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Subject: Polity

  • Back in news: Collegium System

    collegium

    The Centre has told the Supreme Court that it would soon clear five names that were recommended by the collegium for appointment of judges in the apex court.

    What is Collegium System?

    • The Collegium of judges is the Indian Supreme Court’s invention.
    • It does not figure in the Constitution, which says judges of the Supreme Court and High Courts are appointed by the President and speaks of a process of consultation.
    • In effect, it is a system under which judges are appointed by an institution comprising judges.
    • After some judges were superseded in the appointment of the CJI in the 1970s, and attempts made subsequently to effect a mass transfer of High Court judges across the country.
    • Hence there was a perception that the independence of the judiciary was under threat. This resulted in a series of cases over the years.

    Evolution: The Judges Cases

    • First Judges Case (1981) ruled that the “consultation” with the CJI in the matter of appointments must be full and effective.
    • However, it rejected the idea that the CJI’s opinion, albeit carrying great weight, should have primacy.
    • Second Judges Case (1993) introduced the Collegium system, holding that “consultation” really meant “concurrence”.
    • It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the Supreme Court.
    • Third Judges Case (1998): On a Presidential Reference for its opinion, the Supreme Court, in the Third Judges Case (1998) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

    The procedure followed by the Collegium

    Appointment of CJI

    • The President of India appoints the CJI and the other SC judges.
    • As far as the CJI is concerned, the outgoing CJI recommends his successor.
    • In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
    • The Union Law Minister forwards the recommendation to the PM who, in turn, advises the President.

    Other SC Judges

    • For other judges of the top court, the proposal is initiated by the CJI.
    • The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
    • The consultees must record their opinions in writing and it should form part of the file.
    • The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.

    For High Courts

    • The CJs of High Courts are appointed as per the policy of having Chief Justices from outside the respective States. The Collegium takes the call on the elevation.
    • High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
    • The proposal, however, is initiated by the Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
    • The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.

    Does the Collegium recommend transfers too?

    • Yes, the Collegium also recommends the transfer of Chief Justices and other judges.
    • Article 222 of the Constitution provides for the transfer of a judge from one High Court to another.
    • When a CJ is transferred, a replacement must also be simultaneously found for the High Court concerned. There can be an acting CJ in a High Court for not more than a month.
    • In matters of transfers, the opinion of the CJI “is determinative”, and the consent of the judge concerned is not required.
    • However, the CJI should take into account the views of the CJ of the High Court concerned and the views of one or more SC judges who are in a position to do so.
    • All transfers must be made in the public interest, that is, “for the betterment of the administration of justice”.

    Need for Collegium System

    • Collegium system increases secrecy: Ruma Pal, a former Judge of the Supreme Court of India, stated that this system is one of the best kept secret in the country. It kept secret within the four walls of the body for proper and effective functioning of the institution that makes the system opaque.
    • Political non-interference: The collegium system makes Judiciary independent from the politics. It separates the judiciary from the influence of executive and legislative. With the Govt’s influence judiciary can work without any fear and any sort of favour. This ensures the regulation of the doctrine of separation of power.
    • Ensures merit: The executive organ is not specialist or does not have the knowledge regarding the requirements of the Judge as comparative to the CJI. Collegium system ensures that the deserving one is sitting in the position of the Judge in Supreme Court.

    Loopholes in the Collegium system

    • Lack of Transparency: Opaqueness and a lack of transparency, and the scope for nepotism are cited often.
    • Judges appointing Judge: The attempt made to replace it with a ‘National Judicial Appointments Commission’ was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.
    • Criteria: Some do not believe in full disclosure of reasons for transfers, as it may make lawyers in the destination court chary of the transferred judge.

    A critical assessment

    • No guidelines framework: This system does not provide any guidelines in selecting the candidates for the judge position of the Supreme Court because of which it leads to wide scope for the nepotism and favoritism.
    • No checks and balances: This system gives the immense power to Judiciary to appoint Judges, so the check on the excessive powers would not be ensured and misuse of powers can be done.
    • Judiciary is nowhere accountable: The collegium system is not accountable to any administrative body that may lead to wrong choice of the candidate while overlooking the right candidate.
    • Huge workload leaves no room: Already there are many cases pending in the Court, they are having limited time the power given to them for the appointment would lead to burden to Judiciary.
    Former Chief Justice of Australia, Sir Harry Gibbs, are worth-quoting:

    Judicial commissions, advisory Committees and procedures for consultation [with the Chief Justice] will be useless unless there exists, among the politicians of all parties, a realization that the interest of the community requires that neither political nor personal patronage nor a desire to placate any section of a society, should play any part in making judicial appointments.

    Some feasible measures that can be incorporated

    • Ensure non-vetoing representatives: To ensure the effectiveness of this mechanism the commission should be representative in nature comprising members of the executive, legislature, judiciary, legal profession and lay persons.
    • Info share in public domain: In addition, it should be ensured that the commission uses a system which is transparent and open to public scrutiny.

    Way ahead

    • In respect of appointments, there has been an acknowledgment that the “zone of consideration” must be expanded to avoid criticism that many appointees hail from families of retired judges.
    • The status of a proposed new memorandum of procedure, to infuse greater accountability, is also unclear.
    • Even the majority opinions admitted the need for transparency, now Collegiums’ resolutions are now posted online, but reasons are not given.

    Conclusion

    • All mechanisms for judicial appointment may have some advantages and disadvantages and therefore, no particular system can be treated as the best system.
    • Despite this, in order to maintain public confidence in the appointment system and to ensure judicial independence the commission system is perhaps a very effective mechanism for judicial appointment.

     

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  • No bar on contesting two seats in one poll: Supreme Court

    The Supreme Court has refused to set aside a provision in the election law that allows candidates to contest polls from two constituencies simultaneously.

    What is the issue?

    • The petition had sought the court to declare Section 33(7) of the Representation of People Act invalid and ultra vires.
    • Like one-person-one-vote, one-candidate-one-constituency is the dictum of democracy, argued the petition.

    What did the SC say?

    • This is a policy matter and an issue concerning political democracy.
    • It is for the Parliament to take a call, CJI observed.

    Provision for contesting polls from two constituency

    • Under section 33 (7) of the RPA, 1951, a person is allowed to contest polls, whether a general election, more than one by-elections or biennial elections, from a maximum of two seats.
    • Before this law, candidates could run in any number of constituencies.
    • If candidates win both seats, they must vacate one within 10 days, triggering a by-election, as stated under section 70 of the Act.
    • Under the Constitution, an individual cannot simultaneously be a member of either House of Parliament (or a state legislature), or both Parliament and a state legislature, or represent more than one seat in a House.

    Issues with two polls provision

    • Issues with twin victories: There have been cases where a person contests election from two constituencies, and wins from both. In such a situation he vacates the seat in one of the two constituencies.
    • Expenses of bye-election: The consequence is that a by-election would be required from one constituency involving avoidable expenditure on the conduct of that bye-election.

    ECI supports one-candidate-one-constituency

    • The Election Commission had, in an affidavit in 2018, supported the petition.
    • It had informed the Supreme Court that it had proposed an amendment to Section 33(7) in July 2004.

    Way ahead

    • Heavy election deposits: A candidate should deposit an amount of ₹5 lakh for contesting in two constituencies in an Assembly election or ₹10 lakh in a general election.
    • Recurring election expenses: The amount would be used to cover the expenses for a by-election in the eventuality that he or she was victorious in both constituencies and had to relinquish one.

     

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  • Is Judicial Majoritarianism justified?

    As the recent majority judgment of the Supreme Court on demonetization comes under criticism, the minority judgment by J. Nagarathna is being hailed for its challenge to the RBI’s institutional acquiescence (reluctant acceptance) to the Central government.

    What is Judicial Majoritarianism?

    • Numerical majorities are of particular importance to cases which involve a substantial interpretation of constitutional provisions.
    • The requirement for a majority consensus flows from Article 145(5) of the Constitution which states that no judgment in such cases can be delivered except with the concurrence of a majority.
    • It also provides for judges to freely deliver dissenting judgments or opinions.
    • In important cases, Constitutional Benches, consisting of five or more judges, are set up in consonance with Article 145(3) of the Constitution.
    • Such Benches usually consist of five, seven, nine, 11 or even 13 judges.

    Why in news?

    • Blind acceptance: This situation raises questions with respsect to our blind acceptance of numerical majority judgements.
    • Disregard for dissent: This flags issues in judicial decision-making and the constitutional disregard of analysis and appreciation of arguments and evidence in dissenting judgments.
    • Merits of dissent: Analysts now seek to challenge the weightage given to numerical majorities in judicial decisions by our Constitutional Courts as opposed to the merits in their reasoning.

    CASE STUDY: “Why Do Bare Majorities Rule on Courts?”

    • Jeremy Waldron has dealt with this concept at length in his work titled ‘Five to Four: Why Do Bare Majorities Rule on Courts?’.
    • He proffers that the arguments which are made in defense of judicial majoritarianism cannot explain or justify our adherence to majority decisions –

    1.      Efficiency through ease of decision-making;

    2.      Epistemic objectivity through majority adherence; and

    3.      Equality through fairness,

    • He questions why is it that the judges too have to resort to head counting in order to resolve disagreements amongst judges.

     

    Heart of the debate: Why do experts need to resort to ‘majority’?

    • Defiance of merit: A meritorious minority decision, irrespective of the impeccability of its reasoning receives little weightage in terms of its outcomes.
    • Complex situations: All judges on a particular Bench give their rulings on the same set of facts, laws, arguments and written submissions.
    • Nature of bias: Judicial hunches may be an outcome of subjective experiences, outlooks, perceptions, prejudices and biases.

    Narrow margin: Some meritorious dissents in India

    Our Constitutional history is replete with such meritorious dissents-

    • The dissenting opinion of Justice H.R. Khanna in A.D.M. Jabalpur v. Shivkant Shukla (1976) upholding the right to life and personal liberty even during situations of constitutional exceptionalism is a prime example.
    • Another example is the dissenting opinion of Justice Subba Rao in the Kharak Singh v. State of U.P. (1962) case upholding the right to privacy which received the judicial stamp of approval in the K.S. Puttaswamy v. UOI (2017) case.
    Do you know?

    The Kesavananda Bharati verdict (1973) was divided 7–6 majority. And 4 other judges to bench refused to sign the Judgment! It is almost like the Basic Structure Doctrine was rejected. It should have had an overwhelming majority.

     

    Way forward

    • Weightage-based assent in judgments: Ronald Dworkin proffers a system that may either give more weightage to the vote of senior judges given that they have more experience or to the junior judges as they may represent popular opinion better.
    • Doing away with headcounts: Such alternatives, however, can only be explored once we identify and question the premises and rationales which underlie head-counting in judicial decision-making.
    • Imbibe critical discourse: The absence of a critical discourse on judicial majoritarianism represents one of the most fundamental gaps in our existing knowledge regarding the functioning of our Supreme Court.
    • Cases to expert benches: As pending Constitutional Bench matters are listed for hearing and judgments are reserved, we must reflect upon the arguments of judicial majoritarianism on the basis of which these cases are to be decided.

    Conclusion

    • There is a need to reflect upon the concept of judicial majoritarianism.
    • The academic discourse on this aspect is still nascent and developing.

     

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  • Who is a Puisne Judge, and what does the term mean?

    While recommending two names for appointment as judges of the Supreme Court, the Collegium headed by Chief Justice of India D Y Chandrachud said that the collegium had taken into “consideration the seniority of Chief Justices and senior puisne Judges…”

    Who are Puisne Judge?

    • According to the dictionary, the word puisne has French origins, which means “later born” or younger.
    • It is pronounced / “puny”, the English word that means small or undersized.
    • Puisne is almost always used in the context of judges, and essentially denotes seniority of rank.
    • The term puisne judge is used in common law countries to refer to judges who are ranked lower in seniority, i.e., any judge other than the Chief Justice of that court.

    Now again, what is common law?

    • Common law is the body of law that is created by judges through their written opinions, rather than through statutes or constitutions (statutory law).
    • Common law, which is used interchangeably with ‘case law’, is based on judicial precedent.
    • The United Kingdom (UK) and the Commonwealth countries, including India, are common law countries.

    Legal reference to Puisne Judges

    In the Third Judges Case ruling in 1998, one of the two cases that led to the evolution of the collegium system, the Supreme Court clarified that-

    • The CJI must make a recommendation to appoint a Judge of the Supreme Court and to transfer a Chief Justice or puisne Judge of a High Court in consultation with the four seniormost puisne Judges of the Supreme Court.

    Is a “puisne judge” in India the same as in the UK?

    • In the UK, puisne judges are judges other than those holding distinct titles.
    • The Supreme Court of Judicature Act, 1877 defined a “puisne judge” as any judge of the High Court besides the Lord Chancellor, the Lord Chief Justice of England, and the Master of the Rolls.
    • In India, all judges have the same judicial powers.
    • As the seniormost judge of a court, the Chief Justice has an additional administrative role.
    • In India, there is a reference to a puisne judge only while considering the order of seniority for appointments, elevations to High Courts, etc., but it does not have a bearing on the exercise of a judge’s judicial power.

    What is the recent context?

    • The Supreme Court collegium recommended current Chief Justices of the Allahabad and Gujarat High Courts respectively, for appointment as judges of the Supreme Court.
    • While giving reasons for its recommendation, the collegium said that the decision was made taking “into consideration the seniority of Chief Justices and senior puisne Judges in their respective parent High Courts.
    • This was done because seniority is one of the several criteria that are considered while making appointments to the higher judiciary.

     

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  • History, Significance of President’s Address

    president

    President Droupadi Murmu addressed the joint sitting of Parliament for the first time after assuming the position.

    Mains PYQ: The President’s address is one of the most solemn occasions in the Parliamentary calendar. Discuss. Highlight its importance in Parliamentary Democracy. (250W)

    President’s Address: What is the history?

    • United Kingdom: The tradition of the monarch addressing the Parliament began in the 16th century.
    • United States: President Gorge Washington addressed Congress for the first time in 1790.

    President’s Address in India

    (A) Colonial period

    • GoI Act, 1919: In India, the practice of the President addressing Parliament was established after the promulgation of the Government of India Act in 1919.
    • Governor General’s address: This law gave the GG the right of addressing the Legislative Assembly and the Council of State.
    • No joint address: The law did not have a provision for a joint address but the Governor-General did address the Assembly and the Council together on multiple occasions.
    • During constituent assembly: Between 1947 and 1950, there was NO address to the Constituent Assembly (Legislative).

    (B) After the enactment of Constitution

    • After the Constitution came into force, President Rajendra Prasad (after taking over from Dr Sachchidananda Sinha) addressed members of Lok Sabha and Rajya Sabha for the first time on January 31, 1950.
    • When the Constitution came into force, the President was required to address each session of Parliament. The Constitution gave the President and the Governor the power to address a sitting of the legislature.
    1. Article 87: It provides two special occasions on which the President addresses a joint sitting. The first is to address the opening session of a new legislature after a general election. The second is to address the first sitting of Parliament each year. A session of a new or continuing legislature cannot begin without fulfilling this requirement.
    2. Making it an annual affair: So during the provisional Parliament in 1950, President Prasad gave an address before every session. In 1951, the First Amendment to the Constitution changed this and made the President’s address an annual affair.

    What is the procedure and tradition?

    • Motion of Thanks: After the President’s address, the two Houses move a motion to thank the President for her speech.
    • Debate on the speech: This is an occasion for MPs in the two Houses to have a broad debate on governance in the country.
    • PM addresses the questions: The issues raised by MPs are then addressed by the Prime Minister, who also replies to the motion of thanks.
    • Unanimous voting: The motion is then put to vote and MPs can express their disagreement by moving amendments to the motion.
    • Scope for Amendment: Opposition MPs have been successful in getting amendments passed to the motion of thanks in Rajya Sabha on five occasions, including in 1980, 1989, 2001, 2015 and 2016.
    Do you know?

    The Motion of Thanks must be passed in Parliament. Otherwise, it amounts to the defeat of the government. It is one of the ways through which the Lok Sabha can also express a lack of confidence in the government.

    Content of the address

    • There is no set format for the President’s or Governor’s speech.
    • During the making of the Constitution, Prof K T Shah wanted the President’s address to be more specific.
    • He suggested that the language be changed to specify that the President shall inform Parliament “on the general state of the Union including financial proposals, and other particular issues of policy he deems suitable for such address”.
    • His proposal took inspiration from the US Constitution.
    • But the Constituent Assembly didn’t accept Prof Shah’s amendment.

    What is the government’s role?

    • Written by the government: The President’s speech is essentially the govt. viewpoint and is also written by the government itself.
    • Inputs from various ministries: Usually, in December, the Prime Minister’s Office asks the various ministries to start sending in their inputs for the speech.
    • Collation of information: The Ministry of Parliamentary Affairs sends a message, asking ministries to give information about any legislative proposals that need to be included in the President’s address. All this information is collated and shaped into a speech, which is then delivered to the President.
    • Role of Lok Sabha Secretariat: The address is an event, associated with ceremony and protocol, and the Lok Sabha Secretariat makes extensive arrangements for it.

    Significance of the address

    • Policy announcements: The President’s address serves as a platform for the government to make policy and legislative announcements.
    • Report card of the government: It highlights the government’s accomplishments from the previous year and sets the broad governance agenda for the coming year.

    What if the President disagrees with the text of the speech?

    Ans. It is CONSTITUTIONAL OBLIGATION on the President.

    • The President or Governor cannot refuse to perform the constitutional duty of delivering an address to the legislature.
    • But there can be situations when they deviate from the text of the speech prepared by the government.
    • So far, there have been no instances of a President doing so.

    Recent instances of defiance

    Ans. States vs. Governors

    • There have been occasions when a Governor skipped or changed a portion of the address to the Assembly.
    • Most recently, Tamil Nadu’s Governor made changes to the prepared speech he read out in the Assembly.
    • TN Chief Minister had to step in and move a resolution, which demanded that only the original speech given to the Governor be put in records.
    • In 2020, Kerala Governor, during his address to the Assembly, stopped before reading out his speech’s paragraph 18, which related to the Kerala government’s opposition to the Citizenship Amendment Bill.

    Why it is so cherished in democracy?

    • Parliament as a unit: The President’s address is one of the most solemn occasions in the Parliamentary calendar. It is the only occasion in the year when the entire Parliament, i.e. the President, Lok Sabha, and Rajya Sabha come together.
    • Ceremonial event: The event is associated with ceremony and protocol. The Lok Sabha Secretariat prepares extensively for this annual event.
    • Grandeur: In the past, it used to get 150 yards of red baize cloth from the President’s house for the ceremonial procession.

     

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  • Vishakhapatnam is Andhra Pradesh’s new Capital

    vishakha

    Visakhapatnam will be the new capital of Andhra Pradesh, announced the Chief Minister.

    AP’s move for three capitals

    • AP had introduced a ‘Three Capitals Act’ titled Andhra Pradesh Decentralisation and Inclusive Development of All Regions Act, 2020.
    • Thus, it was decided that:
    1. Amaravati was to be the Legislative capital
    2. Visakhapatnam the Executive capital and
    3. Kurnool the Judicial capital
    • However, the Andhra Pradesh High Court repealed this Act citing that the legislature has no competence to enact any law for shifting the three organs of the capital.

    Concerns raised by AP government

    • AP contended that the judgement was in violation of the basic structure of the Constitution as the HC cannot hold that the State does not have the powers to decide on its capital.
    • The judgement was against the doctrine of separation of powers as it sought to preempt the legislature from taking up the issue (of three capitals).
    • Further, it is argued that under the federal structure of the Constitution, every State has an inherent right to determine where it should carry out its capital functions from.

    Reasons for AP’s consideration

    (1) Viable option of Visakhapatnam

    • Vizag always had been the biggest city, after Hyderabad, even in the combined State.
    • It has all the settings to become a good living space.

    (2) Sri Krishna panel recommendations

    • The advantages and qualities of Visakhapatnam to become the capital was elaborately deliberated by the Sri Krishna Committee to study the alternatives for a new capital for the State of Andhra Pradesh.
    • Coming to suggestion for the alternative capital, the Committee primarily took up three things for consideration — creation of single city or super city in greenfield location, expanding existing cities and distributed development.

    (3) Decentralisation

    • This idea was elaborately described in the Sri Bagh pact.
    • The pact clearly defined decentralisation, for the benefit of all three main regions such as Coastal AP, Godavari and Krishna districts and Rayalaseema.

    Major practical problems

    • Continuum of work: The government argues that the Assembly meets only after gaps of several months, and government Ministers, officers, and staff can simply go to Amaravati when required.
    • Logistics nightmare: coordinating between seats of legislature and executive in separate cities will be easier said than done.
    • Time and costs of travel: The distances in Andhra Pradesh are not inconsiderable. Executive capital Visakhapatnam is 700 km from judicial capital Kurnool, and 400 km from legislative capital Amaravati.

    Examples of multi-capital states in India

    • Among Indian states, Maharashtra has two capitals– Mumbai and Nagpur (which holds the winter session of the state assembly).
    • Himachal Pradesh has capitals at Shimla and Dharamshala (winter).
    • The former state of Jammu & Kashmir had Srinagar and Jammu (winter) as capitals where Darbar Move is carried out.

     

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  • SC to hear plea against Electoral Bonds Scheme

    bond

    The Supreme Court is scheduled to examine whether petitions challenging the validity of 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, that 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 ₹1,000, ₹10,000, ₹10 lakh, and ₹1 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 ₹20,000 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 percent 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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  • Indian constitutional morality

    constitutional

    Context

    • This Republic Day, as India marks the completion of 74 years of its constitutional functioning, the moral and ethical spirit of the Constitution that has phenomenally shaped the trajectory of constitutional democracy, needs to be delved into. To adequately comprehend the promise and practice of the Indian Constitution, it is crucial to unpack its underlying moral or ethical tenets that have shaped or has been shaping the discourse of constitutionalism in India.

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    Ethical underpinnings of the Indian Constitution

    • Constitution for governance: Constitutions are primarily seen as the legal edifice that prescribes the fundamental principles and rules crucial for governing a nation.
    • Legal guiding document: The Indian Constitution, as the revered guiding document, for governing the post-colonial independent nation, consists of the prescription, pronouncements, and provisions that gave shape to India’s legal-political system of governance.
    • Contains ethical values: Beyond the legal directives and provisions, the document reflects a set of normative ethical values which the Indian Constitution makers perceived as integral for laying the foundation of the Indian Republic.
    • Basic premise of Constitutional morality: Such constitutional predilection towards a set of ‘substantive moral entailments’ that goes beyond the legal-doctrinal reading of the Constitution entails the basic premise of constitutional morality.

    Constitutional

    What is mean by Constitutional morality?

    • Constitutional morality refers to the set of moral principles and values that are reflected in the Indian Constitution and considered important for the proper functioning of Indian society.
    • This includes not only legal rules but also broader ethical guidelines for how the country should be governed.

    Contextualizing constitutional morality

    • Constitutional Morality to Understand Democracy in India: The premise of constitutional morality needs to be extrapolated to better understand the larger ethical dynamics that have consolidated the form and substance of democracy in India.
    • Two dimensions of representative democracy: The practise of representative democracy is constituted by two dimensions procedural democracy as well as substantive democracy. The former encapsulates the practise of electoral democracy while the latter also includes the larger substantive or qualitative impact of electoral democracy on the lives of the people.
    • The resilience of constitutional democracy in India: Despite the apprehensions raised at the time of independence as India was dubbed as an ‘improbable democracy’, constitutional democracy in India undoubtedly remains stable and durable, manifesting its unflinching resilience in the last seven decades.
    • The ethical drivers of India’s vibrant democratic continuity: The success of India’s vibrant democratic continuity, in spite of the humongous challenges of multi-dimensional diversity, geographical, and demographic expanse and other socio-economic hindrances can be attributed to the moral and ethical drivers of the Indian Constitution that needed to be deciphered further.

    Constitutional

    Ethical motivation and democracy

    • The Democratic Ethic of the Indian Republic: The book, Politics and Ethics of Indian Constitution, notes that the Constitution at its very inception identified itself to belong to the ‘people’ underlining the democratic ethic of the Indian Republic. The Constitution’s genuinely egalitarian project got manifested in the granting of the universal adult franchise to all sections of people in India.
    • Right to vote: India, by virtue of its constitutional inclination towards inclusivity, commenced universal political enfranchisement immediately after the independence while the right to vote has been granted to women in stable western democracies much later after their independence.
    • The autonomous election commission and free and fair elections: The constitutionally designated Election Commission in India functions as an autonomous body and has remained successful in conducting largely free and fair elections. Voter turnout has remarkably increased since then specially women to be mentioned. Also, the instances of major electoral violence have also declined with time.
    • Political participation and equal opportunity: In tandem with the principle of inclusiveness based on the idea of equal political opportunity that the Indian constitution espoused, India witnessed a gradual increase in the political participation and representation of the hitherto marginalised and weaker sections of people.
    • Strengthening democratic credentials through fundamental rights: The fundamental rights rolled out by the Constitution have acted as an extremely helpful instrument for strengthening India’s democratic credentials by making the ‘modern citizen’ aware of their political, legal and civic rights based on the inalienable principle of individual liberty.
    • Welfare state by Directive Principles of State Policy: The Indian Constitution includes important but non-enforceable provisions for welfare in the Directive Principles of State Policy (DPSP). These provisions have helped to expand welfare and development programs in electoral politics, and have given many people access to basic necessities for a decent life, in line with the democratic ideal of a better life for all.

    Conclusion

    • The values of freedom, fraternity, equality and social justice in the Indian Constitution have enabled inclusive participation and given citizens the power to demand welfare and development. Thus, the inextricably embedded values of India’s constitutional morality have played a pivotal role in strengthening the ethical vision of democracy, despite challenges, further enhancing India’s democratic resilience.

    Mains question

    Q. What do you understand by mean constitutional morality? Despite of challenges India’s constitution showed remarkable democratic resilience. Discuss.

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  • What is a Living Will?

    A five-judge Bench of the Supreme Court headed by Justice K M Joseph agreed to significantly ease the procedure for passive euthanasia in the country by altering the existing guidelines for ‘living wills’.

    What is Living Will?

    • A living will is a legal document detailing the type and level of medical care one wants to receive if they are unable to make decisions or communicate their wishes when care is needed.
    • A living will addresses many life-threatening treatments and procedures, such as resuscitation, ventilation, and dialysis.
    • A person can appoint a healthcare proxy to make decisions regarding care when they are unable to do so.
    • A living trust is a legal document that addresses how the assets of the incapacitated person should be managed.
    • People can enlist the services of an estate planner or an attorney to help draft or review a living will.

    Living Will in India

    • It was first laid down in its 2018 judgment in Common Cause vs. Union of India & Anr, which allowed passive euthanasia.
    • It was in response to the Aruna Shanbaug Case where protagonists were arguing in favor of mercy killing to Aruna.
    • The guidelines pertained to questions such as who would execute the living will, and the process by which approval could be granted by the medical board.
    • It declared that an adult human being having mental capacity to take an informed decision has right to refuse medical treatment including withdrawal from life-saving devices.

    What is Euthanasia?

    • Euthanasia refers to the practice of an individual deliberately ending their life, oftentimes to get relief from an incurable condition, or intolerable pain and suffering.
    • Euthanasia, which can be administered only by a physician, can be either ‘active’ or ‘passive’.
    • Active euthanasia involves an active intervention to end a person’s life with substances or external force, such as administering a lethal injection.
    • Passive euthanasia refers to withdrawing life support or treatment that is essential to keep a terminally ill person alive.

    What is the legal history of this matter?

    • Passive euthanasia was legalized in India by the Supreme Court in 2018, contingent upon the person having a ‘living will’.
    • It must be a written document that specifies what actions should be taken if the person is unable to make their own medical decisions in the future.
    • In case a person does not have a living will, members of their family can make a plea before the High Court to seek permission for passive euthanasia.

    What did the SC rule in 2018?

    • The Supreme Court allowed passive euthanasia while recognising the living wills of terminally-ill patients who could go into a permanent vegetative state.
    • It was required to be signed by an executor (the individual seeking euthanasia) in the presence of two attesting witnesses and to be further countersigned by a Judicial Magistrate of First Class (JMFC).
    • The court issued guidelines regulating this procedure until Parliament passed legislation on this.
    • However, this has not happened, and the absence of a law on this subject has rendered the 2018 judgment the last conclusive set of directions on euthanasia.

    What was the situation before 2018?

    • P Rathinam vs Union Of India, 1994: In a case challenging the constitutional validity of Section 309 of the IPC — which mandates up to one year in prison for attempt to suicide the Supreme Court deemed the section to be a “cruel and irrational provision”.
    • Gian Kaur vs The State Of Punjab, 1996: Two years later, a five-judge Bench of the court overturned the decision in P Rathinam, saying that the right to life under Article 21 did not include the right to die, and only legislation could permit euthanasia.
    • Aruna Ramchandra Shanbaug vs Union Of India & Ors, 2011: SC allowed passive euthanasia for Aruna Shanbaug, a nurse who had been sexually assaulted in Mumbai in 1973, and had been in a vegetative state since then. The court made a distinction between ‘active’ and ‘passive’, and allowed the latter in “certain situations”.

    Key observations by Law Commission

    • Earlier, in 2006, the Law Commission of India in its 196th Report’ had said that a doctor who obeys the instructions of a competent patient to withhold or withdraw medical treatment does not commit a breach of professional duty and the omission to treat will not be an offence.
    • It had also recognised the patient’s decision to not receive medical treatment, and said it did not constitute an attempt to commit suicide under Section 309 IPC.
    • Again, in 2008, the Law Commission’s ‘241st Report On Passive Euthanasia: A Relook’ proposed legislation on ‘passive euthanasia’, and also prepared a draft Bill.

    What was the old cumbersome process?

    • The treating physician was required to constitute a board comprising three expert medical practitioners from specific but varied fields of medicine, with at least 20 years of experience.
    • They would decide whether to carry out the living will or not.
    • If the medical board granted permission, the will had to be forwarded to the District Collector for his approval.
    • The Collector was to then form another medical board of three expert doctors, including the Chief District Medical Officer.
    • Only if this second board agreed with the hospital board’s findings would the decision be forwarded to the JMFC, who would then visit the patient and examine whether to accord approval.
    • This cumbersome process will now become easier.

    Recent changes after the SC’s order this week

    • Medical board: Instead of the hospital and Collector forming the two medical boards, both boards will now be formed by the hospital.
    • 5 year experienced doctor: The requirement of 20 years of experience for the doctors has been relaxed to five years.
    • Magistrate approval not required: The requirement for the Magistrate’s approval has been replaced by an intimation to the Magistrate.
    • No witness required: The 2018 guidelines required two witnesses and a signature by the Magistrate; now a notary or gazetted officer can sign the living will in the presence of two witnesses instead of the Magistrate’s countersign.
    • HC for appeal: In case the medical boards set up by the hospital refuses permission, it will now be open to the kin to approach the High Court which will form a fresh medical team.

    Different countries, different laws

    • NETHERLANDS, LUXEMBOURG, BELGIUM allow both euthanasia and assisted suicide for anyone who faces “unbearable suffering” that has no chance of improvement.
    • SWITZERLAND bans euthanasia but allows assisted dying in the presence of a doctor or physician.
    • CANADA had announced that euthanasia and assisted dying would be allowed for mentally ill patients by March 2023; however, the decision has been widely criticised, and the move may be delayed.
    • UNITED STATES has different laws in different states. Euthanasia is allowed in some states like Washington, Oregon, and Montana.
    • UNITED KINGDOM considers it illegal and equivalent to manslaughter.

    Justification for Euthanasia/Assisted Suicide

    • It provides a way to relieve extreme pain.
    • Euthanasia can save life of many other people by donation of vital organs.

    Conclusion

    • India officially recognizes that- “every single citizen is entitled to and reserves the right to die with dignity.”
    • Hon’ble Supreme Courts’ recent updated guidelines are a major move in this direction.

     

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  • Uniform Civil Code, Identity politics and the gender equality

    Civil

    Context

    • Once again there is a clamour to replace diverse personal laws with a Uniform Civil Code (UCC), applicable to all Indians, irrespective of religion, gender or caste. Some states (for example, Uttarakhand) are already drafting one.

    What is a Uniform Civil Code?

    • A Uniform Civil Code is one that would provide for one law for the entire country, applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption, etc.
    • Article 44, one of the directive principles of the Constitution lays down that the state shall endeavor to secure a Uniform Civil Code for the citizens throughout the territory of India.
    • These, as defined in Article 37, are not justiciable (not enforceable by any court) but the principles laid down therein are fundamental in governance.

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    Inheritance laws at present

    • Hindus are governed by the 2005 Hindu Succession Amendment Act (HSAA);
    • Muslims by the Muslim Personal Law (Shariat) Application Act, 1937;
    • Christians and Parsis by the Indian Succession Act 1925 (amended by both communities subsequently), and
    • Tribal groups are still subject to custom.

    Civil

    What makes unification difficult?

    • Distinction in Hindu inheritance laws: Hindu inheritance distinguishes between separate property and coparcenary joint family property, giving coparceners rights by birth. No other personal law makes this distinction.
    • Within Hindu law itself, states diverge: Kerala abolished joint family property altogether in 1976, but other states retained it, and matrilineal Hindus (as in Meghalaya and Kerala) have different inheritance rules from patrilineal Hindus. Even among the latter, Hindus historically governed by Dayabhagha (West Bengal and Assam) differ from those in the rest of India who were governed historically by Mitakshara.
    • unrestricted right to will: The right to will is unrestricted among Hindus, Christians and Parsis, but Muslim law restricts wills to one-third of the property; and Sunni and Shia Muslims differ on who can get such property and with whose consent.
    • Complex gender equal laws specifically in Muslims: for while the inheritance laws of Hindus, Christians and Parsis are largely gender equal today, under Muslim personal law, based on the Shariat, women’s shares are less than men’s, generically. Being embedded in the Koran, this complex structure of rules leaves little scope for reform towards gender equality.
    • Land is treated differently from other property: The HSAA 2005, for instance, deleted the clause which discriminated against women in agricultural land, but the 1937 Shariat Act governing Muslims continues to exclude agricultural land from its purview, leaving a major source of gender inequality intact. Although Tamil Nadu, Andhra Pradesh and Kerala later amended the Shariat Act to include agricultural land, in many other states, landed property is still subject to tenurial laws which exclude Muslim women from inheriting it, contrary to their rights under the Shariat.
    • Social justifications on who deserves to inherit differ: Hindus emphasise sapinda (“shared body particles” in Mitakshara and religious efficacy in Dayabhaga); other communities privilege blood or marital ties; and yet others favour proximity of children’s post-marital residence to provide parents care in old age.

    Civil

    Main concern: Deflection from the original aim of Gender equality

    • Today, the UCC debate has become enmeshed with identity politics, deflecting it from the original aim of gender equality. And the mingling of legal reform with religious identity has sharpened political divisiveness.

    Answer probably lies in: The discussions among women’s groups in the 1990s

    1. Encourage each religious community to pursue its own reform for gender equality.
    2. Constitute a package of gender-just laws which would coexist with personal laws, and a person could choose one or the other upon reaching adulthood.
    3. Constitute a gender-equal civil code applicable to all citizens without option, based on the constitutional promise of gender equality, rather than on religious decree or custom.

    Conclusion

    • For a start, rather than one code covering inheritance, marriage, etc., we should discuss each separately. On inheritance, which is the most complex, a secular law based on constitutional rights will clearly go the farthest towards gender equality. Whether this is possible in today’s divisive political environment remains an open question. But at least we should restart the conversation.

    Mains question

    Q. What is Uniform civil code? Highlight some of the major points which makes the unification difficult.

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