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Subject: Polity

  • Supreme Court’s ‘Basic Structure’ verdict set bad precedent: VP

    court

    The Vice-President while addressing the 83rd Conference of Presiding Officers said that the Kesavananda Bharati case judgment of 1973 set a bad precedent by seeking to establish judicial supremacy.

    Kesavananda Bharati Case (1973)

    • The Kesavananda Bharati judgement, was a landmark decision of the Supreme Court that outlined the basic structure doctrine of the Indian Constitution.
    • The case is also known as the Fundamental Rights Case.
    • The SC in a 7-6 decision asserted its right to strike down amendments to the constitution that were in violation of the fundamental architecture of the constitution.
    • The Court asserted through the Basic Structure doctrine that the constitution possesses a basic structure of constitutional principles and values.
    • Key outcomes were:
    1. Judicial Review: The Court partially cemented the prior precedent Golaknath v. State of Punjab, which held that constitutional amendments through Article 368 were subject to fundamental rights review, but only if they could affect the ‘basic structure of the Constitution’.
    2. Exceptions to Judicial Review: At the same time, the Court also upheld the constitutionality of the first provision of Article 31-C, which implied that amendments seeking to implement the Directive Principles, which do not affect the ‘Basic Structure,’ shall not be subjected to judicial review.

    Why are we discussing it now?

    Ans. Centre vs. Judiciary Tussle

    • The doctrine forms the basis of power of the Indian judiciary to review and override amendments to the Constitution of India enacted by the Parliament.
    • Since few days, Judiciary and Executive are at loggerheads.
    • In political sphere, there is a greater resentment against the SC verdict striking down the NJAC Act.
    • Comments over appointment/transfer of judges in non-transparent manner has become a very common.

     

    National Judicial Appointment Commission (NJAC)

    • The NJAC was a body that was proposed to make appointments of Chief Justices, Supreme Court judges, and High Court judges in a more transparent manner as compared to the existing collegium system.
    • It sought to replace the Collegium System.
    • It was proposed via the National Judicial Appointments Commission Bill, 2014.
    • The bill was passed by both the houses; Lok Sabha and Rajya Sabha, and also received the President’s assent.
    • The commission was established by the 99th Constitutional Amendment Act, 2014.
    • The Act proposed that the members of NJAC would be composed of members from the legislative, judicial, and civil society.

     

    Reasons behind VP’s harsh comments

    Ans. Parliamentary Supremacy (Mandate of the People) overpowers Basic Structure

    • VP said that in a democratic society, “the basic” of any “basic structure” has to be the supremacy of the mandate of the people.
    • Thus the primacy and sovereignty of Parliament and legislature is inviolable.
    • He said all constitutional institutions — judiciary, executive and legislature— are required to remain confined to their respective domains and conform to the highest standards of propriety and decorum.
    • He said the power of Parliament to amend the Constitution and deal with legislation should not be subject to any other authority.

    Conclusion

    • After analyzing both NJAC and the collegium system, it can be inferred that neither of the methods is complete and both lack certain aspects.
    • Many former judges and legal experts are supporting the NJAC.
    • However, legal jurists are divided on NJAC, with some supporting it while others calling for amendments to the Act.
    • It is quite evident that neither the collegium system nor the NJAC is accurate; both have some shortcomings.

     

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  • First of its kind: Governor skipping the text of customary address to the assembly

    Power

    Context

    • Governor of Tamil Nadu left the assembly session of house while chief minister was point out that governor skip the certain portion of the speech which he was suppose to read. This has again raised the questions over powers and functions of governor.

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    History about powers of governor and assembly address

    • Non-interference of Governors under British: A good governor must stay above politics and manifestly be seen as impartial and fair. In 1937, when the Congress won elections in seven provinces, it took office on the condition that the British governors would not interfere in the functioning of its ministries and refrain from exercising “discretion and special powers”.
    • Special powers under the constitution: However, after Independence, India conferred the same special powers on governors.
    • Yogender Singh Handa v. State of Rajasthan (1967): In 1967, Rajasthan Governor Sampuranand skip a part the speech. In Yogender Singh Handa v. State of Rajasthan (1967), the Rajasthan High Court held that some portion read by the governor was good enough to deem the whole address as read.
    • Governor Padmaja Naidu case: On February 8, 1965, when her request for “silence, silence, permit me to address” was ignored, West Bengal Governor Padmaja Naidu left the assembly without delivering the ceremonial address. The Speaker took the chair and announced that the governor had been pleased to make her speech and lay a copy of her speech on the table of the House.

    Powers and functions of the governor

    • Integral part of assembly: The governor is an integral part of the legislative assembly. He calls its sessions and he dissolves the House.
    • Right to address first session of the house: Under Article 176(2(b), he has the right to address the first session of the House. This address is an integral part of constitutional symbolism and has huge significance.
    • Powers of cabinet, not Governor’s: The Constitution gives no discretion to governors in the matter of convening the session of the assembly. Parliamentary democracy being the basic structure of our Constitution, this is the prerogative of the Cabinet though Article 174 does say that the governor from time to time summons the assembly to meet at such time and place “he thinks fit”.
    • Nabam Rebia (2016) case: Governors have no business to question the purpose of convening the sessions of the House. A five-judge bench of the Supreme Court in Nabam Rebia (2016) had observed that the Governor of Arunachal Pradesh, J P Rajkhowa, who advanced the session of the assembly without the advice of the chief minister, had exceeded his jurisdiction as he had no discretion in convening the assembly session.

    Legality of governor skipping the mandatory speech to assembly

    • Governor cannot decline to give a speech: Justice B N Banerjee of the Calcutta High Court in Andul Gafoor Habibullah v. Speaker, West Bengal Assembly (1966) held that the governor cannot decline to deliver his address and refuse to fulfil his constitutional duty.
    • Failure to address is irregularity not legality: The address under Article 176 is mandatory. However, the HC held that when the governor fails to deliver his address under Article 176 and walks out of the House after laying down the address on the table of the House, this is mere irregularity, not illegality.
    • Non-judiciable in court: It cannot be questioned under Article 212, wherein the validity of the House proceedings cannot be challenged on the ground of mere irregularity in the procedure. The petitioner’s claim, in this case, was that since the House did not start its proceedings with the customary address by the governor, it has vitiated the proceedings of the House.

    Implications: If governor refuses/fails to deliver assembly address?

    • Possibility of constitutional crisis: Governors editing/deleting the speech may indeed create a constitutional crisis. The chief minister may refuse to defend the address in his response at the end of the debate on the governor’s address and with the chief minister commanding a majority, the House may reject the resolution on the governor’s speech.
    • CM may need to resign: When the governor’s/president’s address faces such a defeat, it is considered a no-confidence motion and the chief minister or the prime minister as the case may be, needs to resign.
    • Resignation over irregularity: Such a resignation for something that the government did not include in the ceremonial address but the governor had said on its own would not only be grossly unjust and unethical but absolutely undemocratic.
    • Past precedence of resignation: Chief Minister Gurnam Singh of Punjab in 1967 had resigned when the governor’s address was defeated on the floor of the House. UP CM C B Gupta too had to resign in similar circumstances when a resolution thanking the governor was defeated in the UP assembly. Thus, the governor has no discretion in editing the address.

    assembly

    Conclusion

    • Governor is neither a decorative emblem nor a glorified cipher. His powers are limited but he has an important constitutional role to play in the governance of the state and in strengthening federalism. He is the head of the state and all chief ministers, including the Tamil Nadu chief minister, must remember it. All governors too must remain true to their oath of preserving, protecting and defending the Constitution.

    Mains Question

    Q. What are the functions of the Governor with respect to addressing the assembly of the state? What may be the implications of the Governor skipping the address to assembly?

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  • Pravasi Bharatiya Divas (PBD) and Indian Diaspora

    diaspora

    Inaugurating the 17th Pravasi Bharatiya Divas convention on, Prime Minister said Indians living overseas are “brand ambassadors” of the country on foreign soil. The theme of the PBD Convention is “Diaspora: Reliable partners for India’s progress in Amrit Kaal”.

    Pravasi Bharatiya Divas (PBD)

    • PBD is a celebratory day observed (starting in 2003) on 9 January to mark the contribution of the overseas Indian community towards the development of India.
    • The day commemorates the return of Mahatma Gandhi from South Africa to Mumbai on 9 January 1915.
    • Established in 2000, it is sponsored by the Ministry of External Affairs.

    History of the Indian expat

    • The 19th and early 20th centuries saw thousands of Indians shipped to those countries to work on plantations in British colonies, which were reeling under a labour crisis due to the abolition of slavery in 1833-34.
    • As part of the second wave of migration, nearly 20 lakh Indians went to Singapore and Malaysia to work in farms.
    • The third and fourth wave saw professionals heading to western countries and workers going to the Gulf and west Asian countries in the wake of the oil boom.

    Numbers and geographical spread

    diaspora

    • There are 4.7 crore Indians living overseas. The number includes NRIs, PIOs, OCIs, and students.
    • Excluding students, the number stands at 3.22 crore, including 1.87 crore PIOs and 1.35 crore NRIs.
    • According to the World Migration Report, prepared by the International Organisation for Migration under the UN, India has the largest emigrant population in the world.
    • It is the top origin country globally, followed by Mexico, Russian and China.

    Indian Diaspora: Historical perspective

    • Imperialism led-migration: The incorporation of the British Empire in India can be linked to the existence of modern Indian Diaspora all over the world.
    • Indentured labor: Dating back to the nineteenth century, Indian indentured labor was taken over to the British colonies in different parts of the world.
    • World Wars: In the post-World War II period, most of the Indian labor and professionals got scattered and it was a worldwide phenomenon.
    • European reconstruction: The reconstruction of Europe after the war was provided by Indians and other South Asians, particularly in the United Kingdom and Netherlands.
    • Modern brain-drain: Most recently, Indians have made their presence visibly felt in professions in countries like the United States, Canada, and Australia.

    Major sections of Indian Diaspora

    (1) Indians in the Gulf

    • Around 8.5 million Indians live and work in the Gulf countries, one of the largest concentrations of migrants in the world.
    • The geographical and historical proximity makes it a convenient destination for Indians.
    • Today migrants from across India are working and living in the Gulf countries (Saudi Arabia, UAE, Qatar, Bahrain, Oman, and Kuwait).

    (2) Indians in USA

    • In recent decades the population has grown substantially, with 2.4 million Indian immigrants resident in the United States as of 2015.
    • This makes the foreign-born from India the second-largest immigrant group in the US after Mexicans.

    Categorizing Indian’s abroad

    Overseas Indians, officially known as Non-resident Indians (NRIs) or Persons of Indian Origin (PIOs), are people of Indian birth, descent or origin who live outside the Republic of India:

    1. Non-Resident Indians (NRI): NRIs are Indians who are residents of foreign countries.
    2. Persons of Indian Origin (PIOs): The PIO category was abolished in 2015 and merged with the OCI category. However, existing PIO cards are valid till December 31, 2023. PIO refers to a foreign citizen (except a national of Pakistan, Afghanistan Bangladesh, China, Iran, Bhutan, Sri Lanka and Nepal) who at any time held an Indian passport, or who or either of their parents/ grandparents/great grandparents was born and permanently resided in India as defined in Government of India Act, 1935, or who is a spouse of a citizen of India or a PIO.
    3. Overseas Citizens of India (OCIs): A separate category of OCI was carved out in 2006. An OCI card was given to a foreign national who was eligible to be a citizen of India on January 26, 1950, was a citizen of India on or at any time after January 26, 1950, or belonged to a territory that became part of India after August 15, 1947. Minor children of such individuals, except those who were a citizen of Pakistan or Bangladesh, were also eligible for OCI cards.

    Significance of Indian diaspora 

    (A) Contribution in the freedom struggle

    • Mahatma Gandhi’s struggle for ending institutionalized discrimination against Indians in South Africa became an inspiring legend for enduring sentimentalism about the diaspora in modern India.
    • The diaspora also became a vehicle for promoting the cause of Indian independence among the political elites of major countries.
    • As the independence movement gathered momentum at home, it began to influence many Indian communities abroad.

    (B) Diaspora as Cultural extension

    • The act of migration is not just limited to geographical limits; rather it is a cultural extension.
    • Let us take the example of the Sikh community. The Sikhs are one of the largest migrants from India to the UK, Canada and many other countries.
    • They have very well maintained their culture and ethnic existence for decades.

    (C) Remittances

    • Money sent home by migrants is one of the largest financial inflows to developing countries.
    • The latest World Bank Migration and Development Brief, released in November 2022, said, For the first time a single country, India, is on track to receive more than $100 billion in yearly remittances.
    • In 2020, India and China received the largest amounts of international remittances in Asia, with a combined total of more than $140 billion, it added.

    (D) Diaspora as ‘Agents of change’

    • Diaspora acts as ‘agents of change’ facilitating and enhancing investment, accelerating industrial development, and boosting international trade and tourism.
    • Diaspora’s motives to invest in India are long-lasting as many of them wish to establish a long-term base in India.

     (E) Technological development and entrepreneurship

    • Another tangible long-term advantage in nurturing ties with an active diaspora is an accelerated technological sector and increased socio-economic development.
    • Some examples to illustrate this phenomenon are Bengaluru, Gurugram and Hyderabad as thriving IT hubs that not only house multinational companies (MNCs) but also multiple Indian start-ups.

    (F) Enhancing India’s global say

    • India’s permanent membership to the UNSC can become a reality with support from the diaspora.
    • Apart from political pressures and ministerial and diplomatic level lobbying, India can leverage its diaspora to influence states such as Canada and Mexico to support India’s membership

    Most Importantly,

    (G) Diaspora diplomacy

    • The diaspora’s ability to spread Indian soft power, lobby for India’s national interests, and contribute economically to India’s rise is now well-recognized.
    • A less tangible but important advantage in having a large immigrant group is “diaspora diplomacy”.
    • The recent engagement of Indian leaders in US general elections is a continuation of the extraordinary political investment in engaging the Indian diaspora.

    India’s engagement with Diaspora: A policy-wise perspective

    • Many of the themes of India’s contemporary diaspora policy had their origins in the approach of the Indian national movement before independence.
    • The nationalist backlash against the Indian communities in Africa and Asia in the 1950s and 1960s saw Delhi consciously distance itself from the diasporic communities.
    • As India turned inwards, Delhi also took a dim view of the “brain drain” as many well-trained Indians began to look for opportunities elsewhere.
    • It was only in the late 1980s that Delhi began to rethink its approach to the diaspora.

    Change in recent years

    • PM Rajiv Gandhi was the first to appreciate the potential role diaspora could play in advancing national development and improving India’s ties with the US.
    • In 2000, the Pravasi Bharatiya Divas was commenced to be celebrated and also led to the formation of a separate Ministry for Overseas Indians under PM AB Vajpayee.
    • Other innovative initiatives like the Know India Programme (KIP) and Study India Programme (SIP) were launched.
    • These have engaged the youth living abroad and the Tracing the Roots Scheme, through which some Indians have been able to trace their roots in India.

    Most recent initiatives

    • India has been following the spirit of 4 Cs i.e. Connect – Contribute – Celebrate – Care.
    • There is a dedicated Diaspora Welfare Officer.
    • The authorities have been ensuring 100 percent grievance redressal through E-Migration Portal, Madad Portal, and CPGRAMS.

    Various policy initiatives   

    • Education: NRI seats are reserved in all the medical, engineering and other professional colleges.
    • Voting rights: The Representation of the People (Amendment) Bill 2017 the provision would help non-resident Indians (NRIs) to participate in the electoral process through ‘proxy voting’.
    • Know India Program (KIP): It is a flagship initiative for Diaspora engagement which familiarizes Indian-origin youth (18-30 years) with their Indian roots and contemporary India has been refashioned.
    • Minimum Referral Wages (MRW): A number of policies were announced keeping in mind the protection of welfare and interest of Indians abroad; for example, the 2014 Minimum Referral Wages (MRW).
    • Easing the passport facility: The last three years saw the launch of Head Post Offices as passport centers enabling thousands more to apply for a passport.

    Challenges faced by Diaspora

    • Racial antagonism: Rising incidence of hate speech and crimes against Indians by the locals due to racism, and communalism emboldened by coming of nationalist and ultra-nationalist governments to power in many countries.
    • Protectionism: Fear of losing jobs and educational opportunities to outsiders has resulted in stricter visa rules in many countries including the USA, Australia, etc.
    • Terrorism: Sectarian crisis, increasing terrorist activities and war in the Middle East countries (Yemen, Oman, Libya, Syria etc) leave our diaspora vulnerable to attacks.
    • Political Polarization: Many Indians abroad are turning against India since the change of government and some extreme right wing factionists.
    • Anti-national tendencies: India has had problems with negative campaigning and foreign funding, coming from abroad, for separatist movements like the Khalistan movement.

    Way forward

    • India has enjoyed being viewed more favourably by the world since 2014, and the diaspora can further these perceptions.
    • India needs both additional resources as well as better systems to deal with the recurring challenges of supporting citizens abroad.
    • The diaspora can step up and act as Indian ‘ambassadors’, as it is insufficient and ineffective for a country or its missions abroad to rely only on press releases to change public opinion.
    • The diaspora can provide the requisite strategic impulse, which makes it all the more important to unlock their potential.

     

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  • Overseas Citizens of India (OCI) and their concerns

    overseas

    Context

    • Government will observe the 17th Pravasi Bhartiya Divas (PBD) in Indore, Madhya Pradesh. The day is meant to celebrate the contributions of India’s diaspora. The theme for this year’s event is, “Diaspora: Reliable Partners for India’s Progress in Amrit Kaal”.

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    Pravasi Bhartiya Diwas

    • Pravasi Bhartiya Divas (Non-Resident Indian Day) is a celebratory day observed (starting in 2003) on 9 January by the Republic of India to mark the contribution of the overseas Indian community towards the development of India. The day commemorates the return of Mahatma Gandhi from South Africa to Mumbai on 9 January 1915.

    overseas

    Who are the Overseas Citizens of India (OCI)?

    • OCI are not citizens: Overseas Citizenship of India is a form of permanent residency available to people of Indian origin and their spouses which allows them to live and work in India indefinitely. Despite its name, OCI status is not citizenship and does not grant the right to vote in Indian elections or hold public office.
    • It can be revoked: The Indian government can revoke OCI status in a wide variety of circumstances. As of 2020, there are 6 million holders of OCI cards among the Indian Overseas diaspora.

    What are the concerns of OCI/NRI persons?

    • Scheme for dual citizenship: Originally conceptualised in 2003 by the then NDA government led by Prime Minister Atal Bihari Vajpayee, the OCI scheme was envisaged as a dual-citizenship project.
    • All rights of citizen of India: OCIs would enjoy all rights as normal citizens except the right to hold public office and cast their vote.
    • Citizenship to OCI from certain countries: The Vajpayee government introduced the Citizenship (Amendment) Bill, 2003 in Parliament. The statement accompanying the Bill, that was passed by Parliament in December that year clearly stated that it was meant to provide dual citizenship to persons of Indian origin from certain countries.
    • Present government Downgraded OCI status: Nearly two decades later, the Union Home Ministry is downgrading the OCI scheme from dual-citizenship to virtually a residency permit scheme. The ministry’s statements in circulars and courts declaring that OCIs are not Indian citizens and that they would not enjoy any fundamental rights under the Indian Constitution have been particularly disheartening.

    overseas

    What are the ambiguities about the downgrading of OCI status?

    • Confusion over rights: There is considerable legal confusion about the status of OCIs. Can they practice certain professions like journalism without prior government permission? Do contributions by OCIs residing in India to charities/schools violate the country’s laws?
    • Problem in donation: During the pandemic, resident OCIs had to ensure their donations went only to NGOs that had FCRA clearance. As a result, many local level initiatives could not be supported with their monetary contributions.
    • Confusion over the status: Very often OCIs have been confronted with remarks, including at courts, that we are foreigners in India. Unlike several other countries, the Indian Constitution does not have exhaustive provisions on citizenship.

    overseas

    Making a case of citizenship for OCI

    • Vasudaiva kutumbakam philosophy: The Government of India announced that India’s Presidency of G20 will be grounded in the principles of “Vasudaiva kutumbakam” wherein the entire world is considered as one family.
    • Push to Mobility for diaspora: Hopefully such political homilies are reflected in the way the government thinks about the idea of citizenship in relation to the increasingly mobile Indian diaspora.
    • Injustice to people born in India: Clearly, an elemental question is whether it is proper to cancel the citizenship of people born in the country, and who have continued engagement with it, merely because they have acquired foreign citizenship. No other progressive democracy does that today, even though most countries had similar laws when India enacted the Citizenship Act, 1955.
    • Removing the outdated laws: In a recent address, Prime Minister Narendra Modi advised Chief Secretaries of states and Union Territories to focus on quality of service over outdated laws and rules, to achieve the goal of making India a developed country by 2047. Realising the essence of the Citizenship (Amendment) Act 2003 is in the spirit of the PM’s directive.

    Conclusion

    • OCI contribute immensely to India at home and abroad. But granting a citizenship to Overseas citizens of India will create structural asymmetry in economic, social, political life of ordinary people of India. It will open the flood gates for demand for dual citizenships from other sections of diaspora.

    Mains Question

    Q. What are problems of Overseas Citizens of India? Discuss why OCI deserve the better status in India?

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  • Government Litigation

    cases

    Context

    • Much has been said about why we have a staggeringly high number of cases that constitute pendency or cases that are undecided in the court system. Pendency or cases pending in courts have been a source of agony for litigants, lawyers and judges alike. In 2018, the Law Commission of India, in its 230th report, noted that the government is the biggest litigant in the system.

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    Ratio: Number of Judges serving the population

    • India has 21 judges for every million people: India has a terribly low number of judges serving a very large population to be more precise, India has about 21 judges for every million people, as the government recently informed the Rajya Sabha.
    • Comparatively in China: China has about 159 judges for every million people.

    What is cause of concern for the government?

    • Pendency impacts governance and weakens law and order: It is a cause of concern for the government since an arduous dispute resolution system adversely impacts governance and weakens law and order in any country.
    • Government is the largest litigant: Our government has been seized by the burdens of the justice system for long, and is acutely aware of its own role in contributing to the number of cases that enter the courts and remain to be decided.

    Efforts taken by the Government to reduce its litigation

    • Government is well aware: The government has been cognisant of its role in contributing to litigation simply by being the biggest litigator in the courts.
    • Action plan in response to large number of Government litigation: On June 13, 2017, the department of justice of the Government of India, released an Action Plan to reduce Government Litigation. The action plan was in response to the fact that 46 per cent of the total pending cases in the court system pertains to the government.
    • Legal Information Management Briefing System (LIMBS): In 2015, they started the rather aptly named LIMBS project that intends to connect 55 ministries and their departments for litigation management. Aptly named, for it seeks to connect the various limbs of governance of our state. As on January 3, LIMBS shows that there are 6,20,000 cases involving the government pending before the court system.
    • National Litigation Policy (NLP), 2010: The status report to the NLP, 2010, was prepared because it is based on the recognition that the government and its various agencies are the predominant litigants in the courts and tribunals in the country. And, hence, it aimed to transform the government into an efficient and responsible litigant.

    Is all its litigation is initiated by the government?

    • To be fair to the government, not all its litigation is initiated by it.
    • For instance, the government is the catalyst in inter-departmental litigation (between wings of the government) and routine appeals in service matters.
    • However, citizens trigger writ jurisdiction of the courts and file appeals in criminal cases. These also constitute a segment of cases involving the government being heard at various high courts and the Supreme Court.
    • So, while the government can control some of the litigation it is involved in, it is not the catalyst in certain classes of cases that involve it.

    Way ahead

    • Insights provided by the Vidhi Centre: The Vidhi Centre for Legal Policy in its report on Government Litigation published in 2018, provides great insights into where the government can and cannot control the litigation it is party to.
    • Where Government control its litigation: For instance, the government’s 2010 National Litigation Policy (NLP) recognises that service matters should not be normally appealed and only cases which involve questions of constitutional interpretation should be pursued all the way till the Supreme Court. The government should implement this reform suggested by its own policymakers.
    • Reasons to reduce the litigation: There are many good reasons to reduce litigation that involves the government. Reducing the burden on the courts is a prime reason. As Vidhi 2018 notes, the costs involved in pursuing litigation eat into public funds. And a court battle between the individual and the state is also a battle of unequals.

    Conclusion

    • What we need to address the overburdened court system is for the largest litigant to use the court system more efficiently and cautiously. This would be a tremendous start to addressing the problem of pendency. Appointing more judges would be a massive step to helping more dispute resolution as well.

    Mains question

    Q. Pendency of cases haunts Indian judiciary for a very long time. While there are multiple reasons for pendency, it is said that Government is the largest Litigant discuss. Enlist what efforts are taken by the government to reduce its litigation?

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  • Free speech of Ministers, restrictions and the opinion of the court

    restrictions

    Context

    • A Constitution Bench of the Supreme Court on Tuesday unanimously and rightly ruled out any additional curbs on free speech by ministers. It said, like other citizens, they are guaranteed the right to freedom of expression under Article 19(1) (a), governed by the reasonable restrictions laid out in Article 19(2) and those are enough.

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    What is the issue of freedom of speech to Ministers?

    • Scope: Ministers and lawmakers enjoy the freedom of speech and expression under Article 19(1) of the Constitution as other citizens and additional restrictions cannot be imposed to curb their right to free speech.
    • Restrictions: A five-judge Constitution bench held that curbs on free speech cannot extend beyond what is prescribed under Article 19(2) of the Constitution imposes reasonable restrictions and applies equally on all citizens.

    What the court said?

    • Rights are not residual privileges: Court said that the role of the court is to protect fundamental rights limited by lawful restrictions and not to protect restrictions and make the rights residual privileges.
    • Distinction on government’s responsibility and remarks by individual minister: The ruling also made a valid distinction on the government’s vicarious responsibility for ill-judged or hateful remarks made by its individual ministers, the flow of stream in collective responsibility is from the Council of Ministers to the individual ministers. The flow is not on the reverse, namely from the individual ministers to the Council of Ministers.
    • Clarification on the concept of collective responsibility: It is not possible to extend the concept of collective responsibility, it said, to “any and every statement orally made by a Minister outside the House of the People/Legislative Assembly”.
    • Public functionaries should be more responsible while they speak: Even while agreeing with the majority ruling, however, it is possible to underline the concern articulated in the minority judgment over a hateful public discourse “hate speech, whatever its content may be, denies human beings the right to dignity”. And to agree with it when it speaks of the special duty of public functionaries and other persons of influence to be more responsible and restrained in their speech, to “understand and measure their words”.

    What is ‘Hate Speech’?

    • There is no specific legal definition of ‘hate speech’.
    • The Law Commission of India, in its 267th Report, says: “Hate speech generally is an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like.
    • Thus, hate speech is any word written or spoken, signs, visible representations within the hearing or sight of a person with the intention to cause fear or alarm, or incitement to violence.
    • In general, hate speech is considered a limitation on free speech that seeks to prevent or bar speech that exposes a person or a group or section of society to hate, violence, ridicule or indignity

    Brief Analysis: Hate speech by Ministers

    • Problem is real but primarily political: The problem of hate speech by ministers and others belonging to the party in power is real, but it is primarily political.
    • Solution is not in new law as, there are enough provisions to deal with it: The solution is not for the court to draw a new line, or even, as the minority judgment proposed, for Parliament to make another law. There are enough provisions in the statute book to deal with speech that promotes enmity and violence or results in cramping the freedoms of others.
    • Legal provisions can be weaponised so what is needed is a political resolve: What is missing is the political resolve and will of governments to act on instances of hate speech, especially when they involve one of their own, and there are no legal shortcuts to make up for that absence. In fact, the same legal provisions that are designed to curb hate speech can be twisted and turned and weaponised by governments against citizens who dissent and disagree.

    Conclusion

    • The problem of hate speech by ministers and others associated with the party in power is real, but it is primarily political. The solution lies not in making new laws, but in individual responsibility and collective political resolve.

    Mains question

    Q. How do you understand hate speech? Do ministers and MLAs have freedom of speech? Discuss the recent court ruling on free speech restrictions on ministers.

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  • Ministers’ Right to Free Speech and Issues

    minister

    The Supreme Court has held that there is no reason to impose “additional restrictions” on the right to free speech of Ministers and the government is not vicariously liable for disparaging remarks made by them, even if the comments are traceable to state affairs or meant to protect the government.

    Why are we discussing this?

    • Many politicians make unwarranted statements and tender an apology in return.
    • The PM or the CM does not have disciplinary control over the members of the Council of Ministers.
    • In a country like ours, where there is a multi-party system and where coalition Governments are often formed, it is not possible at all times for the whip to control the politician’s behavior.
    • A derogatory speech that closely resembles hate speech cannot fall within the ambit of the free speech right.

    Do ministers and lawmakers have absolute freedom of speech?

    • Scope: Ministers and lawmakers enjoy the freedom of speech and expression under Article 19(1) of the Constitution as other citizens and additional restrictions cannot be imposed to curb their right to free speech.
    • Restrictions: A five-judge Constitution bench held that curbs on free speech cannot extend beyond what is prescribed under Article 19(2) of the Constitution imposes reasonable restrictions and applies equally on all citizens.

    What is the case?

    • The proceedings in the case began when the top court took cognisance of a controversial statement made by former UP minister in July 2016.
    • He had allegedly termed a gang rape case as part of a “political conspiracy”. While he was let off with an unconditional apology, the Court agreed to examine the larger issue.
    • In October 2017, a three-judge bench referred the matter to the constitution bench to decide on various aspects of the matter.

    Key issues examined

    • Free speech and sensitive issues: The top priority was to examine whether ministers, public functionaries and lawmakers can claim freedom of speech while expressing views on sensitive matters.
    • Free speech and state matters: Another key aspect of the matter was whether a statement by a minister in relation to any affairs of the State or for the protection of government can be attributed vicariously to the government itself.

    What does Article 19 say?

    • Freedom: Article 19(1) (a) guarantees the freedom of speech and expression to all citizens. It is the first condition of liberty and plays an important role in forming public opinion.
    • Restrictions: As per Article 19(2), restrictions can be imposed upon the freedom of speech and expression in the interests of:
    1. Sovereignty and integrity of India,
    2. Security of the state,
    3. Friendly relations with foreign states,
    4. Public order, decency or morality, or
    5. In relation to contempt of court,
    6. Defamation, or
    7. Incitement to an offense

    What does the judgment say about free speech restrictions?

    • Citizens had the right to petition the Court for violations of Article 19 (freedom of expression) and Article 21 (right to life).
    • A statement made by the Minister, inconsistent with the rights of the citizens, may not by itself be actionable.
    • It is not possible to extend this concept of collective responsibility to any and every statement orally made by a Minister outside the House of the People/Legislative Assembly.

    Way forward

    • Legal framework: A proper legal framework was necessary before taking action as a constitutional tort.
    • Political will: Parliament could enact legislation or code to restrain citizens in general and public functionaries in particular from making disparaging or vitriolic remarks against fellow citizens.
    • Code of conduct: Likewise, political parties should come up with a code of conduct to regulate and control the actions and speech of their functionaries and members.

     

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  • Sixth Schedule and Ladakh

    ladakh

    A high-powered committee to ensure protection of land and employment for the people of Ladakh does not address the demand for inclusion of State under the Sixth Schedule of the Constitution.

    What is the Sixth Schedule?

    • The Sixth Schedule under Article 244 provides for the formation of autonomous administrative divisions — Autonomous District Councils (ADCs).
    • ADCs have some legislative, judicial, and administrative autonomy within a state.
    • The Sixth Schedule applies to the NE states of Assam, Meghalaya, Mizoram (three Councils each), and Tripura (one Council).

    Composition of ADCs

    • ADCs have up to 30 members with a term of five years.
    • It can make laws, rules and regulations with regard to land, forest, water, agriculture, village councils, health, sanitation, village- and town-level policing, inheritance, marriage and divorce, social customs and mining, etc.
    • The Bodoland Territorial Council in Assam is an exception with more than 40 members and the right to make laws on 39 issues.

    Why does Ladakh want to be part of the Sixth Schedule?

    • Tribal populations: According to the 2011 Census, the tribal population in the UT of Ladakh is 79.61% of the total population.
    • Local aspirations: There was much enthusiasm initially, mostly in Leh, after the repeal of Art. 370 which created two new UTs.
    • Negligence in erstwhile J&K state: Buddhist-dominated Leh district had long demanded UT status because it felt neglected by the erstwhile state government.
    • Denial of Legislature: The enthusiasm waned as it was understood that while the UT of J&K would have a legislature, the UT of Ladakh would not.
    • Inadequate representation: The administration of the region is now completely in the hands of bureaucrats with only 1 MP.
    • New domicile criteria: The changed domicile policy in Jammu and Kashmir has raised fears in the region about its own land, employment, demography, and cultural identity.
    • Statehood demands: A coalition of social, religious, and political representatives in Leh and Kargil has demanded full statehood for Ladakh.

    Cultural significance of Ladakh

    • Ladakh is historically perceived as a cosmopolitan region with centuries of multiple cultural settings.
    • It was an Asian pivot – the people here traversed diverse cultural boundaries and engaged with ideas.

    Can Ladakh be included in Sixth Schedule?

    • NCST Recommends: In September 2019, the National Commission for Scheduled Tribes recommended the inclusion of Ladakh under the Sixth Schedule.
    • Distinct culture: It was predominantly tribal (more than 97%), people from other parts of the country had been restricted from purchasing or acquiring land there, and its distinct cultural heritage needed preservation.

    Legal hurdles

    • Fifth schedule as an alternative: The Constitution is very clear, Sixth Schedule is for the Northeast. For tribal areas in the rest of the country, there is the Fifth Schedule.
    • Exclusive provision for NE: Notably, no region outside the Northeast has been included in the Sixth Schedule.
    • Requires Constitutional Amendment: It remains the prerogative of the government. For this, a constitutional amendment is required.

     

    Try this question from CSP 2015:

    Q.The provisions in Fifth Schedule and Sixth Schedule in the Constitution of India are made in order to-

    (a) Protect the interests of Scheduled Tribes

    (b) Determine the boundaries between States

    (c) Determine the powers, authority and responsibilities of Panchayats

    (d) Protect the interests of all the Border States

     

    [wpdiscuz-feedback id=”auf90w3qys” question=”Please leave a feedback on this” opened=”1″]Post your answers here.[/wpdiscuz-feedback]

     

     

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  • Kalasa-Banduri Nala Project

    nala

    Karnataka’s decision to go ahead with a water diversion project on river Mahadayi has escalated its long-standing dispute on the issue with neighbouring Goa.

    What is the Kalasa-Banduri Nala Project?

    • The Kalasa Banduri Nala project aims to divert water from Mahadayi to satisfy the drinking water needs of Belagavi, Dharwad, Bagalkot and Gadag districts.
    • Though the project was first proposed in the early 1980s, it has remained on paper owing to a dispute between Karnataka, Goa and Maharashtra.
    • As per plans, barrages are to be built against Kalasa and Banduri streams — tributaries of Mahadayi — and water diverted towards Karnataka’s parched districts.

    The larger issue: Mahadayi dispute

    • Mahadayi originates inside the Bhimgad Wildlife Sanctuary in the Belagavi district of Karnataka and flows into the Arabian Sea in Goa.
    • Goa, under its then CM Manohar Parrikar, approached the Centre, urging it to assess the available resources in the river and allocate water to the three basin states — Goa, Maharashtra and Karnataka.
    • Due to the protests in Goa and also due to concerns over ecological damage, the project was put on hold by the then government.
    • The dispute gained steam in 2006, when Karnataka decided to start work on the project.
    • Goa then approached the Supreme Court, seeking the creation of a Tribunal to settle the water sharing dispute.
    • A Tribunal was finally set up by the UPA government in November 2010.

    What did the Tribunal award?

    • The Tribunal in 2018 awarded 13.42 TMC water from Mahadayi river basin to Karnataka, 1.33 TMC to Maharashtra and 24 TMC to Goa.
    • In Karnataka’s share, 5.5 TMC was to meet drinking water needs and 8.02 TMC was for hydro-electricity generation.
    • Of the 5.5 TMC, 3.8 TMC was to be diverted to Malaprabha basin through Kalasa and Banduri Nalas (canals).
    • This was notified by the Central government in February 2020.

    Issues raised with the Tribunals award

    • After the Tribunal award, Goa filed a Special Leave Petition in the Supreme Court in July 2019, challenging the quantum of allocation.
    • Subsequently, in October 2020, it filed a contempt petition before the SC, accusing Karnataka of illegally diverting water from the Mahadayi basin.
    • Civil appeals were also filed by Maharashtra over the dispute.

    Also read:

    In news: Interstate River Water Disputes Act, 1956

     

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  • Remote EVM for Migrant Voters

    evm

    The Election Commission of India said that it has developed a prototype for a Multi-Constituency Remote Electronic Voting Machine (EVM) which would enable remote voting by migrant voters.

    Electronic Voting Machine (EVM)

    • Electronic voting is the standard means of conducting elections using Electronic Voting Machines (EVMs) in India.
    • The system was developed and tested by the state-owned Electronics Corporation of India and Bharat Electronics in the 1990s.
    • They were introduced in Indian elections between 1998 and 2001, in a phased manner.

    What are Remote EVMs?

    • Remote Electronic Voting Machines (RVM) can handle multiple constituencies from a single remote polling booth.
    • The idea is to implement voter portability as a pilot project in the upcoming Assembly elections in nine states in 2023.
    • This means that if the pilot is successful then in the 2024 general elections voter portability can be fully implemented.

    Need for RVMs

    • Ensuring participative elections: The inability to vote due to internal migration is one of the prominent reasons to be addressed to improve voter turnout and ensure participative elections.
    • Migration-based disenfranchisement: There were multifarious reasons for a voter not opting to register in a new place of residence, thus missing out on exercising the right to vote.
    • Increasing voter turnout: The voter turnout in General Elections 2019 was 67.4% and the ECI is concerned about the issue of over 30 crore electors not exercising their franchise and also differential voter turnout in various States/UT.

    Significance of the move

    • Panacea to migration-led deprivation: Out-migration due to the need to work, marriage, and education, is predominant among the rural population in overall domestic migration.
    • Increasing voter turnout: Approximately 85% of the internal migration is within the States.
    • Multiple booth targeting: This modified form of EVM can handle up to 72 multiple constituencies from a single remote polling booth.

    Challenges for RVMs

    Many political parties have already flagged the inherent issues such as-

    • Defining domestic migrants
    • Implementation of Model Code of Conduct
    • Ensuring secrecy of voting
    • Facility of polling agents for identification of voters
    • Process and method of remote voting and
    • Counting of votes

    Technical issues

    • Amendment to legacy laws: Among the laws and rules which would need an amendment to implement remote voting is The Representation of People’s Act of 1950 and 1951, The Conduct of Election Rules, 1961 and The Registration of Electors Rules, 1960.
    • Vagueness over Migration: The definition of migrant voter would also need to be reworked with respect to retaining registration at the original place in the context of the legal construct of “ordinary residence” and “temporary absence”.
    • Territorial constituency concept: The territorial constituency concept of remote voting and defining remoteness itself that is an outside constituency, outside the district or outside state will need to be dealt with.
    • Administrative challenges: These include enumerating remote voters-self declaration, ensuring secrecy of voting at remote locations, provision of polling agents at remote voting booths, and ensuring identification of voters to avoid impersonation.
    • Acceptance issues: Acceptance of EVMs has been a contested issues. This has somehow eased after the introduction of the voters-verifiable paper-audit trial (VVPAT).

    Way forward

    • The initiative, if implemented, can lead to a social transformation for the migrants and connect with their roots as many times they are reluctant to get themselves enrolled at their place of work.
    • Frequently changing residences, not enough social and emotional connect with the issues of an area of migration will no longer remain obstacles.

     

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