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Subject: Polity

  • Supreme Court says NO to Sealed Cover suggestions

    seal

    Central idea: The Supreme Court has said it did not want to accept in a “sealed cover” the Centre’s suggestions on who could be the members of a committee the court had proposed to assess the market regulatory framework and recommend measures, if any, to strengthen it in the wake of the Adani-Hindenburg affair.

    What is the news?

    • The article is about a public interest petition filed in the Supreme Court that calls for the establishment of an expert panel to strengthen regulatory mechanisms related to the Adani Group.
    • The petitioners argue that the Adani Group has been able to bypass regulatory hurdles through its influence on government officials and agencies.

    What is Sealed Cover Jurisprudence?

    • It is a practice used by the Supreme Court and sometimes lower courts, of asking for or accepting information from government agencies in sealed envelopes that can only be accessed by judges.
    • A specific law does not define the doctrine of sealed cover.
    • The Supreme Court derives its power to use it from Rule 7 of order XIII of the Supreme Court Rules and Section 123 of the Indian Evidence Act of 1872.

    Need for sealed cover jurisprudence

    There are several reasons why sealed cover jurisprudence is used-

    • National security: For example, in cases involving sensitive information related to defense or intelligence agencies, the disclosure of such information in open court proceedings could compromise national security.
    • Individual privacy: It is also used to protect the privacy in cases involving sensitive personal information. In such cases, the court may allow the submission of such information in a sealed cover to protect the privacy of the individual concerned.
    • Protect commercial or trade secrets: In cases involving disputes between companies, the disclosure of confidential information related to their business operations could harm their commercial interests.

    Nature of the power: Upholding Secrecy

    • If the Chief Justice or court directs certain information to be kept under sealed cover or considers it of confidential nature, no party would be allowed access to the contents of such information.
    • There is an exception to this if the Chief Justice himself orders that the opposite party be allowed to access it.
    • It also mentions that information can be kept confidential if its publication is not considered to be in the interest of the public.
    • As for the Evidence Act, official unpublished documents relating to state affairs are protected and a public officer cannot be compelled to disclose such documents.

    Grounds of such secrecy

    Other instances where information may be sought in secrecy or confidence is when its publication:

    1. Impedes an ongoing investigation of cases related to national security
    2. Details that are part of the police’s case diary or
    3. Breaches the privacy of an individual

    Prominent cases of sealed jurisprudence

    Sealed cover jurisprudence has been frequently employed by courts in the recent past.

    (1) Rafale Deal

    • In the case pertaining to the controversial Rafale fighter jet deal, a Bench headed by CJI Ranjan Gogoi in 2018, had asked the Centre to submit details related to deal’s decision making and pricing in a sealed cover.
    • This was done as the Centre had contended that such details were subject to the Official Secrets Act and Secrecy clauses in the deal.

    (2) Bhima Koregaon Case

    • In the Bhima Koregaon case, in which activists were arrested under the Unlawful Activities Prevention Act.
    • The Supreme Court had relied on information submitted by the Maharashtra police in a sealed cover.

    Issues with such jurisprudence

    • Undermines open justice: This practice appears to be unfavorable to the principles of transparency and accountability of the Indian justice system.
    • Erodes public faith: It stands in contrast to the idea of an open court, where decisions can be subjected to public scrutiny.
    • Increases arbitrariness: It is also said to enlarge the scope for arbitrariness in court decisions, as judges are supposed to lay down the reasoning for their decisions.
    • Unfair trials: Besides, it is argued that not providing access to such documents to the accused parties obstructs their passage to a fair trial and adjudication.

    Way forward

    • Conduct an independent and thorough investigation: Inquire into the allegations raised in the petition, and take appropriate legal action against the Adani Group if they are found to have violated environmental regulations.
    • Establish an expert panel as suggested by the petitioners: To review the regulatory framework and suggest measures to strengthen it. The panel should include experts from various fields, including environmental science, law, and economics.
    • Ensure transparency and accountability in the regulatory process: Foster a culture of environmental awareness and responsibility among businesses by promoting sustainable and eco-friendly practices. This could involve providing incentives and support to companies that adopt such practices.
    • Review the use of sealed cover jurisprudence: Ensure that it is used judiciously and only in cases where it is necessary to protect sensitive or confidential information.

     

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  • How did Election Commission decide who gets Party Symbol?

    Central idea: A faction within a political party led by the Maharashtra CM has been officially recognized as the legitimate group by the Election Commission of India. The faction has been allotted the “bow and arrow” symbol and the original name for use in future elections.

    Why discuss this?

    • The allotment of election symbols can have a significant impact on the electoral fortunes of political parties and that the current system of allotment may need to be reviewed to ensure greater transparency and fairness.

    EC’s powers in Election Symbol Dispute

    • The question of a split in a political party outside the legislature is dealt by Para 15 of the Symbols Order, 1968.
    • It states that the Election Commission of India’s (ECI) may take into account all the available facts and circumstances and undertake a test of majority.
    • The decision of the ECI shall be binding on all such rival sections or groups emerged after the split.
    • This applies to disputes in recognized national and state parties.
    • For splits in registered but unrecognized parties, the EC usually advises the warring factions to resolve their differences internally or to approach the court.

    How did the EC deal with such matters before the Symbols Order came into effect?

    • Before 1968, the EC issued notifications and executive orders under the Conduct of Election Rules, 1961.
    • The most high-profile split of a party before 1968 was that of the CPI in 1964.
    • A breakaway group approached the ECI in December 1964 urging it to recognize them as CPI(Marxist). They provided a list of MPs and MLAs of Andhra Pradesh, Kerala and West Bengal who supported them.
    • The ECI recognized the faction as CPI (M) after it found that the votes secured by the MPs and MLAs supporting the breakaway group added up to more than 4% in the 3 states.

    Options for ECI

    • The ECI in all likelihood can freeze the symbol so that neither of the two sides is able to use it until a final decision is made.
    • EC hearings are long and detailed and may take at least six months.

    What was the first case decided under Para 15 of the 1968 Order?

    • It was the first split in the Indian National Congress in 1969.
    • Indira Gandhi’s tensions with a rival group within the party came to a head with the death of President Dr Zakir Hussain on May 3, 1969.

    Is there a way other than the test of the majority to resolve a dispute over election symbols?

    • In almost all disputes decided by the EC so far, a clear majority of party delegates/office bearers, MPs and MLAs have supported one of the factions.
    • Whenever the EC could not test the strength of rival groups based on support within the party organization (because of disputes regarding the list of office bearers), it fell back on testing the majority only among elected MPs and MLAs.

    What happens to the group that doesn’t get the parent party’s symbol?

    • The EC in 1997 did not recognize the new parties as either state or national parties.
    • It felt that merely having MPs and MLAs is not enough, as the elected representatives had fought and won polls on tickets of their parent (undivided) parties.
    • The EC introduced a new rule under which the splinter group of the party — other than the group that got the party symbol — had to register itself as a separate party.
    • It could lay claim to national or state party status only on the basis of its performance in the state or central elections after registration.

     

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  • Nominated members cannot vote in Delhi Mayor Poll: Supreme Court

    Central idea: The Supreme Court ordered the Lieutenant Governor of Delhi to notify the first meeting of the Municipal Corporation of Delhi to elect a Mayor within 24 hours and held that nominated members cannot vote in these polls.

    What is the issue?

    • The issue at hand is whether the nominated members of the Municipal Corporation of Delhi should be allowed to vote in the mayoral polls.
    • A Party had challenged the eligibility of the nominated members to vote, arguing that they were appointed by the Delhi government and were therefore not neutral.
    • The Supreme Court of India has now ruled that the nominated members cannot vote in the mayoral polls.

    What has the Supreme Court ruled?

    • The Bench did not agree with the L-G’s contention that nominated members could vote in the first meeting.
    • The court pointed out that Article 243R of the Constitution did not distinguish between the first and regular meetings.

    Who is a Mayor?

    • In India, the mayor is the head of a municipal corporation, which is responsible for providing essential services and infrastructure to the residents of a city or town.
    • The mayor is usually elected by the members of the municipal corporation or council, and serves as the ceremonial head of the local government.

    History of Mayor’s elections in India

    • Municipal corporation mechanisms in India was introduced during British Rule with formation of municipal corporation in Madras (Chennai) in 1688, later followed by municipal corporations in Bombay (Mumbai) and Calcutta (Kolkata) by 1762.
    • However the process of introduction for an elected President in the municipalities was made in Lord Mayo’s Resolution of 1870.
    • Since then the current form and structure of municipal bodies followed is similar to Lord Ripon’s Resolution adopted in 1882 on local self-governance.
    • The 74th Constitutional Amendment Act of 1992 was introduced providing for the transfer of 18 different powers to urban local bodies, including the election of a mayor and to recognise them which included Municipal Corporations, Nagar Panchayats, and Municipal Councils.

    Elections and tenure

    • The method of electing mayor and their tenure varies for each city in India.
    • In Bengaluru (Karnataka) the election process is indirect with a tenure being for one year, in Mumbai (Maharashtra) it follows indirect elections with tenure for 2.5 years and Bhopal (Madhya Pradesh) follows a directly elected mayor with a term for 5 years.

    Roles and Responsibilities

    • Governs the local civic body.
    • Fixed tenure varying in different towns.
    • First citizen of city.
    • Has two varied roles — Representation and upholding of the dignity of the city during ceremonial times and a presiding over discussions of the civic house with elected representatives in functional capacity.
    • The Mayor’s role is confined to the corporation hall of presiding authority at various meetings relating to corporation.
    • The Mayor’s role extends much beyond the local city and country as the presiding authority at corporation meetings during visits of a foreign dignitary to the city as he is invited by the state government to receive and represent the citizens to the guest of honour.
    • At government, civic and other social functions he is given prominence.

     

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  • Ladakh and the Sixth Schedule

    ladakh

    A Ladakhi innovator and engineer completed his five-day “climate fast”, in an effort to draw the attention of leaders to the region’s fragile ecology and to secure its protection under the Sixth Schedule of the Constitution.

    Fast for Ladakh’s Fragile Ecology

    • The fast highlights that Ladakh’s ecology is highly sensitive to climate change, with melting glaciers posing significant risks to the region’s flora, fauna, and people.
    • As a cold desert, Ladakh relies on glaciers to fulfil water needs.
    • However, melting glaciers cause the loss of potable water, threaten agriculture practices, erode sustainable practices, and force locals to migrate.

    About Ladakh

    • Ladakh is a region in the northernmost part of India, bordering China and Pakistan.
    • The region is home to several ethnic groups, including the Ladakhi people, who are predominantly Buddhist.

    Demand for Sixth Schedule in Ladakh

    • There has been a demand from the local tribal communities in Ladakh to extend the provisions of the Sixth Schedule to the region.
    • The demand has been primarily driven by concerns over the protection of tribal rights and the preservation of the unique cultural identity of the local communities.

    Current administration in Ladakh

    • Ladakh was granted Union Territory status in 2019, following the bifurcation of the state of Jammu and Kashmir into two separate Union Territories.
    • The administration of Ladakh is currently governed by the Lieutenant Governor of Ladakh and an elected Ladakh Autonomous Hill Development Council (LAHDC).

    Benefits of Sixth Schedule in Ladakh

    • Meeting tribal aspiration: The Parliamentary standing committee recommended including of Ladakh in the Sixth Schedule because its tribal communities account for 79.61% of its total population.
    • Autonomy and self-governance: The extension of the Sixth Schedule to Ladakh could provide greater autonomy and self-governance to the local tribal communities.
    • Cultural preservation: It could also help to protect the unique cultural identity of the local communities and preserve their traditional practices and customs.

    Challenges to this demand

    • No further fragmentation: The demand to extend the Sixth Schedule to Ladakh has faced some opposition from certain quarters, who argue that it could lead to further fragmentation of the region and create new administrative challenges.
    • Losing political capital: There are also concerns over the potential impact of the demand on the political and administrative structure of the region.

    Conclusion

    • Overall, the demand to extend the provisions of the Sixth Schedule to Ladakh is a complex issue that requires careful consideration of the needs and aspirations of the local tribal communities, as well as the broader political and administrative context of the region.

    Back2Basics: Sixth Schedule of Indian Constitution

    • The Sixth Schedule of the Indian Constitution provides for the administration of tribal areas in the northeastern states of India.
    • These provisions were added to the Constitution in order to protect the rights and interests of the tribal communities in these areas and to promote their social, cultural, and economic development.

    Here’s a summary of the Sixth Schedule of the Indian Constitution:

    Areas covered

    • The Sixth Schedule covers the tribal areas in the states of Assam, Meghalaya, Tripura, and Mizoram.
    • These areas are known as “tribal areas” and are home to a large number of indigenous tribal communities.

    Autonomous district councils

    • The Sixth Schedule provides for the establishment of autonomous district councils in the tribal areas.
    • These councils have the power to make laws and regulations for the governance of their respective areas.
    • They are also responsible for the administration of the local institutions of self-government, such as village councils and traditional councils.

    Composition of district councils

    • The members of the district councils are elected by the people of the respective districts.
    • The councils are headed by a chairman, who is also elected by the members of the council.
    • The district councils have the power to appoint their own staff and to manage their own finances.

    Powers of district councils

    • The district councils have the power to make laws on a range of subjects, including land, forests, water, and fisheries.
    • They also have the power to regulate local markets and to levy taxes and fees on a range of activities.
    • The district councils can also establish and manage schools, hospitals, and other institutions for the benefit of the local communities.

    Protection of tribal rights

    • The Sixth Schedule provides for the protection of the rights of the tribal communities in the areas covered by the schedule.
    • It ensures that the traditional rights and customs of the tribal communities are respected and protected.
    • It also provides for the reservation of seats in the district councils and other local bodies for members of the tribal communities.

     

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  • Vacancy of Deputy Speaker Chair in States

    The Supreme Court issued notices to the Centre and five states — Rajasthan, Uttarakhand, Madhya Pradesh, Uttar Pradesh, and Jharkhand — over the failure to elect a Deputy Speaker.

    The Post of Deputy Speaker

    • The Deputy Speaker is the second-highest-ranking official of the Lok Sabha, after the Speaker.
    • She/he presides over the House in the absence of the Speaker, maintains order and decorum, and decides points of order raised by the members.
    • She/he is elected by the members of the House and holds office until the next Lok Sabha is constituted.

    Constitutional provisions for Dy. Speaker

    • The Constitution of India provides for the post of Deputy Speaker in the Lok Sabha under Article 93.
    • The Deputy Speaker is elected by the members of the House and holds the office until the next Lok Sabha is constituted.
    • The Constitution does not provide for a temporary or acting Deputy Speaker in case of the incumbent’s absence or inability to perform the duties.
    • Article 178 contains the corresponding position for Speaker and Deputy Speaker of the Legislative Assembly of a state.

    Is it mandatory to have a Deputy Speaker?

    • Constitutional experts point out that both Articles 93 and 178 use the word “shall”, indicating that the election of Speaker and Deputy Speaker is mandatory under the Constitution.

    What if she/he remains absent?

    • In the absence of Dy. Speaker, the house functions with the Speaker or the panel of chairpersons presiding over the House.
    • The House may elect a new Deputy Speaker to fill the post until the next assembly is constituted.
    • The House might need to elect a new Deputy Speaker in case of the incumbent’s absence or inability to perform the duties.

    Why discuss this?

    • The post of Deputy Speaker is an important position in the Lok Sabha/Legislative Assembly and plays a crucial role in conducting the House proceedings.
    • It is important to ensure the post’s functioning to maintain the House’s order and decorum and conduct the House proceedings smoothly.

     

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  • Freedom of Speech and the Speaker in the House

    Speech

    Central Idea

    • The expunction of portions of the speeches made by some Opposition politicians in Parliament recently is an issue that has sparked off a debate on an action taken by the Speaker. Parliamentarians Mr. Gandhi and Mr. Kharge were both speaking on the Motion of Thanks to the President of India for her address to the Members of Parliament of both Houses.

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    Motion of Thanks

    • After the President’s address, the two Houses move a motion to thank the President for her speech.
    • This is customary practice although the Constitution does not provide for any such motion, except direct that each House shall discuss the matters contained in the address.
    • This is a practice adopted from the British Parliament.

    Debate after the motion

    • An occasion to point out lapses on the government’s part: Debate in When such a motion is discussed, MPs are generally permitted to speak on anything under the sun. It is an occasion to point out lapses on the government’s part and discuss the gamut of issues that concern the governance of the country.
    • Speeches are generally political and the Chair never insists on relevance: Since the Council of Ministers is collectively responsible to Parliament, MPs have the right to critically scrutinise the performance of the government.
    • Government must respond to the question raised: Accountability to Parliament requires the government to respond adequately to the questions raised by MPs in the debate. Under the Rules of the House, it is the Prime Minister who replies to the debate in both Houses.

    The rules that are in place

    • Freedom of speech in the House: Article 105 of the Constitution confers on members, freedom of speech in the House and immunity from interference by the court for anything said in the House. Freedom of speech in the House is the most important privilege of a Member of Parliament
    • Power of presiding officers and breach of such privilege: Rule 380 of the Rules of procedure of the Lok Sabha and Rule 261 of the Rules of the Rajya Sabha give the power to the presiding officers of these Houses to expunge any words used in the debate which are defamatory, unparliamentary, undignified or indecent. Once expunged they do not remain on record and if anyone publishes them thereafter, they will be liable for breach of privilege of the House.
    • Rule 353 if there’s an allegation against a MP or an outsider: There are also occasions when an MP may, during his speech, make an allegation against a fellow MP or an outsider. Rule 353 of the Lok Sabha regulates the procedure in that regard. Under this Rule, the MP is required to give “adequate advance notice” to the Speaker as well as the Minister concerned. The Rule does not prohibit the making of any allegation, the only requirement is advance notice.

    Allegations and Speaker rulings

    • MP’s who make allegations must be sure about the factual basis: Making an allegation against a Minister or the Prime Minister is considered to be a serious matter; therefore, the presiding officers have carefully laid down a stipulation that the MP who makes an imputation against a Minister should be sure about the factual basis of the allegation, and that he must take responsibility for it.
    • Allegations complies with stipulation allowed to remain on record: If the MP complies with this stipulation, then the allegation will be allowed to remain on record. There have been many instances in the Lok Sabha when MPs have made allegations against Ministers.

    Here are two rulings made by the Speakers on such occasions

    • Allegation bases on press report: On September 2, 1965 when Prakash Vir Shastri, MP, made personal allegations against Humayun Kabir, the then Minister for Education. The MP reiterated his allegation and referred to press reports.
    • Ruling- Press report could not be sufficient basis of allegations: In his ruling, the Speaker, Sardar Hukam Singh, said, “Normally the source of information available to members is newspapers. But that is not a sufficient basis for a member to make an allegation against a Minister, member or other dignitaries.
    • Allegation based on a weekly: On December 21 1981 in the Lok Sabha, Bapusaheb Parulekar, MP, made a reference to an allegation published in the Sunday (a weekly) against the then Railway Minister, Kedar Pande, and his family members in connection with permanent railway card passes.
    • Ruling- The member should be prepared to accept the responsibility for the allegation: The Deputy Speaker, G. Lakshmanan ruled that, “The member should, before making an allegation in the House, satisfy himself after making enquiries that there is a basis for the allegation. The member should be prepared to accept the responsibility for the allegation and the member should be prepared to substantiate the allegation.”

    Issue of defamation

    • Under Section 499 of the Indian Penal Code (Second exception), any statement respecting the conduct of a public servant in the discharge of his public function or his character is not defamation. If such a statement is made in the House against a Minister who is a public servant, it does not come within the ‘mischief’ of Rule 353 or Rule 380.
    • Therefore, it does not afford an occasion for the presiding officers to expunge words in or portions of a speech on the ground that they are defamatory.

    Conclusion

    • In a House where freedom of speech is the most important privilege of a Member of Parliament, establishing defamatory or incriminatory statements as opposed to critical comments, which an MP has the right to make, is important. It also needs to be ensured that the freedom of speech enjoyed by the Members in the House is not needlessly curtailed.

    Mains question

    Q. What is motion of thanks? Freedom of speech is the most important privilege of a Member of Parliament which should not be needlessly curtailed. Discuss.

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  • What is ‘Office of Profit’?

    Central idea: Jharkhand CM’s chair remains uncertain as the Election Commission (EC) is understood to have conveyed its decision in an office-of-profit complaint against him to the Governor.

    Why in news?

    • Under Section 9A of the Representation of the People Act, 1951, the CM could face disqualification for entering into a government contract.
    • The Constitution of India does not define the Office of Profit. It has only mentioned it under Article 102 (1) and Article 191 (1).

    What is ‘Office of Profit’?

    • In India, the concept of an “Office of Profit” refers to a situation where a person holds a government position that brings them financial gain or other advantages, while at the same time they hold an elected or other public office.
    • The idea behind this concept is to prevent any conflict of interest and ensure that elected representatives do not hold positions that may compromise their independence and impartiality.

    Indian context to this

    • MPs and MLAs, as members of the legislature, hold the government accountable for its work.
    • The essence of disqualification is if legislators hold an ‘office of profit’ under the government, they might be susceptible to government influence, and may not discharge their constitutional mandate fairly.
    • The intent is that there should be no conflict between the duties and interests of an elected member.
    • Hence, the office of profit law simply seeks to enforce a basic feature of the Constitution- the principle of separation of power between the legislature and the executive.

    What governs the term?

    • At present, the Parliament (Prevention of Disqualification) Act, 1959, bars an MP, MLA or an MLC from holding any office of profit under the central or state government unless it is exempted.
    • However, it does not clearly define what constitutes an office of profit.
    • Legislators can face disqualification for holding such positions, which bring them financial or other benefits.
    • Under the provisions of Article 102 (1) and Article 191 (1) of the Constitution, an MP or an MLA (or an MLC) is barred from holding any office of profit under the Central or State government.

    An undefined term

    • The officials of the law ministry are of the view that defining an office of profit could lead to the filing of a number of cases with the Election Commission and the courts.
    • Also, once the definition is changed, one will also have to amend various provisions in the Constitution including Article 102 (1) (a) and Article 109 (1) (a) that deal with the office of profit.
    • It will have an overarching effect on all the other sections of the Constitution.

    Factors constituting an ‘office of profit’

    • The 1959 law does not clearly define what constitutes an office of profit but the definition has evolved over the years with interpretations made in various court judgments.
    • An office of profit has been interpreted to be a position that brings to the office-holder some financial gain, or advantage, or benefit. The amount of such profit is immaterial.
    • In 1964, the Supreme Court ruled that the test for determining whether a person holds an office of profit is the test of appointment.

    What is the ‘test of appointment’?

    Several factors are considered in this determination including factors such as:

    1. whether the government is the appointing authority,
    2. whether the government has the power to terminate the appointment,
    3. whether the government determines the remuneration,
    4. what is the source of remuneration, and
    5. power that comes with the position

     

    Try this MCQ:

    Q. What is an “Office of Profit” in India?

    a) A position that is controlled by the government and comes with no financial gain or other benefits.

    b) A position that is controlled by the government and comes with some financial gain or other benefits.

    c) A position that is controlled by the private sector and comes with no financial gain or other benefits.

    d) A position that is controlled by the private sector and comes with some financial gain or other benefits.

     

    [wpdiscuz-feedback id=”u4ubskrwwm” question=”Please leave a feedback on this” opened=”1″]Post your answers here.[/wpdiscuz-feedback]

     

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  • Religious Excommunication of Members

    A Constitution Bench of the Supreme Court referred to a larger Bench of nine judges a series of petitions challenging the authority of minority community leaders to excommunicate their members.

    Excommunication case: A quick backgrounder

    • On November 1, 1949, the Bombay Prevention of Excommunication Act (now repealed) was enacted, which sought to prevent the practice of excommunication prevalent in certain communities.
    • Excommunication has led to the deprivation of legitimate rights and privileges of its members and in “keeping with the spirit of changing times and in public interest”.

    What is Excommunication?

    • The law defined excommunication as the “expulsion of a person from any community of which he is a member, depriving him of rights and privileges which are legally enforceable by a suit of civil nature”.
    • It invalidated excommunication of any member, “notwithstanding anything contained in law, custom, usage” for the time being in force.

    Issues with Excommunication

    • Discriminatory: Excommunication is a serious and permanent punishment that can have a negative impact on a person’s life.
    • Loss of identity: It can lead to a person feeling isolated, ostracized and excluded from the religion and community.
    • Social boycott: It may also lead to feelings of guilt, shame and alienation. Furthermore, it can lead to a loss of faith and a sense of mental despair.

    How did the matter reach the Supreme Court?

    • A cleric of the community challenged the constitutional validity of the Act, stating it violated fundamental rights guaranteed by the Constitution under:
    1. Article 25 (Freedom of conscience and free profession, practice and propagation of religion) and
    2. Article 26 (Freedom to manage religious affairs)
    • It was submitted that the power of excommunication was part of the management of community affairs in matters of religion.
    • The cleric also held that the power to excommunicate is not absolute or arbitrary.

    What has been happening in the matter more recently?

    • A Constitution Bench of the SC held in 1962 that the cleric’s position is an essential part of the community and the power to excommunicate is to enforce discipline and preserve the denomination, not to punish.
    • A challenge to the 1962 judgment was filed in 1986.
    • While that petition was still pending, the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016, was passed.
    • The 2016 Act prohibits the social boycott of a person or a group of persons, and terms it a violation of fundamental rights.
    • The Act describes a social boycott as “inhuman”, and defines 16 types of social boycott — including preventing members of a community from having access to facilities including community halls, burial grounds, etc.

    What exactly did the Supreme Court say now?

    • A Constitution Bench said that the 1962 judgment needed a relook.
    • The court held that the consideration was needed mainly on two grounds: Balancing the rights under-
    1. Article 26(b) — right of religious denominations to manage their own affairs in matters of religion — and
    2. Article 21 — whether the practice can be protected under Article 26(b) when tested on the touchstone of constitutional morality.

     

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  • What is Article 356 of Indian Constitution?

    Sitting PM recalled that governments at the Centre had dismissed 90 elected state governments by “misusing” Article 356 of the Constitution.

    What is Article 356?

    • Article 356 of the Indian Constitution contains provisions for the imposition of “President’s Rule” in a state, removing an elected government.
    • While the Constitution intended Article 356 to be used only under extraordinary circumstances, central governments repeatedly used the provision to settle political scores.

    What does it say?

    • Article 356 empowers the President to withdraw to the Union the executive and legislative powers of any state.
    • She/he has to be satisfied that a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of the Constitution.
    • Whether the constitutional machinery has broken down may be determined by the President at any time, either upon receipt of a report from the Governor, or suo motu.

    Duration of Presidents Rule

    • According to the provisions of Article 356, President’s Rule in a state can be imposed for six months at a time for a maximum duration of three years.
    • Every six months, Parliamentary approval to impose President’s Rule will be required again.
    • However, in the past, President’s Rule has been extended for significantly longer periods under specific circumstances.
    • For instance, Punjab was under President’s Rule from 1987-1992 due to the growing militancy.

    What are the origins of Article 356?

    • Article 356 was inspired by Section 93 of the Government of India Act, 1935.
    • This provided that if a Governor of a province was satisfied that a situation had arisen in which the government of the province cannot be carried on in accordance GOI Act, he could assume to himself all or any of the powers of the government and discharge those functions in his discretion.
    • The Governor, however, could not encroach upon the powers of the high court.
    • For the British, this provision allowed for a ‘controlled democracy’ – while providing some autonomy to provincial governments, Section 93 allowed the British authorities to exercise ultimate power when they deemed necessary.

    How was the provision used as a political weapon in independent India?

    • During the decades of Congress’s dominance at the Centre, Article 356 was used against governments of the Left and regional parties in the states.
    • Until 1959, Jawaharlal Nehru’s government had used the article six times, including to dislodge the first-ever elected communist government in the world, in Kerala in 1959.
    • In the 1960s, it was used 11 times. After Indira came to power in 1966, Article 356 was used seven times between 1967 and 1969 alone.
    • The 1970s were more politically turbulent. Between 1970 and 1974, President’s Rule was imposed 19 times.
    • Post-emergency, the Janata Party government used it in 1977 to summarily dismiss nine Congress state governments.
    • When Indira returned to power in 1980, her government too imposed President’s Rule in nine states.
    • In 1992-93, PM Narasimha Rao dismissed three governments in the wake of the demolition of Babri Masjid, besides Kalyan Singh’s government in UP.

    How was this political misuse of Article 356 curbed?

    Ans. S R Bommai Judgment, 1989

    • In its judgment in the landmark R. Bommai v. Union of India case, the Supreme Court discussed the provisions of Article 356 at length.
    • A nine-judge Bench in its decision in 1994 noted the specific instances when President’s Rule can be imposed and when it cannot.
    • The court held that Article 356 can be invoked in situations of the physical breakdown of the government or when there is a ‘hung assembly’.
    • But that it cannot be used without giving the state government a chance to either prove its majority in the House or without instances of a violent breakdown of the constitutional machinery.
    • Since the judgment, the arbitrary use of Article 356 has been largely controlled.

     

    Try this PYQ:

    Which of the following are not necessarily the consequences of the proclamation of the President’s rule in a State?

    1. Dissolution of the State Legislative Assembly
    2. Removal of the Council of Ministers in the State
    3. Dissolution of the local bodies

    Select the correct answer using the code given below:

    (a) 1 and 2

    (b) 1 and 3

    (c) 2 and 3

    (d) 1, 2 and 3

     

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  • Expunging Un-Parliamentary Speeches from Records

    Portions of a politicians’ speech delivered in Lok Sabha have been expunged — or removed — from the records of Parliament by the orders of the Speaker.

    Constitutional immunity for parliamentary speeches

    • Under Article 105(2) of the Constitution, “no Member of Parliament shall be liable to any proceedings in any court in respect of anything said…in Parliament or any committee thereof”.
    • However, MPs don’t enjoy the freedom to say whatever they want inside the House.
    • The speech of MPs is subject to the discipline of the Rules of Parliament, “good sense” of its Members, and the control of proceedings by the Speaker.
    • These checks ensure that MPs cannot use “defamatory or indecent or undignified or unparliamentary words” inside the House.

    How should Parliamentary Speeches be?

    • The Indian Parliament has a code of conduct which requires all members to speak in a civil and courteous manner.
    • Un-parliamentary speeches are not tolerated and offenders can be suspended or even expelled from the house.
    • The Speaker has the power to expunge any un-parliamentary speech from the record of the House and from the transcripts of the proceedings.

    Disciplinary action against unruly speeches

    • The Lok Sabha Speaker has the power to expunge any un-parliamentary speech made in the House.
    • The Speaker can also refer the matter to the Ethics Committee for further action.
    • The Speaker can also refer the matter to the Ethics Committee for further action which may include imposing fines and imprisonment for a period of up to six months.
    • The Speaker may also order the offender to apologize to the House.
    • Similar is the procedure with the Rajya Sabha Chairman.

    What is the expunging of speeches?

    • The expunging of certain words, sentences, or portions of a speech from the records is fairly routine procedure, and is carried out in accordance with laid down rules.
    • The decision on which parts of the proceedings are to be expunged lies with the Presiding Officer of the House.

    What are the rules on expunging from the record?

    • Rule 380 (“Expunction”) of the Rules of Procedure and Conduct of Business in Lok Sabha states the procedure for removal of a speech from the records.
    • Rule 381 says: The portion of the proceedings of the House so expunged shall be marked by asterisks and an explanatory footnote shall be inserted in the proceedings as follows: ‘Expunged as ordered by the Chair’.”

    What happens after a word has been expunged?

    • Expunged portions of the proceedings cease to exist in the records of Parliament, and they can no longer be reported by media houses, even though they may have been heard during the live telecast of the proceedings.
    • However, the proliferation of social media has introduced challenges in the watertight implementation of expunction orders.

    Way forward

    • Parliamentary speeches should be polite, respectful and dignified, avoiding any kind of personal attacks or slurs.
    • They should focus on the issue at hand, avoiding any kind of partisan rhetoric.
    • No offensive language should be used and all debates should be conducted in an atmosphere of mutual respect and understanding.
    • As a rule, all speakers should show due consideration for their colleagues and refrain from any kind of personal criticism.
    • They should stick to the facts and avoid unsubstantiated claims. Parliamentary speeches should be concise, clear and fact-based.
    • Finally, all speakers should remain mindful of their role as representatives of the people and should strive to maintain the highest standards of public discourse.

     

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