đŸ’„Join UPSC 2027,2028 Mentorship (July Batch) + XFactor Notes & Microthemes PDF
Talk to Mentor

Civilsdaily

Login

Subject: Polity

  • Move to change procedure for inclusion on ST list is put on hold

    The Union Government has put on hold a proposal to change the procedure for scheduling new communities as Scheduled Tribes, which has been in the pipeline for more than eight years.

    Why in news?

    • The proposal to change the procedure was based on the recommendations of a government task force constituted in February 2014, headed by then-Tribal Affairs Secretary Hrusikesh Panda.
    • It called the existing procedure:
    1. Cumbersome and time-consuming
    2. Defeats the Constitutional agenda for affirmative action and inclusion

    Who are the Scheduled Tribes?

    • The term ‘Scheduled Tribes’ first appeared in the Constitution of India.
    • Article 366 (25) defined scheduled tribes as “such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this constitution”.
    • Article 342 prescribes procedure to be followed in the matter of specification of scheduled tribes.
    • Among the tribal groups, several have adapted to modern life but there are tribal groups who are more vulnerable.
    • The Dhebar Commission (1973) created a separate category “Primitive Tribal Groups (PTGs)” which was renamed in 2006 as “Particularly Vulnerable Tribal Groups (PVTGs)”.

    How are STs notified?

    • As per the current procedure, each proposal for the scheduling of a new community as ST has to originate from the relevant State Government.
    • It is then sent to the Ministry of Tribal Affairs, which sends it to the Office of the Registrar General of India (RGI).
    • Once approved by the Office of the RGI, it is sent to the National Commission for Scheduled Tribes (NCST), and only after its approval is it sent to the Cabinet.

    Status of STs in India

    • The Census 2011 has revealed that there are said to be 705 ethnic groups notified as Scheduled Tribes (STs).
    • Over 10 crore Indians are notified as STs, of which 1.04 crore live in urban areas.
    • The STs constitute 8.6% of the population and 11.3% of the rural population.

    Issues with the procedure of ST notification

    The Panda committee had explained that there were multiple obstacles unnecessarily preventing at least 40 communities from being listed as ST.

    1. Exclusion over name: Several tribes pronounced or spelt their community’s name in different ways; some communities were split when new States were created, leaving them as ST in one State and not in the other;
    2. Migration led exclusion: Some tribespeople were forcefully taken as indentured labour to other States where they were left out of the ST list.
    3. No ethnographic study: The modalities not only lacked sufficient anthropologists and sociologists to comment on proposals for exclusion or inclusion.

    Recommendations to change the procedure

    The Panda committee recommends-

    • Once a proposal is received from a State Government, it should be circulated simultaneously to the NCST.
    • The Office of the RGI and the Anthropological Survey of India, each of which would have six months to give their opinions.
    • A special Committee on scheduling would then consider the proposal and the opinions of the above-mentioned authorities and make a final recommendation within one month.
    • The Committee would consist of the Tribal Affairs Secretary, and representatives of the NCST, Office of the RGI, Anthropological Survey of India, State Government and the concerned State tribal research institute.

     

    Click and get your FREE Copy of CURRENT AFFAIRS Micro Notes

    (Click) FREE1-to-1 on-call Mentorship by IAS-IPS officers | Discuss doubts, strategy, sources, and more

  • The curious case of Fiscal Federalism in India

    Federalism

    Context

    • NITI Aayog has not taken any major steps since its constitution to promote cooperative federalism. Contrary to its public statements on promoting cooperative federalism, the Government of India has been accused of doing exactly the opposite. The following instances clearly demonstrate as to how the central government’s policies have undermined the spirit of federalism and eroded the autonomy of the States.

    Why the states are angry over hypocrisy of the Centre?

    • Centre raises off budget borrowings states are restricted: The borrowings by corporations against State guarantees are mostly used for capital investment. The Centre has also been raising off Budget borrowings but mainly for meeting revenue expenditure.
    • CAG report on extra budgetary resources: The Comptroller and Auditor General of India (C&AG) Report on the Compliance of FRBM Act for 2017-18 and 2018-19 pointed out as many as eight instances of meeting revenue expenditure through Extra Budgetary Resources (EBR).
    • Unjustified limitations on states: Revenue expenditure met through EBR by the Centre amounted to â‚č81,282 crore in 2017-18 and â‚č1,58,107 crore in 2018-19. Such borrowings were not reflected in the Budget of the central government. In view of this, treating off Budget borrowings of State corporations as States’ borrowings retrospectively is totally unjustified.

    Federalism

    Unhappiness about the grants by the finance commission’s recommendations?

    • Special grants are not given to states: The Fifteenth Finance Commission, in its first report, had recommended a special grant to three States amounting to â‚č6,764 crore to ensure that the tax devolution in 2020-21 in absolute terms should not be less than the amount of devolution received by these States in 2019-20. This recommendation was not accepted by the Union Government.
    • Nutritional grants are accepted: the recommendation relating to grants for nutrition amounting to â‚č7,735 crore was not accepted.
    • Grants to states are refused by the Centre: A similar approach has been followed by the Union Government with regard to grants to States recommended by the Finance Commission for the period 2021-26.
    • Sector and state specific grants: The sector specific grants and State specific grants recommended by the Commission amounting to â‚č1,29,987 crore and â‚č49,599 crore, respectively, have not been accepted. This clearly demonstrates that the Union Government has undermined the stature of the institution of the Finance Commission and cooperative federalism.

    How borrowing of the states is controlled by the Centre?

    • Changes in off budget borrowing norms: decision to treat off Budget borrowings from 2021-22 onwards serviced from the State budgets as States’ borrowings and adjusting them against borrowing limits under Fiscal Responsibility and Budget Management (FRBM) in 2022-23 and following years is against all norms.
    • No recommendations by finance commission: This is the first time that the Government of India is proposing to treat off Budget borrowings as government borrowings retrospectively from 2021-22. The Government of India has indicated that such a decision is in accordance with the recommendation of the Finance Commission. In fact, there is no recommendation to this effect by the Fifteenth Finance Commission. The Finance Commission recommended that governments at all tiers may observe strict discipline by resisting any further additions to the stock of off Budget transactions.
    • No amendment to FRBM act: It observed that in view of the uncertainty that prevails now, the timetable for defining and achieving debt sustainability may be examined by a high-powered intergovernmental group and that the FRBM Act may be amended as per the recommendations of this group to ensure that the legislations of the Union and the States are consistent. No such group has been appointed so far by the Centre.

    Federalism

    Cess and Surcharge- A tool to raise revenue for Centre not available to the states

    • Rising share of cess and surcharges: The government has been resorting to the levy of cesses and surcharges, as these are not shareable with the States under the Constitution. The share of cesses and surcharges in the gross tax revenue of the Centre increased from 13.5% in 2014-15 to 20% in the Budget estimates for 2022-23.
    • States don’t get all share in divisible pool: Though the States’ share in the Central taxes is 41%, as recommended by the Fifteenth Finance Commission, they only get a 29.6% share because of higher cesses and surcharges.
    • Undermining the purpose of cess: The C&AG in its Audit Report on Union Government Accounts for 2018-19 observed that of the â‚č2,74,592 crore collected from 35 cesses in 2018-19, only â‚č1,64,322 crore had been credited to the dedicated funds and the rest was retained in the Consolidated Fund of India. This is another instance of denying States of their due share as per the constitutional provisions.
    • Increasing centrally sponsor scheme and burden on state: Committee after committee appointed by the Government of India has emphasised the need to curtail the number of Centrally Sponsored Schemes (CSS) and restrict them to a few areas of national importance. But, what the Government of India has done is to group them under certain broad umbrella heads (currently 28). In addition, in 2015, the Centre increased the States’ share in a number of CSS, thereby burdening States. Most of the CSS are operated in the subjects included in the State list. Thus, States have lost their autonomy.
    • NITI Aayoge recommendations are not accepted: The Sub-Committee of Chief Ministers appointed by NITI Aayog has recommended a reduction in the number of schemes and the introduction of optional schemes. These recommendations have not been acted upon.

    Federalism

    Conclusion

    • Finance commission is balancing wheel of fiscal federalism. Share of states in central taxes may have increased but cess and surcharges have also increased. Off budget borrowing on states can lifted provided should reduce the unnecessary freebies in the state budget.

    Mains Question

    Q. Fiscal federalism is tilted in favour of Centre. Elaborate. How Cess and surcharges are discriminatory against the state governments?

    (Click) FREE1-to-1 on-call Mentorship by IAS-IPS officers | Discuss doubts, strategy, sources, and more

     

  • Arun Goel appointed as Election Commissioner

    Former secretary of the Ministry of Heavy Industries Arun Goel has been appointed as the Election Commissioner.

    About Election Commission of India (ECI)

    • The ECI is a constitutional body was established by the Constitution of India to conduct and regulate elections in the country.
    • Article 324 of the Constitution provides that the power of superintendence, direction, and control of elections.
    • The body administers elections to the Lok Sabha, Rajya Sabha, State Legislative Assemblies, State Legislative Councils and the offices of the President and Vice President of the country.
    • Thus, the Election Commission is an all-India body in the sense that it is common to both the Central government and the state governments.
    • The Election Commission operates under the authority of Constitution per Article 324 and subsequently enacted Representation of the People Act.

    Composition of ECI

    • The ECI was established in 1950 and originally only had one Chief Election Commissioner.
    • Two additional Commissioners were appointed to the commission for the first time during the 1989 General Election, but they had a very short tenure, ending on 1 January 1990.
    • The Election Commissioners are assisted by Deputy Election Commissioners, who are generally IAS officers.
    • They are further assisted by Directors General, Principal Secretaries, and Secretaries and Under Secretaries.
    • At the state level, Election Commission is assisted by the Chief Electoral Officer of the State, who is an IAS officer of Principal Secretary rank.
    • At the district and constituency levels, the District Magistrates (in their capacity as District Election Officers), Electoral Registration Officers and Returning Officers perform election work.

    Tenure

    • The tenure of election commissioners is not prescribed by Indian Constitution.
    • However, the Election Commission conduct of service Act, 1991 prescribes the term of service.
    • Chief Election Commissioner or an Election Commissioner shall hold office for a term of six years, or up to the age of 65 years, whichever is earlier, from the date on which he/she assumes his/her office.

    Removal from office

    • The Chief Election Commissioner of India can be represented removed from their office in a manner similar to the removal of a judge of the Supreme Court of India.
    • It requires a resolution passed by the Parliament of India a two-thirds majority in both the Lok Sabha and the Rajya Sabha on the grounds of proved misbehaviour or incapacity.
    • Other Election Commissioners can be removed by the President of India on the recommendation of the Chief Election Commissioner.
    • A Chief Election Commissioner has never been impeached in India.

    Recent incidence of criticisms of ECI

    Ans. Partiality in Elections

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

    Importance of ECI for India

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

    Issues with ECI

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

     

    Click and get your FREE Copy of CURRENT AFFAIRS Micro Notes

    (Click) FREE1-to-1 on-call Mentorship by IAS-IPS officers | Discuss doubts, strategy, sources, and more

  • Constituent Assembly Debate and Ideal Conduct of Governor

    Governor

    Context

    • In recent years, there has been an erosion of constitutional provisions, constitutional morality, and constitutional ethos being witnessed among various constitutional bodies. The conduct of the Governors of some States has made a mockery of the Constitution and its limitations.

    Governor

    Constituent assembly debates about the Governor

    • Exercise of Power according to constitution: In 1949, Prof. K.T. Shah debating Article 130 (now Article 154) said: “the Constitution should make it imperative upon the Governor to use its power in accordance with the Constitution and the Law, that is to say, on the advice of his Ministers as provided for in the subsequent clauses and in other parts of the Constitution.”
    • Appointment of governor by president: It was hotly debated whether the Governor should be appointed by the President of India or should be elected. Fearing that this would create a parallel State leadership, the Assembly instead adopted appointment by the President.
    • Good governor and Bad Governor: G. Kher said: “a Governor can do a great deal of good if he is a good Governor and he can do a great deal of mischief, if he is a bad Governor, in spite of the very little power given to him under the Constitution”
    • Friendly intervention of the Governor: K. Sen said, “The question is whether by interfering, the Governor would be upholding the democratic idea or subverting it. It would really be a surrender of democracy. We have decided that the Governor should be a constitutional head. He would be the person really to lubricate the machinery and to see to it that all the wheels are going well by reason not of his interference, but his friendly intervention.”
    • Aid and advice of cabinet: R. Ambedkar said, according to the principles of the New Constitution, Governor is required to follow the advice of his ministry in all matters. Therefore, the real issue before the House is not nomination or election, but what powers you propose to give to your Governor.
    • Nomination of governor and not election: If the Governor is a purely constitutional Governor with no more powers than what we contemplate expressly to give him in the Act. I personally do not see any very fundamental objection to the principle of nomination.”

    Governor

    Constitutional Provision Regarding Governor

    • Article 153: Provides a Governor for each State, and by virtue of Article 154, the executive power of the State shall be vested in the Governor “Shall be exercised by him directly or through officers subordinate to him in accordance with this Constitution”.
    • Article 154(2)(a): Prohibits the Governor from exercising any function “conferred by existing law on any other Authority”.
    • Article 163: Categorically provides that “there shall be a council of ministers with the Chief Minister at the head to aid and advise the Governor… except in so far as he is by or under this Constitution required to exercise his function or any of them in his discretion”.

    How governor ideally supposed to conduct his duty?

    • Shamsher Singh vs State of Punjab: The Supreme Court, in Shamsher Singh vs State of Punjab, decided on this issue in 1974: The Governor exercises “all his powers and functions” by making rules for the convenient transactions of the business of the government of the State in accordance with Article 166 of the Constitution. These are called Rules of Business.
    • Satisfaction of governor is satisfaction of cabinet: The Court however amplified that “wherever the constitution requires satisfaction of the President or the Governor for the exercise of any power or function by the President or the Governor, as the case may be, as for example in Articles 123, 213, 311(2) proviso (c), 317, 352(1), 356 and 360. The satisfaction required by the Constitution …. is the satisfaction of the President or of the Governor in the Constitutional sense under the Cabinet system of the Government”.
    • Use of discretion in harmony with council of ministers: The Court went on to hold that “the discretion conferred on the Governor means that as the Constitutional or the formal head of the State, the power is vested in him” and that it is only in the exercise of the power under Article 356 that the Governor will be justified in exercising his discretion even against the aid and advice of his council of ministers as per his discretionary power but, in all other matters where the Governor acts in his discretion, he will act in harmony with his Council of Ministers.
    • No parallel administration by governor: The Constitution does not aim at providing a parallel administration. The basic philosophy is that in a democracy, the elected Ministers must accept responsibility for every executive act and that the Council of Ministers alone represents a responsible form of government in the States.

    Governor

    Conclusion

    • Governor’s role is to assist the Chief minister of state and not creating the trouble for Chief Minister. Governor should not act in a manner that undermines the dignity of constitutional post of Governor. Governor must follow the constitutional morality while discharging his duty.

  • Political participation and representation of Women in India

    representation

    Context

    • A truly representative democracy seeks adequate representation of women in politics. India is the largest and one of the most resilient parliamentary democracies in the world. Women’s representation in India’s Parliament has improved since independence. It is an important metric to evaluate progress in bridging gender inequalities in the country.

    Background: Gender Inequality in Politics

    • Women historically been Politically marginalized: Women, who constitute almost one-half of the world’s population (49.58 percent), have historically been politically marginalized in both developed and developing nations.
    • Beginning of social reforms: From the mid-19thcentury onwards, however, social movements have succeeded in effecting widespread reforms.
    • UN charter: The charter of the United Nations Organization (UNO, started in 1945) supported women’s rights.
    • International Bill of Rights for women: With the rise of feminist movements of the 1960s and ‘70s, the UN General Assembly in 1979 adopted the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), often considered as an International Bill of Rights for women. In the Convention, Article 7 upholds women’s right to hold political and public office.
    • Millennium development goals (MDGs), included gender equality: In 2000, UN member states adopted the Millennium Declaration and outlined eight Millennium Development Goals (MDGs), to be achieved by 2015, which included promoting gender equality.
    • Empowering women under Sustainable Development Goals (SDGs): In January 2016 the initiative was extended to pursue 17 Sustainable Development Goals (SDGs) of which Goal 5 seeks to “achieve gender equality and empower all women and girls”, ensuring “women’s full and effective participation and equal opportunities for leadership at all levels of decision-making in political, economic and public life.”

    representation

    The present status of Women representation in politics worldwide.

    • Representative governments increased but women count remains low: According to UN Women, as of September 2022, there were 30 women serving as elected heads of state and/or of government in 28 countries (out of a total of 193 UN member states).
    • Dichotomy in active participation: There is the dichotomy between the rapid increase of women’s participation as voters in elections and other political activities, and the slow rise of female representation in Parliament.
    • Global average women representation: As of May 2022, the global average of female representation in national parliaments was 26.2 percent.
    • Above average representation: The Americas, Europe, and Sub-Saharan Africa have women’s representation above the global average;
    • Below average representation: Asia, the Pacific region, and the Middle East and Northern Africa (MENA) region, are below average.
    • Varied representation within Asian countries:
    • The South Asian countries faring worse than the others.
    • IPU data of May 2022 showed that women’s representation in Nepal, for example, was 34 percent, in Bangladesh 21 percent, in Pakistan 20 percent, in Bhutan 17 percent and in Sri Lanka 5 percent.
    • For India, women’s representation in the Lok Sabha (the Lower House) has remained slightly below 15 percent.
    • The study does not include Afghanistan, but World Bank data of 2021 stated that female representation in the country’s last parliament was 27 percent.

    representation

    Journey of Women’s Political Participation in India 

    • Before Independence: India has a history of marginalization and exploitation of women framed by patriarchal social structures and mindsets.
    • Beginning of social reforms and participation in Freedom struggle: The Indian freedom movement, starting with the swadeshi in Bengal (1905-08) also witnessed the impressive participation of women, who organized political demonstrations and mobilized resources, as well as occupied leadership positions in those movements.
    • Post-Independence: After India attained independence, its Constitution guaranteed equal status for men and women in all political, social and economic spheres.
    • Equality guaranteed by The Constitution:
    • Part III of the Constitution guarantees the fundamental rights of men and women.
    • The Directive Principles of State Policy ensure economic empowerment by providing for equal pay for equal work by both men and women, humane conditions of work, and maternity relief.
    • Any Indian citizen who is registered as a voter and is over 25, can contest elections to the lower house of Parliament (Lok Sabha) or the state legislative assemblies; for the upper house (Rajya Sabha) the minimum age is 30.
    • Articles 325 and 326 of the Constitution guarantee political equality and the right to vote.
    • Reservation for women in local bodies: In 1992, the 73rdand 74th amendments to the Constitution provided for reservation of one-third of the total number of seats for women in Panchayati Raj Institutions (PRIs) and municipal bodies.

    representation

    Three main parameters to assess women’s participation in politics in India

    1. Women as Voters: In the last Lok Sabha election of 2019, almost as many women voted as men a watershed in India’s progress towards gender equality in politics which has been called a “silent revolution of self-empowerment The increased participation, especially since the 1990s, is attributed to a number of factors.
    2. Women as Candidates: Overall, however, while women candidates in parliamentary elections have increased over time their proportion compared to male candidates remains low. In the 2019 Lok Sabha elections, of the total of 8,049 candidates in the fray, less than 9 percent were women.
    3. Women’s Representation in Parliament: Although women’s participation as voters in elections has increased significantly, the data on women’s representation in both the Lok Sabha and Rajya Sabha suggests that the proportion of women representatives has remained low in comparison to their male counterparts.

    Just to know:  

    • The highest proportion of women representatives elected to the Lok Sabha so far was in the 2019 elections, and it was less than 15 percent of total
    • The number of women candidates and MPs varies greatly across states and parties.
    • In the present Lok Sabha (17th), Uttar Pradesh and West Bengal have the highest numbers of women MPs. In terms of percentage, Goa and Manipur had fielded the highest proportion of women candidates.

    Why female representation in Parliament and state legislatures remained low?

    • Inaccessibility of Institutions: Election records show that most political parties, though pledging in their constitutions to provide adequate representation to women, in practice give far too few party tickets to women candidates. A study found that a large section of women who do get party tickets have family political connections, or are ‘dynastic’ politicians. With normal routes of accessibility limited, such connections are often an entry point for women
    • Notion of women less likely to win: It is still widely held in political circles that women candidates are less likely to win elections than men, which leads to political parties giving them fewer tickets.
    • Challenging Structural Conditions: Election campaigns in India are extremely demanding and time-consuming. Women politicians, with family commitments and the responsibilities of child care, often find it difficult to fully participate
    • Highly vulnerable: Women politicians have been constantly subjected to humiliation, inappropriate comments, abuse and threats of abuse, making participation and contesting elections extremely challenging.
    • Expensive electoral system: Financing is also an obstacle as many women are financially dependent on their families. Fighting parliamentary elections can be extremely expensive, and massive financial resources are required to be able to put up a formidable contest. Absent adequate support from their parties, women candidates are compelled to arrange for their own campaign financing this is a huge challenge that deters their participation
    • Internalized patriarchy: A phenomenon known as ‘internalized patriarchy’ where many women consider it their duty to priorities family and household over political ambitions.

    Why women participation in law making process is so important?

    • Political empowerment: Legislative representation is fundamental to political empowerment, enabling participation in the law-making process. Legislatures play a vital role in raising debates and discussions on various aspects of governance and in exacting accountability from the government.
    • Shows the status of gender parity: Women’s representation in the national parliament is a key indicator of the extent of gender equality in parliamentary politics.
    • Women bring different skills to politics: According to Political scientist, Anne “women bring different skills to politics and provide role models for future generations; they appeal to justice between sexes.
    • Facilitates specific interests of women in policy: Their inclusion in politics facilitates representation of the specific interests of women in state policy and creates conditions for a revitalized democracy that bridges the gap between representation and participation.
    • Highly effective and less likely to be criminal and corrupt: Study found that, women legislators perform better in their constituencies on economic indicators than their male counterparts also women legislators are less likely to be criminal and corrupt, more efficacious, and less vulnerable to political opportunism.

    Way ahead

    • It should be made legally obligatory for every registered political party to give one-third of the total number of party tickets it distributes at every election to women. The Representation of People Act, 1950, will have to be amended to enable this strategy.
    • Second, if the party-level reform proves difficult, the Women’s Reservation Bill 2008 which mandated reservation of one-third of parliamentary and state assembly seats for women will have to be revived.

    Notes in short: Can be used in answers, essays and debates accordingly.

    1. Despite strong patriarchal norms, the country is seeing an increase in women’s political participation, parallel to higher levels of education and growing financial independence.
    2. The number of women contesting parliamentary and state legislative elections remains limited.
    3. Where constitutionally mandated reservation of seats for women has been provided at the local self-government level, women’s representation has increased.
    4. However, political parties, the primary vehicle of electoral politics, remain largely inaccessible for women to contest parliamentary and legislative elections even after 75 years of Indian independence.

    Conclusion

    • The organic shift to opening up spaces for women in Indian parliamentary politics has been slow. More women are needed in these platforms to transform the discourse on governance and policy-making, and bring India closer to becoming a truly inclusive and representative democracy.

     

  • Indian Judiciary: A Call for Reforms

    Judiciary

    Context

    • The reach of India’s highest court is all-pervasive. The Supreme Court sits in final judgment over decisions not only of the high courts in the states, but also over a hundred tribunals, central and state, functioning throughout India. Hence the accountability of apex court crucial for judicial system in India.

    Brief in other words: Significance of judiciary

    • Decisions of Courts are binding on all: The law declared by the Supreme Court, its pronouncements on the constitutional validity of enacted law, including constitutional amendments, is binding on all other courts and authorities in the country (Article 141).
    • Executive and legislature are under the scrutiny of Courts: There is virtually no area of legislative or executive activity which is beyond the court’s scrutiny.

    Why accountability of higher judiciary is necessary?

    • High courts are not ready to reform themselves: In the Salem Advocate Bar Association case, the justices had requested the high courts to implement the detailed blueprint on case management most of them have not.
    • Limitations of supreme court to govern the High courts: Supreme court could not direct the high courts to do so because under our constitutional scheme the latter are autonomous constitutional bodies not subject to administrative directions of the Supreme Court.
    • Self-accountability in administrations of courts: It is in the high courts that there are now left the largest number of roadblocks and delays; in their administrative functioning the high courts are answerable to no one but themselves. This often enables the Supreme Court to plead helplessness, hardly a good augury for integrated court-management.

    How judiciary can maintain its credibility and accountability?

    • Judiciary need to Preserve the independence: the judiciary as an institution needs to preserve its independence, and to do this it must strive to maintain the confidence of the public in the established courts.
    • Judges should safeguard the judges: The independence of judges is best safeguarded by the judges themselves through institutions and organisations that the law empowers them to set up, to preserve the image of an incorruptible higher judiciary that would command the respect of all right-thinking people.
    • Reform on case management: A bench of three justices of the Supreme Court, in a judgment delivered in August 2005, had drawn up a fine blueprint on case-management, on how to make recent amendments in our procedural laws work on the ground, and how to get more cases moving along: For instance, on three different tracks, fast track, normal track and slow track.
    • Supreme court should directly administer High courts: It is time that the Supreme Court be entrusted with direct responsibility for the functioning of the high courts: Only then can the highest court be an effective apex court, only then can the Supreme Court be made answerable, as it should be, for judicial governance for the entire country.
    • Public disclosure of income by judges: Judges must make annual financial disclosure statements, not privately to their respective chief justices, but publicly. It is done by justices of the Supreme Court.

    How judiciary in USA maintain its credibility and accountability?

    • Judicial council act: In the United States, under the Judicial Councils Act, 1980, task of judicial independence has been gladly undertaken by the judges. But regrettably, so far, there is no law in India to guide our judges only “guidelines”. There is a felt need for a law.
    • Judges investigate the judges: The 1980 US Act confers powers on bodies comprised of judges to take such action against a federal judge “as is appropriate, short of removal.”
    • A case study of America: Under this law, some time ago, a committee of fellow judges had investigated complaints against a federal district judge, John McBryde; the Judicial Council reprimanded him and suspended him from hearing new cases for a year.
    • Corruption Investigation Not violating the judicial independence: McBryde challenged the decision. He argued that the 1980 law violated the judicial independence which the US Constitution had guaranteed to life-tenured federal judges; But a US Court of Appeals rejected all these pleas.
    • Oversight of judges is not interference: It accepted the argument of the US Solicitor-General that judicial independence, protected by Article III of the US Constitution, was meant to insulate judges from interference from other branches of government and not from oversight by other judges.

    Conclusion

    • In India, in the past and in recent times, some things have gone wrong. And citizens need the reassurance of a system of judicial accountability a remedial mechanism which will protect the higher judiciary from some of its own members who have gone astray. Such reassurance can only be provided by enacting a law on the lines of the American model.

    Mains Question

    Q. What are the reasons for very less accountability in higher judiciary in India? How corruption in higher judiciary is addressed in USA?

    Click and Get your FREE copy of Current Affairs Micro notes

  • Right to Privacy in an era of social media

    Right to Privacy

    Context

    • The recent outrage over the unauthorized video of cricketing superstar Virat Kohli’s hotel room in Perth including glimpses of his private spaces and objects is best viewed through an understanding of the changed landscape of the “private” and the “public” in our times. It is a topography shaped through our engagements with social media of different kinds.

    What does the Constitution say?

    • Fundamental right under Article.21: Article 21 is also known as the heart of the constitution; this right is granted to citizens of India as well as the non-citizens. This fundamental right not only talks about life and liberty but it also covers wide variety of rights.
    • Interpretation of Maneka Gandhi v. Union of India and Anr (1978): The interpretation of the term Personal Liberty has been discussed in many cases and finally had a wider interpretation in the case of Maneka Gandhi v. Union of India and Anr (1978) here the Delhi Regional officer ordered the petitioner Maneka Gandhi to surrender her passport within 7 days without giving her proper reason for the same.
    • Supreme court on Personal liberty: The Supreme Court held that ‘Personal Liberty’ covered variety of rights and that such right could only be taken away according to the procedure established by law which had to be just, fair and reasonable and not arbitrary in nature. Personal liberty means various rights that provide for personal liberty of a person.
    • Right to privacy: In Article 21 the term Right to Life includes right to participate in activities, right to tradition, heritage, culture, livelihood and so on. One of the most important right to live also includes Right to Privacy. Each and every human being would want some privacy in their life. No one would want others to intrude in their private space and disturb the happiness and peace.

    Right to Privacy

    What is the Fight for right to Privacy?

    • Not in the original constitution: This right of privacy was not granted to the citizens for a long time and there had been a lot of debate going on about the same, there is no explicit provision in the constitution which emphasizes about the right to privacy.
    • Data is fundamental to the privacy: Even the data we save in our mobile phones and laptops are also our private data which needs to be protected, if the data is stolen our right to privacy is lost and fundamental right is infringed. Unprotected data causes a disturbance in the right to privacy.

    Some of the Important cases related to right to privacy

    • Kharak Singh V. The State of U.P.(1962): The discussion about the right to privacy first came up in the case of Kharak Singh V. The State of U.P.(1962) Kharak Singh’s house was visited by the police at strange hours, frequently waking him up from his sleep, it was held by the court that this infringed his ‘right to life’ but however court dismissed the petitioner’s allegation that the shadowing of chronic criminals infringed on his right to privacy as at that time the right to privacy was not recognised as the Fundamental Right.
    • Rajagopal v. State of Tamil Nadu (1994): With the case of R. Rajagopal v. State of Tamil Nadu (1994) where this case prepared the way for subsequent decisions on the Right to Privacy, paving the way for it to be included in the Fundamental Rights given under Part III of the Constitution.
    • X v. Hospital Z case (1998): There are reasonable restrictions for this right about which it was held by the Supreme Court in the case of Mr. X v. Hospital Z (1998) here the appellant Mr. X was tested positive for HIV about which the doctors informed someone else without his consent because of which marriage of Mr. X was called off, the appellant approached the court stating that his right to privacy was violated. The court here held that this fact has to been known to the person whom he marries as this fact would affect her life as well as it being a communicable disease and that there is no violation to the ‘Right of Privacy’ of Mr. X.

    Right to Privacy

    The landmark case of K.S. Puttaswamy v/s Union Of India 2017.

    • Right to privacy is fundamental right: In the landmark case K.S. Puttaswamy V. Union of India which was passed in the year 2017, Right to Privacy was recognised as Fundamental Right and was then enshrined in Article 21 as a Right to life and personal liberty.
    • Social media endangered the privacy: Judges held that because there is enormous technical advancement both state and non-state factors may be at risk of loss of privacy, also it was held that an Individual is very concerned with his / her personal Data, they control their data and what to be posted on social media what to be displayed to the public and what to hide from outsiders, so unauthorized use of such information by anyone else except to whom that information belongs to may lead to violation of individuals privacy.
    • Privacy is integral to fundamental rights: On 24th August 2017 the nine-judge bench of India passed a unanimous historic Judgement with concurring opinions. Part III of the Indian constitution lays down different articles for the protection of one’s Fundamental Rights. The judgement stated privacy to be an integral component of Part III.
    • Overturning the previous judgements: The bench recognized that the right to privacy should also be a key element of Fundamental Rights and should be included in Article 21 of right to life and personal liberty. In this judgement the decisions given in the case of Kharak Singh V. The State of U.P. (1962) and MP Sharma V. Satish Chandra (1954) were overruled.

    Right to Privacy

    Conclusion

    • The great deal of hand wringing over the invasion of Virat Kohli’s privacy has been accompanied by seemingly endless circulation of the video clip. The line between outrage and enjoyment is as unclear as that between the alternating desire for publicity that ethereal frisson of celebrity-ness and revulsion over too much of it.

    Mains Question

    Q. How right to privacy is integral part of right to life? How social media affected the privacy of individual and enlist the solutions associated with it.

    Click and Get your FREE copy of Current Affairs Micro notes

  • Critical Analysis of EWS Reservation

    EWS

    Context

    • Shortly after the Supreme Court on Monday, 7 November, upheld the validity of the 103rd Constitutional Amendment Act, which introduced 10 percent reservations for Economically Weaker Sections (EWS) in government jobs and educational institutions, Tamil Nadu’s DMK termed the split verdict a ‘setback’ to a century-old fight for social justice.

    What is the idea of reservation?

    • Based on historical injustice: Reservation is intrinsically linked to the historical injustice meted out to Shudras and Dalits.
    • Reservation for egalitarian society: It was during the anti-caste movement that the idea of reservation came up as a way for an egalitarian social order, to ensure fair representation in the socio-political order, and to mitigate and compensate for the inhuman exclusion of humans based on ascriptive status.
    • Equal participation in nation building: Reservation is implemented in politics, education and public employment so that all those in the hierarchy can participate in nation-building on equal terms.
    • Reservation is not a poverty alleviation: R. Ambedkar and E.V. Ramasamy ‘Periyar’ spoke about reservation as a means of providing representation; not as a poverty alleviation programme.

    Reasoning behind granting reservation based on social status

    • Historical benefits to upper caste: Merit is often the mantra used against the idea and implementation of reservation. Historically, Brahmins had the monopoly in offering sacrifice, receiving gifts, becoming priests, spiritual mentorship, and teaching.
    • Monopoly over resources: Vaishyas had the monopoly in wealth-generating professions. These monopolies were rooted in, and buttressed by, the authority of scriptures like the Manusmriti and treatises like the Arthasashtra.
    • Monopoly over the education: The top three Varnas had access to learning. In the colonial era, under the progressive pressures of modernization and democratization, the traditional monopolies based on caste order were diffused into the secular domains of bureaucracy, legal practice, professorship, etc.
    • Upper caste reservation in certain professions: Leaders professing equality, such as Jyotirao Phule, Periyar and Ambedkar, wanted to annihilate the arbitrary reservation for certain professions, being implemented based on fanciful mythical stories.
    • Democratization of employment and education: Essentially, the mission was to ‘de-reserve’ education and employment opportunities from a handful of castes to make them available to the remaining castes which were aspiring to be a part of the newly independent nation.
    • Idea of Merit to oppose the reservation: The merit mantra was very effective at stopping, or at least stalling, the ‘de-reservation’ process. But when the bill for EWS reservation was passed hastily in Parliament in 2019, there was no concern for merit.

    EWS

    How categorization of poor under EWS is unfair?

    • The bar of 8 Lakh is absurd: Individuals from upper caste communities who earn up to â‚č8 lakh a year and may own a 1,000-square feet home are being called economically weak.
    • Poverty estimation: In India, more than 30 crore citizens have been classified as being below the poverty line (spending less than â‚č32 a day in urban areas and under â‚č27 a day in rural areas).
    • Lower caste forms the majority of Poor: Data from India (overall) as well as individual States show that Scheduled Castes (SCs) and Other Backward Classes (OBCs) have a higher share of poor people than upper castes in both urban and rural India.
    • Different income criteria for different community: We now live in a country where a household earning more than â‚č75 per day is considered above the poverty line, while an upper caste household earning â‚č2,222 a day is considered economically weak. According to the Department of Revenue data, households earning more than â‚č10 lakh constitute less than 1% of India’s population.

    EWS

    Credibility of Data for EWS reservation was never questioned

    • Mandal commission data was critically analyzed: In the 1990s, renowned scholars from privileged communities viciously attacked the Mandal Commission claiming that it lacked credible data. In fact, the Mandal Commission report was based on official data curated from the Censuses of 1891 and 1931.
    • No credible data for EWS reservation: Further, B.P. Mandal formulated his concept of ‘backwardness’ by factoring in the social, educational and economic dimensions of different caste communities. But now, neither justification nor credible data has been presented while arguing that 10% reservation must be provided for the upper caste poor.
    • EWS reservation is equating the unequal’s: The Mandal Commission report said, “To equate unequal’s is to perpetuate inequality”. By giving the go-ahead for the EWS quota, Supreme Court has equated unequal’s in the category of affirmative action.
    • More privilege to already privileged community: The EWS quota is unfair because it twists the idea of social justice by bequeathing further privilege to communities who are historically situated to benefit from the oppressive caste system.

    Other criticism of EWS reservation?

    • SC/ST and OBC are outside the EWS reservation: A Dalit or an OBC who does not get a job within this quota still belongs to the EWS, but he is excluded. That is the Constitutional issue, which you have to answer. How have you excluded them, how have you excluded the poor, how have you excluded those who earn only 20,000 a month who do not get jobs amongst the Dalits?
    • Disturbing the basic structure: The government of tinkering with the “basic structure” of the Constitution.
    • Ultimate goal is removal of reservation: Government basically testing the waters and this will pave the way for the removal of caste-based reservation.
    • Opening the lid for further reservation: There is demand that government should raise the existing reservation cap for SC, OBC and minorities in line with their proportion in the population now since a decision has been taken to break the 50 per cent ceiling set by the top court.

    Conclusion

    • It is true that historically reservation is based social inequalities. Despite having the good credentials and marks upper caste or open categories were denied jobs. Justice to upper castes is not the injustice to lower castes. This is against the principal of natural justice. However exclusion of SC/ST and OBC from EWS category is certainly a matter of debate.

    Mains Question

    Q. What is the Ambedkar’s idea of reservation? Critically analyze the EWS reservation upheld by supreme court.

    Click and Get your FREE copy of Current Affairs Micro notes

  • Hate speech

    Former Supreme Court Judge Rohinton Fali Nariman has said civil suits against hate speech leading to the award of punitive damages should be taken up by courts.

    What did the ex-Judge say?

    • He described the Fundamental Duty of fraternity (Article 51A(5)) as the only Constitutional method of assuring the dignity of every citizen and the unity and integrity of the nation.
    • The cardinal principle of fraternity prescribed that every citizen honoured the other citizen in the spirit of brotherhood, transcending religious, sectarian, and other tendencies.
    • He opined that civil suits like defamation being dealt with fines would be more efficient in curbing hate speeches against individuals.

    Article 51A(5): Promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities and to renounce practices derogatory to the dignity of women.

    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.

    How is it treated in Indian law?

    • Provisions in law criminalize speeches, writings, actions, signs and representations that foment violence and spread disharmony between communities and groups and these are understood to refer to ‘hate speech’.
    • Sections 153A and 505 of the Indian Penal Code are generally taken to be the main penal provisions that deal with inflammatory speeches and expressions that seek to punish ‘hate speech’.

    [I] Section 153A:

    • Promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony’, is an offence punishable with three years’ imprisonment.

    [II] Section 505:

    • 505(1): Statements conducing to public mischief– The statement, publication, report or rumour that is penalized under Section 505(1) should be one that promotes mutiny by the armed forces, or causes such fear or alarm that people are induced to commit an offence against the state or public tranquillity. This attracts a jail term of up to three years.
    • 505(2): It is an offence to make statements creating or promoting enmity, hatred or ill-will between classes.
    • 505(3): Same offence will attract up to a five-year jail term if it takes place in a place of worship, or in any assembly engaged in religious worship or religious ceremonies.

    Why curb hate speeches?

    • Creates social divide: Individuals believe in stereotypes that are ingrained in their minds and these stereotypes lead them to believe that a class or group of persons are inferior to them and as such cannot have the same rights as them.
    • Threat to peaceful co-existence: The stubbornness to stick to a particular ideology without caring for the right to co-exist peacefully adds further fuel to the fire of hate speech.

    Issues in regulating hate speech

    • Powers to State: Almost every regulation of speech, no matter how well-intentioned, increases the power of the state.
    • Hate speeches are Political: The issue is fundamentally political and we should not pretend that fine legal distinctions will solve the issue.
    • Legal complications: An over-reliance on legal instruments to solve fundamental social and political problems often backfires.

    Way forward

    • Subjects like hate speeches become a complex issue to deal with, in a country like India which is very diverse, as it was very difficult to differentiate between free and hate speech.
    • There are many factors that should be considered while restraining speeches like strong opinions, offensive comments towards certain communities, the effect on values like dignity, liberty and equality.
    • We all have to work together and communicate efficiently for our country to be a healthy place to live in.

     

    Click and get your FREE Copy of CURRENT AFFAIRS Micro Notes

  • Jharkhand wants new quota Bill placed in Ninth Schedule

    The Jharkhand assembly on Friday cleared two bills, one fixing land records of 1932 as the basis for a domicile in the state and another to increase reservation in state government jobs across categories to 77%

    What is the news?

    • Though both these bills were cleared unanimously, they would come into effect only after the Centre includes them in the Ninth Schedule of the Constitution.
    • A law in the Ninth Schedule is shielded from judicial review.

    Why the need to include in Ninth Schedule?

    • The 77 per cent reservation breaches the 50 per cent ceiling set by the Supreme Court in the landmark 1992 Indra Sawhney v Union of India verdict.
    • However, placing legislation in the Ninth Schedule shields it from judicial scrutiny.

    What is the Ninth Schedule?

    • The Ninth Schedule contains a list of central and state laws which cannot be challenged in courts.
    • Most of the laws protected under the Schedule concern agriculture/land issues.
    • The Schedule became a part of the Constitution in 1951, when the document was amended for the first time.
    • It was created by the new Article 31B, which along with 31A was brought in by the government to protect laws related to agrarian reform and for abolishing the Zamindari system.
    • While A. 31A extends protection to ‘classes’ of laws, A. 31B shields specific laws or enactments.

    How many laws are there in ninth schedule?

    • Currently, 284 such laws are shielded from judicial review.
    • The First Amendment added 13 laws to the Schedule. Subsequent amendments in 1955, 1964, 1971, 1974, 1975, 1976, 1984, 1990, 1994, and 1999 have taken the number of protected laws to 284.

    Previous instances — Tamil Nadu’s case

    • A Tamil Nadu Law of 1993, reserves 69 per cent of the seats in colleges and jobs in the state government.
    • When it ran into legal obstacles in the 1990s after the SC verdict, the then CM led a delegation to New Delhi to meet the then PM PV Narasimha Rao.
    • The reservation provision was then included in the Ninth Schedule.

    Nature of exemption from Judicial Review

    • While the Ninth Schedule provides the law with a “safe harbour” from judicial review, the protection is not blanket.
    • The Tamil Nadu law was challenged in 2007 in the I R Coelho v State of Tamil Nadu
    • The Supreme Court ruled in a unanimous nine-judge verdict that while laws placed under Ninth Schedule cannot be challenged on the grounds of violation of fundamental rights.
    • They can be challenged on the ground of violating the basic structure of the Constitution, said the apex court.

    Verdict of the IR Coelho Case

    • The IR Coelho verdict said, “A law that abrogates or abridges rights guaranteed by Part III of the Constitution may violate the basic structure doctrine or it may not.
    • If former is the consequence of law, whether by amendment of any Article of Part III or by an insertion in the Ninth Schedule, such law will have to be invalidated in exercise of judicial review power of the Court.”

     

    What is the 1973 deadline about?

    • The court clarified that the laws cannot escape the “basic structure” test if inserted into the Ninth Schedule after 1973.
    • As it was in 1973 that the basic structure test was evolved in the Kesavananda Bharati case as the ultimate test to examine the constitutional validity of laws.

     

    (Click) FREE1-to-1 on-call Mentorship by IAS-IPS officers | Discuss doubts, strategy, sources, and more