and disqualification of members of the commission, and for their appointment, term, eligibility and powers.
    • The Chairman of a finance commission is selected from people with experience of public affairs. The other four members are selected from people who:
    1. Are, or have been, or are qualified, as judges of a high court,
    2. Have knowledge of government finances or accounts, or
    3. Have had experience in administration and financial expertise; or
    4. Have special knowledge of economics

    Key challenges ahead for 16th FC

    • Overlap with GST Council: A key new challenge for the 16th FC would be the co-existence of another permanent constitutional body, the GST Council.
    • Conflict of interest: The GST Council’s decisions on tax rate changes could alter the revenue calculations made by the Commission for sharing fiscal resources.
    • Feasibility of recommendations: Centre usually takes the Commission’s recommendations on States’ share of tax devolution and the trajectory for fiscal targets into account, and ignores most other suggestions.

    Major outstanding recommendations

    • Creating a Fiscal Council: The 15th FC has suggested creating a Fiscal Council where Centre and States collectively work out India’s macro-fiscal management challenges, but the government has signalled there is no need for it, he pointed out.
    • Creating a non-lapsable fund for internal security: The centre accepted to set up a non-lapsable fund for internal security and defense ‘in principle’, its implementation still has to be worked out.

  • 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.