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Subject: Polity

  • Kerala Governor says he can sack errant Ministers

    Kerala Governor has opened the next battlefront against the State government by threatening to remove Ministers from their posts if they continued to lower the dignity of his office.

    Why in news?

    • This is for the very first time that any Governor has expressed his displeasure.
    • There has been no occasion so far of a Governor unilaterally removing a minister from the government.

    Governor in the parliamentary system

    • The position, role, powers, and conditions of office of the Governor are described in Articles 153-161 of the Constitution.
    • The position of Governor is similar to that of the President at the Union.
    • He is at the head of the state’s executive power, and barring some matters, acts on the advice of the council of ministers, which is responsible, in accordance with the parliamentary system, to the state legislature.

    Apolitical nature of his appointment

    • The Governor is appointed by the President (on the advice of the central government) and, therefore, acts as the vital link between the Union and the state governments.
    • The post was envisaged as being apolitical; however, the role of Governors has been a contentious issue in Centre-state relations for decades.
    • The Governor enjoys certain powers such as giving or withholding assent to a Bill passed by the state legislature or determining the time needed for a party to prove its majority.
    • The party must be called first to do so, generally after in a hung Assembly — which have been weaponized by successive central governments against the political opposition.

    Is the Governor capable to remove a Minister?

    • Article 164(1) says state “Ministers shall hold office during the pleasure of the Governor”.
    • This is the provision that the Kerala Governor was seemingly alluding to.
    • Article 164(1) deals with the appointment of the Chief Minister and other ministers.
    • While the Governor does not have to seek anyone’s advice while appointing the Chief Minister, he can appoint a minister only on the recommendation of the Chief Minister.
    • The Governor has no power to pick anyone he chooses to make a minister. He can appoint a minister only on the advice of the CM.

    Major judicial observation in this regard

    Ans.  Shamsher Singh & Anr vs State Of Punjab (1974)

    • The Supreme Court ruled that- the President and Governor exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well known exceptional situations.

    What were the exception situations referred to?

    • These situations could arise if:
    1. The PM or CM cease to command majority in the House
    2. The government loses majority but refuses to quit office
    3. For the dissolution of the House where an appeal to the country is necessitous.
    • But even in the third scenario, the President or Governor should avoid getting involved in politics and must be advised by his PM/CM who will eventually take the responsibility for the step the court ruled.

    What did the founding fathers of the constitution believe?

    • B R Ambedkar said- The Governor under the Constitution has no function which he can discharge by himself; no functions at all.

    So what does the “pleasure” of the Governor mean?

    • The Governor can have his pleasure as long as the government enjoys majority in the House.
    • The Governor can withdraw his pleasure only when the government loses majority but refuses to quit.
    • Then he withdraws the pleasure and dismisses it.
    • Without the advice of the Chief Minister, a Governor can neither appoint nor dismiss a minister.
    • That’s the constitutional position.

    What maximum can a Governor do?

    • If a minister lowers the dignity of the Governor or his office, as Kerala Governor has alleged, Raj Bhavan can ask the Chief Minister to inquire.
    • If it is found that the minister has defamed or disrespected the Governor, he/ she can ask the Chief Minister to drop the minister.
    • This does not mean the Governor has the right to dismiss the Chief Minister or ministers at will.

    Attempts to moralize such situations

    (1) National Commission to Review the Working of the Constitution

    • The NCRWC appointed by the Atal Bihari Vajpayee government in 2000 recommended significant changes in the selection of Governors.
    • The Commission suggested that the Governor should be appointed after consultation with the CM of that State.
    • Normally the five year term should be adhered to and removal or transfer of the Governor should be by following a similar procedure as for appointment.

    (2) Sarkaria Commission

    • The Sarkaria Commission was set up in 1983 to look into Centre-state relations.
    • It proposed that the Vice President of India and the Speaker of Lok Sabha should be consulted by the Prime Minister in the selection of Governors. (without any logic behind explaining!)

    (3) Punchhi Committee

    • The Justice Madan Mohan Punchhi Committee was constituted in 2007 on Centre-state relations.
    • It proposed in its report submitted in March 2010 that a committee comprising the PM, Home Minister, Vice President, Speaker, and the concerned Chief Minister should choose the Governor.
    • The Punchhi Committee recommended deleting the “Doctrine of Pleasure” from the Constitution.
    • However, it backed the right of the Governor to sanction the prosecution of ministers against the advice of the state government.
    • It also argued for a provision for the impeachment of the Governor by the state legislature.

     

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  • Will electoral bonds reveal the source of funds, SC asks Centre

    The Supreme Court has asked the government whether the electoral bonds system reveals the source of money pumped in to fund political parties even as the Centre maintained that the scheme is “absolutely transparent”.

    What are Electoral Bonds?

    • Electoral bonds are banking instruments that can be purchased by any citizen or company to make donations to political parties, without the donor’s identity being disclosed.
    • It is like a promissory note that can be bought by any Indian citizen or company incorporated in India from select branches of State Bank of India.
    • The citizen or corporate can then donate the same to any eligible political party of his/her choice.
    • An individual or party will be allowed to purchase these bonds digitally or through cheque.

    About the scheme

    • A citizen of India or a body incorporated in India will be eligible to purchase the bond
    • Such bonds can be purchased for any value in multiples of â‚č1,000, â‚č10,000, â‚č10 lakh, and â‚č1 crore from any of the specified branches of the State Bank of India
    • The purchaser will be allowed to buy electoral bonds only on due fulfillment of all the extant KYC norms and by making payment from a bank account
    • The bonds will have a life of 15 days (15 days time has been prescribed for the bonds to ensure that they do not become a parallel currency).
    • Donors who contribute less than â‚č20,000 to political parties through purchase of electoral bonds need not provide their identity details, such as Permanent Account Number (PAN).

    Objective of the scheme

    • Transparency in political funding: To ensure that the funds being collected by the political parties is accounted money or clean money.

    Who can redeem such bonds?

    • The Electoral Bonds shall be encashed by an eligible Political Party only through a Bank account with the Authorized Bank.
    • Only the Political Parties registered under Section 29A of the Representation of the People Act, 1951 (43 of 1951) and which secured not less than one per cent of the votes polled in the last General Election to the Lok Sabha or the State Legislative Assembly, shall be eligible to receive the Electoral Bonds.

    Restrictions that are done away

    • Earlier, no foreign company could donate to any political party under the Companies Act
    • A firm could donate a maximum of 7.5 per cent of its average three year net profit as political donations according to Section 182 of the Companies Act.
    • As per the same section of the Act, companies had to disclose details of their political donations in their annual statement of accounts.
    • The government moved an amendment in the Finance Bill to ensure that this proviso would not be applicable to companies in case of electoral bonds.
    • Thus, Indian, foreign and even shell companies can now donate to political parties without having to inform anyone of the contribution.

    Issues with the Scheme

    • Opaque funding: While the identity of the donor is captured, it is not revealed to the party or public. So transparency is not enhanced for the voter.
    • No IT break: Also income tax breaks may not be available for donations through electoral bonds. This pushes the donor to choose between remaining anonymous and saving on taxes.
    • No anonymity for donors: The privacy of the donor is compromised as the bank will know their identity.
    • Differential benefits: These bonds will help any party that is in power because the government can know who donated what money and to whom.
    • Unlimited donations: The electoral bonds scheme and amendments in the Finance Act of 2017 allows for “unlimited donations from individuals and foreign companies to political parties without any record of the sources of funding”.

    Way ahead

    • The worries over the electoral bond scheme, however, go beyond its patent unconstitutionality.
    • The concern about the possibility of misuse of funds is very pertinent.
    • The EC has been demanding that a law be passed to make political parties liable to get their accounts audited by an auditor from a panel suggested by the CAG or EC. This should get prominence.
    • Another feasible option is to establish a National Election Fund to which all donations could be directed.
    • This would take care of the imaginary fear of political reprisal of the donors.

     

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  • Ensuring Internal Security by Securing Communication Networks

    Communication

    Context

    • In a bid to upgrade the Indian Telegraph Act 1885, a law that is more than a century old, the Department of Telecommunications, or DoT, issued the Draft Indian Telecommunications Bill 2022 on 21 September. Among other things, the proposed legislation brings digital communications applications like Signal and Telegram under telecommunications law and regulation and treats them like internet and telecom service providers and broadcasters.

    What are the Current regulations of communication networks?

    • Information Technology Act 2000: Digital communication applications are currently governed by the Ministry of Electronics and Information Technology (MeitY) and the Information Technology Act 2000 where there is no licensing requirement.
    • Telecom Regulatory Authority of India (TRAI): The move has been debated for some years now, with the Telecom Regulatory Authority of India (TRAI) issuing multiple consultations on the matter, most recently in 2018.
    • National Digital Communications Policy in 2018: DoT may have legitimate grounds for extending its jurisdiction over digital communications applications, including a policy mandate established by the National Digital Communications Policy in 2018. However, there is a conflict that must be resolved, namely the jurisdictional overlap between the prospective law and the existing information technology framework.

    Communication

    Why is security of communication networks important?

    • National security: Communication networks are a part of our critical information infrastructure which was defined in the IT Act, 2000 as “the computer resource, the incapacitation or destruction of which, shall have debilitating impact on national security, economy, public health or safety.”
    • Protecting critical Infrastructure: Communications networks are crucial to the connectivity of other critical infrastructure, viz. civil aviation, shipping, railways, power, nuclear, oil and gas, finance, banking, communication, information technology, law enforcement, intelligence agencies, space, defence, and government networks. Therefore, threats can be both through the networks as well as to the networks.
    • Ready to Information Warfare (IW): Because of the increasing relevance of information technology (IT) to people’s lives, individuals who take part in IW are not all soldiers and that anybody who understands computers may become a fighter.
    • To stop the adverse impact on information system: IW is inexpensive as the targeted party can be delivered a paralysing blow through the net and it may be difficult for the latter to discern where the attack originated. Large amount of useless information can be created to block or stop the functioning of an adversary’s information system.
    • For Possible mass mobilisation: Thus, a People’s War in context of IW can be carried out by hundreds of millions of people, using open-type modern information systems. Even political mobilisation for war can be achieved via the internet, by sending patriotic e-mail messages and by setting up databases for education.

    Communication

    Why new law is necessary?

    • No obligation on communication applications: A key reason for the DoT to bring such applications under telecommunications law is national security. Licensed telecom service providers must provide law enforcement authorities access to their networks and intercept messages in the course of investigations.Conversely, there is a contention that there is no corresponding obligation on digital communications applications, potentially leaving a gap in safeguarding national security interests.
    • For increased Encryption and secrecy: A further assertion is that the encryption used by most digital communications apps hampers investigative efforts as it becomes difficult to ascertain user identity on these platforms and stop malfeasance.
    • Necessary to Ensure security: The draft telecom bill attempts to address this gap by including a provision which enables the government to undertake measures in the name of national security, including issuing directions regarding the use of any telecommunication service.
    • Licensing for more transparency: Presumably, licences issued for digital communications applications under the proposed legislation will prescribe conditions that would require these apps to give law enforcement authorities access to their systems for monitoring and intercepting communications.

    Communication

    What is the criticism over the new bill?

    • Existing law is sufficient: the IT Act already has provisions to enable lawful interception and monitoring of messages sent through digital communications applications. Under Section 69 of the IT Act, the central or state government may issue directions to do so in the interest of preserving, among other things, national security and public order. Moreover, rule 4 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) 2021 requires digital communications applications with 50 lakh users or more to enable identification of those sending messages on their platforms.
    • Possible mass surveillance by Government: The implication here is that digital communications apps would have to break encryption and create meaningful pathways for the surveillance of their services. Importantly, while rule 4 has been challenged, it has not been stayed by any court, meaning digital communications apps must comply with it.
    • New laws will overlap with IT Act: It would appear, then, that the provisions regarding national security in the draft telecom bill and the IT Act overlap. So how would the situation be resolved, as both have clauses that give them the ability to override provisions in other laws? Specifically, both the Draft Telecom Bill, 2022 and the IT Act have a non-obstante clause, a provision that enables a statute to uphold the enforceability of its provisions over others that contradict it. Thus, in case of a contradiction between these two laws, which would prevail?
    • Introducing Digital India Act will likely to override other laws: Reports indicate that MeitY aims to introduce a newer version of the IT Act, namely the ‘Digital India Act’. This law will likely deal with matters related to lawful interception and other matters related to the governance of digital communications applications. If such a law is passed, the ‘Digital India Act’ would override the enacted version of the telecom bill.
    • Judicial challenge of acknowledgment: A situation emerges where the telecom bill, if enacted, may face a judicial challenge. Based on the analysis of the court’s treatment of special laws, this proposed legislation is unlikely to prevail as the ‘Digital India Act’ will emerge after it

    Conclusion

    • National security and privacy of citizens an equally important. One cannot be traded for other. Arbitrary power of surveillance must be regulated by independent body under the parliament which will seek the transparency and accountability from law enforcement authorities.

    Mains Question

    Q.Unchecked communication networks are grave internal security threat. Comment why new law is necessary for interception and regulation of communication networks in India?

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  • What is Model Code of Conduct?

    The Election Commission of India announced the date for Himachal Pradesh Assembly elections 2022.  Hence the model code of conduct comes into picture.

    Model Code of Conduct

    • It is a set of guidelines issued by ECI to regulate political parties and candidates prior to elections.
    • The rules range from issues related to speeches, polling day, polling booths, portfolios, content of election manifestos, processions and general conduct, so that free and fair elections are conducted.

    When does it come into effect?

    • According to the PIB, a version of the MCC was first introduced in the state assembly elections in Kerala in 1960.
    • It was largely followed by all parties in the 1962 elections and continued to be followed in subsequent general elections.
    • In October 1979, the EC added a section to regulate the ‘party in power’ and prevent it from gaining an unfair advantage at the time of elections.
    • The MCC comes into force from the date the election schedule is announced until the date that results are out.

    Restrictions imposed under MCC

    The MCC contains eight provisions dealing with general conduct, meetings, processions, polling day, polling booths, observers, the party in power, and election manifestos.

    For Governments

    • As soon as the code kicks in, the party in power whether at the Centre or in the States should ensure that it does not use its official position for campaigning.
    • Hence, no policy, project or scheme can be announced that can influence the voting behaviour.
    • The code also states that the ministers must not combine official visits with election work or use official machinery for the same.
    • The ruling government cannot make any ad-hoc appointments in Government, Public Undertakings etc. which may influence the voters.
    • Political parties or candidates can be criticised based only on their work record and no caste and communal sentiments can be used to lure voters.

    For Political Parties

    • The party must also avoid advertising at the cost of the public exchequer or using official mass media for publicity on achievements to improve chances of victory in the elections.
    • The ruling party also cannot use government transport or machinery for campaigning.
    • It should also ensure that public places such as maidans etc., for holding election meetings, and facilities like the use of helipads are provided to the opposition parties on the same terms and conditions on which they are used by the party in power.

    Campaigning

    • Holding public meetings during the 48-hour period before the hour fixed for the closing of the poll is also prohibited.
    • The 48-hour period is known as “election silence”.
    • The idea is to allow a voter a campaign-free environment to reflect on events before casting her vote
    • The issue of advertisement at the cost of public exchequer in the newspapers and other media is also considered an offence.
    • Mosques, Churches, Temples or any other places of worship should not be used for election propaganda. Bribing, intimidating or impersonation of voters is also barred.

    Is it legally binding?

    • The fact is the MCC evolved as part of the ECI’s drive to ensure free and fair elections and was the result of a consensus among major political parties.
    • It has no statutory backing. Simply put, this means anybody breaching the MCC can’t be proceeded against under any clause of the Code..
    • The EC uses moral sanction or censure for its enforcement.

    What if violated?

    • The ECI can issue a notice to a politician or a party for alleged breach of the MCC either on its own or on the basis of a complaint by another party or individual.
    • Once a notice is issued, the person or party must reply in writing either accepting fault and tendering an unconditional apology or rebutting the allegation.
    • In the latter case, if the person or party is found guilty subsequently, he/it can attract a written censure from the ECI — something that many see as a mere slap on the wrist.
    • However, in extreme cases, like a candidate using money/liquor to influence votes or trying to divide voters in the name of religion or caste, the ECI can also order registration of a criminal case under IPC or IT Act.
    • In case of a hate speech, a complaint can be filed under the IPC and CrPC; there are laws against the misuse of a religious place for seeking votes, etc.

    Using powers under Art. 324

    • The Commission rarely resorts to punitive action to enforce MCC, there is one recent example when unabated violations forced EC’s hand.
    • During the 2014 Lok Sabha polls, the EC had banned a leader and now party president from campaigning in order to prevent them from further vitiating the poll atmosphere with their speeches.
    • The Commission resorted to its extraordinary powers under Article 324 of the Constitution to impose the ban.
    • It was only lifted once the leaders apologised and promised to operate within the Code.

    What if given Statutory Backing?

    • Both the ECI and several independent experts, believe that giving statutory backing to the MCC would only make the job of the Commission more difficult.
    • This is because every alleged offence will then have to go to an appropriate court, and right up to the Supreme Court.
    • Given the flaws of our legal system, election petitions filed decades ago are still pending before many High Courts — it is anybody’s guess what that situation might lead to.

     

     

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  • Social Empowerment, The Mandal Way

    mandal

    Context

    • The social justice discourse in modern India can be traced to the initiatives of social revolutionaries such as Jyotiba Phule, Savitribai Phule, Shahu Maharaj and Periyar, B.R. Ambedkar during colonial rule. But the Mandal politics completely changed the social empowerment of depressed classes.

    What is the Mandal way?

    • The Mandal Commission: The Socially and Educationally Backward Classes Commission (SEBC), was established in India in 1979 by the Janata Party government under Prime Minister Morarji Desai with a mandate to “identify the socially or educationally backward classes” of India.
    • To address Caste based discrimination: It was headed by B.P. Mandal, an Indian parliamentarian, to consider the question of reservations for people to redress caste discrimination, and used eleven social, economic, and educational indicators to determine backwardness.
    • Recommendation of Other backward classes: In 1980, based on its rationale that OBCs (“Other backward classes”) identified on the basis of caste, social, economic indicators made up 52% of India’s population, the commission’s report recommended that members of Other Backward Classes (OBC) be granted reservations to 27% of jobs under the Central government and public sector undertakings, thus making the total number of reservations for SC, ST and OBC to 49%.
    • What Constitution of India says: As per the Constitution of India, Article 15 (4) states, “Nothing in this Article or in clause (2) of Article 29 shall prevent the State from making any provision for the advancement of any socially or educationally backward classes of citizens or for Scheduled Castes and Scheduled tribes”. Hence the Mandal Commission created a report using the data of 1931 census which was last caste wise census and extrapolating same with some sample studies.
    • Affirmative action taken: VP Singh was accused of using the Mandal Report which was ignored by the Janta government. It was a social revolution and affirmative action. Earlier 25% population of India which is SC ST was covered and now more than 50% of Other Backward Class came under reservation.
    • Witnessed violent protest: The youth went for massive protest in large numbers in the nation’s campuses, resulting in many self-immolations by students.
    • What is Mandal 2.0: In 2006, reservations were extended to OBC candidates in institutionsof higher learning popularly known as MandalII.

    mandal

    How mandal politics empowering the social groups?

    • Helped to ensure the brotherhood: “Fraternity” as enshrined in the ‘Preamble’ of the Constitution, entails instilling confidence and camaraderie in the all communities. Reservations raised the hope of OBC communities to actively become the part of Government functionaries.
    • Increased spending on socially backward group: Public spending is considered a reliable way to measure development. Governments can choose to distribute their limited resources in either economic or social sectors. Economic sectors, like industry, ports, highways, etc., generally support economic growth by attracting private investment. Social sectors like education, healthcare, and social security promote the welfare of the masses. Influential theories in social science argue that working-class coalitions support social welfare (Acemoglu and Robinson 2006, Rueschemeyer et al. 1992). In the Indian context, OBC and SC politicians should be expected to support social spending.
    • Increased sensitivity towards backward classes: It is found that places with higher OBC political representation in combination with higher OBC reservation in the bureaucracy are more likely to spend more in social sectors.
    • Removing the elite culture: Appointment of lower caste officials at the local level can help in breaking down long-established upper-caste patronage networks and hence potentially reduce ‘elite capture’ of government programmes.
    • Built confidence and empowerment: According to IAS officer from Bihar cadre Lower castes would not have dared to enter the office of the DM (district magistrate) or BDO (block development officer). They thought that if they said something, they would be punished. That changed. Now they have the confidence to raise their voice against the DM. They don’t know if their job will get done, but they can enter his office without fear.”

    mandal

    What are the issues with reservation?

    • Statistics: The central list of OBC has 2,633 entries. According to the commission, many of the 2,633 entries comprise several classes, communities and sub-communities, etc, which means the total number of individually named classes/castes in the central list is between 5,000 and 6,000.
    • Skewed benefits: 25 per cent of the reservation benefits were availed of by communities listed in 10 entries of the central list. Another 25 per cent were availed of by communities listed in another 38 entries.
    • Few communities never got the benefit: The commission also found that 20 per cent of the communities, listed in 983 entries, could not avail of any benefits. Those in another 994 had a share of just 2.68 per cent.
    • 1% but 50% reservation: Just about 40 of 5,000-6,000 castes/communities among the OBCs (other backward classes) — which constitute less than 1 per cent — have cornered 50 per cent of the reservation benefits in admissions to central educational institutions and recruitment to central services, a panel constituted by the government has found.

    mandal

    Conclusion

    • Reservation is definitely an affirmative action to end the social discrimination. But it cannot continue forever. It’s high time that we should strictly enforce the creamy layer categorisation both in OBC and SC, ST reservations.

    Mains Question

    Q.How reservation helps in social empowerment of backward class? Describe the powers and functions of National Commission for backward class in India.

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  • Split Verdict on Hijab Row

    hijab

    The Supreme Court has delivered a split verdict in the Karnataka hijab ban case with one of the two judges on the Bench upholding the March 15 order of the Karnataka HC validating the government’s ban, and the other set aside the HC ruling.

    What lies next?

    • With the divided bench, the matter has now been directed to be placed before Chief Justice of India (CJI).

    What is a Split Verdict?

    • A split verdict is passed when the Bench cannot decide one way or the other in a case, either by a unanimous decision or by a majority verdict.
    • Split verdicts can only happen when the Bench has an even number of judges.
    • This is why judges usually sit in Benches of odd numbers (three, five, seven, etc.) for important cases, even though two-judge Benches — known as Division Benches — are not uncommon.

    After the verdict

    • In case of a split verdict, the case is heard by a larger Bench.
    • The larger Bench to which a split verdict goes can be a three-judge Bench of the High Court, or an appeal can be preferred before the Supreme Court.
    • In the case of the hijab verdict, the CJI, who is the ‘master of the roster’, will constitute a new, larger Bench to hear the matter.

    Earlier cases with a split verdict

    • In May, a two-judge Bench of the Delhi HC delivered a split verdict in a batch of petitions challenging the exception provided to marital rape in the Indian Penal Code (IPC).
    • Justice Rajiv Shakdher held that the exception under Section 375 (which deals with rape) of the IPC is unconstitutional, while Justice C Hari Shankar held that the provision is valid.

    About the ‘split’ ruling

    • While Justice Hemant Gupta dismissed the appeals challenging the Karnataka High Court order, Justice Sudhanshu Dhulia allowed them.
    • In his judgment, Justice Dhulia referred to the Bijoe Emmanuel case, saying it “squarely covers the issue”.

    What is the Bijoe Emmanuel verdict?

    • The Bijoe Emmanuel case came before up a Bench comprising Justices O. Chinnappa Reddy and M M Dutt in 1986.
    • The court granted protection to three children of the Jehovah’s Witness sect who did not join in singing the national anthem at their school.
    • The court held that forcing the children to sing the national anthem violated their fundamental right to religion.
    • V J Emmanuel, the father of the children pleaded with the court that for the Jehovah’s Witnesses, only Jehovah should be worshipped.
    • Since the anthem is a prayer, the children would stand up in respect when it was playing. However, their faith did not allow them to sing it.
    • The Supreme Court had said that while the Kerala HC had examined whether or not the national anthem contained any word or thought, which could offend anyone’s religious susceptibilities, it had misdirected itself as that was not the question at all.

    Why the hijab case should be heard by a larger Bench?

    First and foremost, the matter should be heard by a larger Bench preferably 5 judges as-

    • It has to be decided whether the right to practice religion can intertwine with the right and autonomy of educational institutions to decide their uniform.
    • While private institutions have the autonomy to decide on the uniform, the court needs to study and decide whether such issues should be looked at in a uniform manner.
    • Considering the complexities of the matter which also involves several issues such as female dignity, freedom of expression, and the school’s right to decide on the uniform.
    • A Constitution Bench would also have the right to re-examine the Emmanuel verdict which was delivered by a two-judge Bench.

     

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  • Official Language Panel and a fresh ‘Hindi Imposition’ Row

    The 11th volume of the Report of the Official Language Committee headed by Home Minister submitted to President has triggered angry reactions from the CMs of Tamil Nadu and Kerala, who have described the Report as an attempt to impose Hindi on non-Hindi-speaking states.

    About the Official Language Panel (for Hindi)

    • The Committee of Parliament on Official Language was set up in 1976 under Section 4 of The Official Languages Act, 1963.
    • Section 4 of the Act says there shall be constituted a Committee on Official language, on a resolution to that effect being moved in either House of Parliament.
    • It should have the previous sanction of the President and passed by both Houses.

    Terms of reference of the committee

    • The Committee is chaired by the Union Home Minister, and has, in accordance with the provisions of the 1963 Act, 30 members — 20 MPs from Lok Sabha and 10 MPs from Rajya Sabha.
    • The job of the Committee is to review the progress made in the use of Hindi for official purposes, and to make recommendations to increase the use of Hindi in official communications.

    History of its establishment

    • With the active promotion of Hindi being mandated by Article 351 of the Constitution, the Official Language Committee was set up to review and promote the use of Hindi in official communications.
    • The first Report of the Committee was submitted in 1987.

    Issues with the committee

    • The name of the Committee is a little misleading.
    • This is because unlike the other Parliamentary panels, the Committee on Official Language is constituted by the Home Ministry.
    • It does not submit its report to Parliament like other Committees of Parliament.
    • The contents of the report submitted are not in the public domain.
    • The panel has the largest representation from the ruling majority party. This has made states more furious.

    What has the Shah panel recommended in its latest (2021) report?

    • Medium of instruction: The panel has made around 100 recommendations, including that Hindi should be the medium of instruction in IITs, IIMs, and central universities in the Hindi-speaking states.
    • Administrative communication: The language used for communication in the administration should be Hindi, and efforts should be made to teach the curriculum in Hindi, but the latter is not mandatory.
    • Hindi translation of HC verdicts: High Courts in other states, where proceedings are recorded in English or a regional language can make available translations in Hindi, because verdicts of High Court of other states are often cited in judgments.
    • Mandate for govt. officials: The panel wants state governments to warn officials that their reluctance to use Hindi would reflect in their Annual Performance Assessment Report (APAR).

    Why are these recommendations under criticism?

    The crux of the recommendations is being ‘perceived’ that-

    • There is a deliberate attempt to reduce the usage of the English language in official communication and to increase the usage of Hindi.
    • Knowledge of Hindi would be compulsory in a number of government jobs.

    Is this the first time that such recommendations have been made?

    • The makers of the Constitution had decided that both Hindi and English should be used as official languages for the first 15 years of the Republic.
    • But in the wake of intense anti-Hindi agitations in the south, the Centre announced that English would continue to be used even after 1965.
    • On January 18, 1968, Parliament passed the Official Language Resolution to build a comprehensive program to increase the use of Hindi for official purposes by the Union of India.

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  • Non-Transparent Collegium, Is there any Alternative?

    Collegium

    Context

    • Once again, the Collegium of the Supreme Court of India is in the news, and once again for the wrong reasons. This time, it is because of the difficulty hat its five judges have in getting together for one meeting. Justice Chandrachud and Justice Nazeer withhold approval.Apparently, they do not object to the names but object to the procedure of circulation.

    What is Collegium system?

    • The Collegium of judges is the Indian Supreme Court’s invention.
    • It does not figure in the Constitution, which says judges of the Supreme Court and High Courts are appointed by the President and speaks of a process of consultation.
    • In effect, it is a system under which judges are appointed by an institution comprising judges.

    • After some judges were superseded in the appointment of the CJI in the 1970s, and attempts made subsequently to affect a mass transfer of High Court judges across the country.

    Collegium

    What was the perception around Independence of judiciary under threat?

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

    What are the problems associated with collegium system?

    • Emphasis on Seniority principle: Collegium system emphasizes excessively on seniority.
    • No discussion on merit and objectivity: However, following the seniority convention offers a semblance of certainty and transparency, even though it takes away from selecting judges on other objective criteria such as merit and competence.
    • Collegium changes its own decision: At times, the sanctity of Collegium’s own decisions no longer stands. Its own previous decision to appoint other persons to the Supreme Court was reversed, without any explanation or justification.
    • Lack of procedure: Besides this, no one knows how judges are selected, and the appointments made reek of biases of self-selection and in-breeding.
    • Widely known Nepotism: Sons and nephews of previous judges or senior lawyers tend to be popular choices for judicial roles.
    • Lack of checks and balances: With its ad hoc informal consultations with other judges, which do not significantly investigate criteria such as work, standing integrity and so on, the Collegium remains outside the sphere of legitimate checks and balances.
    • Opaque system: The lack of a written manual for functioning, the absence of selection criteria, the arbitrary reversal of decisions already taken, the selective publication of records of meetings.

    Collegium

    Collegium system is blessing in disguise

    • Protect independence of judiciary: The framers of the Constitution were alive to the likely erosion of judicial independence.
    • On May 23, 1949, K T Shah stated that the Judiciary, which is the main bulwark of civil liberties, should be completely separate from and independent of the Executive, whether by direct or by indirect influence.
    • NJAC Declared unconstitutional: In 2016, the Supreme Court struck down a constitutional amendment for creating the National Judicial Appointments Commission (NJAC).
    • Distrust on political executive: The SC strongly disapproved of any role for the political executive in the final selection and appointment of judges. The SC said that “reciprocity and feelings of payback to the political executive” would be disastrous to the independence of the judiciary.

    What is National Judicial Appointment Commission (NJAC)?

    • What is NJAC?
    • guarantee the independence of the system from inappropriate politicisation,
    • Strengthen the quality of appointments,
    • Enhances the fairness of the selection process,
    • Promotes diversity in the composition of the judiciary, and
    • Rebuilds public confidence in the system.
    • NJAC was missed opportunity of reforms: The SC in its majority decision declared the NJAC unconstitutional and missed an opportunity to introduce important reformatory changes in the functioning of the judiciary.
    • Judicial majority could have been discussed: According to the experts, the Supreme Court could have read down the law, and reorganised the NJAC to ensure that the judiciary retained majority control in its decisions. However, it did not amend the NJAC Act to have safeguards that would have made it constitutionally valid.
    • No reforms in the collegium system: It also did not reform the Collegium in any way to address the various concerns voiced by one and all, including the Court itself, Instead, to the disappointment of all those who hoped for a strong, independent and transparent judiciary, it reverted to the old Collegium based appointments mechanism.

    Collegium

    Conclusion

    • Appointments to the top court seem to be the preserve of judges from the High Court with a handful of appointments from the Bar. Surely some nodding acknowledgement should be given to a specific provision made by the founding fathers in the Constitution. Judges appointing the judges is not a sustainable practice for future of judiciary.

    Mains Question

    Q.What is NJAC? Why Collegium system is blessings in disguise? Explain the Collegium system of appointments.

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  • Section 66A of IT Act

    66a

    The Supreme Court has ordered States and their police forces to stop prosecuting free speech on social media under Section 66A of the Information Technology Act which was declared unconstitutional by the court in a judgment seven years ago.

    What did Section 66A do?

    • Introduced in 2008, the amendment to the IT Act, 2000, gave the government power to arrest and imprison an individual for allegedly “offensive and menacing” online posts, and was passed without discussion in Parliament.
    • Section 66A empowered police to make arrests over what policemen, in terms of their subjective discretion, could construe as “offensive” or “menacing” or for the purposes of causing annoyance, inconvenience, etc.
    • It prescribed the punishment for sending messages through a computer or any other communication device like a mobile phone or a tablet, and a conviction could fetch a maximum of three years in jail.
    • In 2015, the apex court struck down the law in the landmark case Shreya Singhal v. Union of India, calling it “open-ended and unconstitutionally vague”, and thus expanded the contours of free speech to the Internet.

    Why was the law criticized?

    • The problem was with the vagueness about what is “offensive”.
    • The word having a very wide connotation was open to distinctive, varied interpretations.
    • It was seen as subjective, and what might have been innocuous for one person, could lead to a complaint from someone else and, consequently, an arrest arbitrarily.

    So, how did 66A come under the Supreme Court’s scrutiny?

    • The first petition came up in the court following the arrest of two girls in Maharashtra by Thane Police in November 2012 over a Facebook post.
    • The girls had made comments on the shutdown of Mumbai for the funeral of a political leader.
    • The arrests triggered outrage from all quarters over the manner in which the cyber law was used.
    • The petition was filed by Shreya Singhal, then a 21-year-old law student.

    What were the grounds for the challenge?

    • The objective behind the 2008 amendment was to prevent the misuse of information technology, particularly through social media.
    • The petitioners argued that Section 66A came with extremely wide parameters, which allowed whimsical interpretations by law enforcement agencies.
    • Most of the terms used in the section had not been specifically defined under the Act.
    • The law was a potential tool to gag legitimate free speech online and to curtail freedom of speech and expression guaranteed under the Constitution, going far beyond the ambit of “reasonable restrictions” on that freedom.

    What did the Supreme Court decide?

    • In March 2015, a bench of Justices J. Chelameswar and R.F. Nariman ruled in Shreya Singhal v. Union of India declared Section 66A unconstitutional for “being violative of Article 19(1)(a) and not saved under Article 19(2).”
    • Article 19(1)(a) gives people the right to speech and expression whereas 19(2) accords the state the power to impose “reasonable restrictions” on the exercise of this right.
    • The decision was considered a landmark judicial pushback against state encroachment on the freedom of speech and expression.
    • The bench also read down Section 79– now at the centre of the ongoing “intermediary liability” battle between the Centre and micro-blogging platform Twitter– defining key rules for the relationship between governments and commercial internet platforms.
    • Section 79 says that any intermediary shall not be held legally or otherwise liable for any third party information, data, or communication link made available or hosted on its platform.

     

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  • Justice DY Chandrachud nominated as next CJI

    cji

    Chief Justice of India U.U. Lalit nominated Justice D.Y. Chandrachud as his successor. He will be 50th CJI.

    How is CJI selected?

    • Justice U.U. Lalit is the senior-most judge in the Supreme Court now.
    • The ‘Memorandum of Procedure of Appointment of Supreme Court Judges’ says “appointment to the office of the CJI should be of the seniormost Judge of the SC considered fit to hold the office”.
    • The process begins with the Union Law Minister seeking the recommendation of the outgoing CJI about the next appointment.

    What is the time frame?

    • The Minister has to seek the CJI’s recommendation at the “appropriate time”.
    • The Memorandum does NOT elaborate or specify a timeline.

    Making final appointment

    The Memorandum says:

    1. Receipt of the recommendation of the CJI
    2. The Union Minister of Law, Justice and Company Affairs will put up the recommendation to the PM
    3. PM will advise the President in the matter of appointment
    4. The President of India appoints the CJI

    Chief Justice of India: A brief background

    • The CJI is the chief judge of the Supreme Court of India as well as the highest-ranking officer of the Indian federal judiciary.

    Appointment

    • The Constitution of India grants power to the President to nominate, and with the advice and consent of the Parliament, appoint a chief justice, who serves until they reach the age of 65 or until removed by impeachment.
    • Earlier, it was a convention to appoint seniormost judges.
    • However, this has been broken twice. In 1973, Justice A. N. Ray was appointed superseding 3 senior judges.
    • Also, in 1977 Justice Mirza Hameedullah Beg was appointed as the chief justice superseding Justice Hans Raj Khanna.

    Qualifications

    The Indian Constitution says in Article 124 (3) that in order to be appointed as a judge in the Supreme Court of India, the person has to fit in the following criteria:

    • He/She is a citizen of India and
    • has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or
    • has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or
    • is, in the opinion of the President, a distinguished jurist

    Functions

    • As head of the Supreme Court, the CJI is responsible for the allocation of cases and appointment of constitutional benches which deal with important matters of law.
    • In accordance with Article 145 of the Constitution and the Supreme Court Rules of Procedure of 1966, the chief justice allocates all work to the other judges.

    On the administrative side, the CJI carries out the following functions:

    • maintenance of the roster; appointment of court officials and general and miscellaneous matters relating to the supervision and functioning of the Supreme Court

    Removal

    • Article 124(4) of the Constitution lays down the procedure for removal of a judge of the Supreme Court which is applicable to chief justices as well.
    • Once appointed, the chief justice remains in the office until the age of 65 years. He can be removed only through a process of removal by Parliament as follows:
    • He/She can be removed by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present.
    • The voting has been presented to the President in the same session for such removal on the ground of proven misbehavior or incapacity.

     

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