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Subject: Polity

  • In news: Sutlej-Yamuna Link (SYL) Canal

    The Supreme Court drew an assurance from the State of Punjab that it will meet the Haryana counterpart within this month to discuss the construction of the Sutlej-Yamuna Link (SYL) Canal which has been languishing for two decades.

    Why in news?

    • The observations came after the Centre complained that Punjab had “refrained” from coming to the negotiating table to engage in talks with Haryana over the issue.
    • The construction of Punjab’s portion of the canal had led to militant attacks in the 1980s.
    • The issue had also been a political thorn for successive governments in Punjab, so much so that it led to the State’s unilateral enactment of the controversial Punjab Termination of Water Agreements Act of 2004.
    • This law was, however, struck down by a Constitution Bench in 2016, dashing the hopes of Punjab’s farmers to reclaim lands acquired for the SYL canal project.

    About Sutlej-Yamuna Link (SYL) Canal

    • Satluj Yamuna Link Canal or SYL as it is popularly known, is an under-construction 214-kilometer long canal in India to connect the Sutlej and Yamuna rivers.

    What is the SYL canal issue?

    • At the time of reorganization of Punjab in 1966, the issue of sharing of river waters between both the states emerged.
    • Punjab refused to share waters of Ravi and Beas with Haryana stating it was against the riparian principle.
    • Before the reorganization, in 1955, out of 15.85 MAF of Ravi and Beas, the Centre had allocated 8 MAF to Rajasthan, 7.20 MAF to undivided Punjab, 0.65MAF to Jammu and Kashmir.
    • Out of 7.20 MAF allocated, Punjab did not want to share any water with Haryana.
    • In March 1976, when the Punjab Reorganization Act was implemented, the Centre notified fresh allocations, providing 3.5 MAF To Haryana.

    Inception of the canal project

    • Later, in 1981, the water flowing down Beas and Ravi was revised and pegged at 17.17 MAF, out of which 4.22 MAF was allocated to Punjab, 3.5 MAF to Haryana, and 8.6 MAF to Rajasthan.
    • Finally, to provide this allocated share of water to southern parts of Haryana, a canal linking the Sutlej with the Yamuna, cutting across the state, was planned.
    • Finally, the construction of 214-km SYL was started in April 1982, 122 km of which was to run through Punjab and the rest through Haryana.
    • Haryana has completed its side of the canal, but work in Punjab has been hanging fire for over three decades.

    Why has the SYL canal come up again now?

    • The issue is back on centre stage after the Supreme Court directed the CMs of Punjab and Haryana to negotiate and settle the SYL canal issue.
    • The apex court asked for a meeting at the highest political level to be mediated by the Centre so that the states reach a consensus over the completion of the SYL canal.
    • The meeting remained inconclusive with the Centre expressing the view that the construction of the SYL canal should be completed. But Punjab CM refused categorically.

    Punjab’s resentment with the project

    • The dispute is based on the bloody history around the SYL canal. The trouble-torn days of terrorism in Punjab started in the early 1980s when work on the SYL started.
    • Punjab feels it utilized its precious groundwater resources to grow the crop for the entire country and should not be forced to share its waters as it faces desertification.
    • It is feared that once the construction of the canal restarts, the youth may start feeling that the state has been discriminated against.
    • The Punjab CM fears Pakistan and secessionist organisations could exploit this and foment trouble in the state.

    Water crisis in Punjab

    • Punjab is facing severe water crisis due to over-exploitation of its underground aquifers for the wheat/paddy monocycle.
    • According to the Central Underground Water Authority’s report, its underground water is over-exploited to meet the agriculture requirements in about 79 per cent area of the state.
    • Out of 138 blocks, 109 are “over-exploited”, two are “critical” five are “semi-critical” and only 22 blocks are in “safe” category.

    Punjab expects a new tribunal

    • The state wants a tribunal seeking a fresh time-bound assessment of the water availability.
    • The state has been saying that till date there has been no adjudication or scientific assessment of Punjab river waters.

    Try this PYQ:

     

    Which one of the following pairs is not correctly matched? (CSP 2017)

    Dam/Lake River

    (a) Govind Sagar: Satluj

    (b) Kolleru Lake: Krishna

    (c) Ukai Reservoir: Tapi

    (d) Wular Lake: Jhelum

     

    [wpdiscuz-feedback id=”pi9dnq0vcr” question=”Please leave a feedback on this” opened=”1″]Post your answers here.[/wpdiscuz-feedback]

     

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  • Preventive Detention

    Preventive detentions in 2021 up by 23.7% compared to year before - The Hindu

    Preventive detentions in 2021 saw a rise by over 23.7% compared with the year before, with over 1.1 lakh people being placed under preventive detention, according to statistics released by the National Crime Records Bureau (NCRB).

    What does NCRB report say on Preventive Detention?

    • Over 24,500 people placed under preventive detention were either in custody or still detained as of 2021-end — the highest since 2017 when the NCRB started recording this data.
    • Over 483 were detentions under the National Security Act, of which almost half (241) were either in custody or still detained as of 2021-end.
    • In 2017, the NCRB’s Crime in India report found that 67,084 persons had been detained as a preventive measure that year.
    • Of these, 48,815 were released between one and six months of their detention and 18,269 were either in custody or still in preventive detention as of the end of the year.

    Various provisions invoked for Preventive Detention

    • Among other laws under which the NCRB has recorded data on preventive detentions are the:
    1. Goonda Act (State and Central) (29,306),
    2. Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (1,331), and
    3. A category classified as “Other Detention Acts”, under which most of the detentions were registered (79,514).
    • Since 2017, the highest number of persons to be placed under preventive detention has consistently been under the “Other Detention Acts” category.

    Concerns over the report

    • The number of persons placed under detention has been increasing since 2017 — to over 98,700 in 2018 and over 1.06 lakh in 2019 — before dipping to 89,405 in 2020 (due to lockdowns).
    • The number of persons placed under preventive detention has seen an increase in 2021.

    What is Preventive Detention?

    • Preventive detention means detaining a person so that to prevent that person from commenting on any possible crime.
    • In other words, preventive detention is an action taken by the administration on the grounds of the suspicion that some wrong actions may be done by the person concerned which will be prejudicial to the state.

    Preventive Detention in India

    A police officer can arrest an individual without orders from a Magistrate and without any warrant if he gets any information that such an individual can commit any offense.

    • Preventive Detention Law, 1950: According to this law any person could be arrested and detained if his freedom would endanger the security of the country, foreign relations, public interests, or otherwise necessary for the country.
    • Unlawful Activities Prevention Act (UAPA) 1968: Within the ambit of UAPA law the Indian State could declare any organization illegal and could imprison anyone for interrogation if the said organization or person critiqued/questioned Indian sovereignty territorially.

    What is the difference between Preventive Detention and an Arrest?

    • An ‘arrest’ is done when a person is charged with a crime.
    • In the case of preventive detention, a person is detained as he/she is simply restricted from doing something that might deteriorate the law-and-order situation.
    • Article 22 of the Indian Constitution provides protection against arrest and detention in certain cases.

    Rights of an Arrested Person in India

    A/c to Article 22(1) and 22(2) of the Indian constitution:

    • A person cannot be arrested and detained without being informed why he is being arrested.
    • A person who is arrested cannot be denied to be defended by a legal practitioner of his choice. This means that the arrested person has right to hire a legal practitioner to defend himself/ herself.
    • Every person who has been arrested would be produced before the nearest magistrate within 24 hours.
    • The custody of the detained person cannot be beyond the said period by the authority of magistrate.

    Exceptions for Preventive Detention

    Article 22(3) says that the above safeguards are not available to the following:

    • If the person is at the time being an enemy alien
    • If the person is arrested under certain law made for the purpose of “Preventive Detention”

    Constitutional provision

    • It is extraordinary that the framers of the Indian Constitution, who suffered most because of the Preventive Detention Laws, did not hesitate to give Constitutional sanctity.
    • B.R. Ambedkar was of the opinion that the freedom of the individual should not supersede the interests of the state.
    • He had also stated that the independence of the country was in a state of inflancy and in order to save it, preventive detention was essential.

    Issues with preventive detention

    • Arbitrariness: The police determinations of whether a person poses a threat are not tested at a trial by leading evidence or examined by legally trained persons.
    • Rights violation: Quiet often, there is no trial (upto 3 months), no periodic review, and no legal assistance for the detained person.
    • Abuse: It does not provide any procedural protections such as to reduce detainees’ vulnerability to torture and discriminatory treatment, and to prevent officials’ misusing preventive detention for subversive activities.
    • Tool for suppression: In the absence of proper safeguards, preventive detention has been misused, particularly against the Dalits and the minorities.

    What has the apex court recently rule?

    • Preventive detention is a necessary evil only to prevent public disorder, ruled the Supreme Court in 2021.
    • The State should not arbitrarily resort to “preventive detention” to deal with all sundry “law and order” problems, which could be dealt with by the ordinary laws of the country.
    • Whenever an order under a preventive detention law is challenged, one of the questions the court must ask in deciding its legality is: was the ordinary law of the land sufficient to deal with the situation?
    • If the answer is in the affirmative, the detention order will be illegal.

    Upholding the Article 21

    • Preventive detention must fall within the four corners of Article 21 (due process of law) read with Article 22 (safeguards against arbitrary arrest and detention) and the statute in question, Justice Nariman ruled.
    • The Liberty of a citizen is a most important right won by our forefathers after long, historical, and arduous struggles.

    Way forward

    • Having such kind of acts has a restraining influence on the anti-social and subversive elements.
    • India is a large country and many separatist tendencies against the national security and integrity existed and existing and a strict law is required to counter the subversive activities.
    • The number of persons detained in these acts is not a very large and due attention is made before preventive detention.
    • The state should have very effective powers to deal with the acts in which the citizens involve in hostile activities, espionage, coercion, terrorism, etc.

     

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  • Untangling Kerala’s Lokayukta Amendment Controversy

    The Kerala Legislative Assembly passed the Kerala Lok Ayukta (Amendment) Bill on August 30, amid a boycott.

    Who are Lokpal-Lokayuktas?

    • The Lokpal-Lokayukta issue has always generated intense debate in the country.
    • In fact, this term was first used in a report of the Administrative Reforms Commission headed by Morarji Desai as far back as in 1966.
    • Political corruption had become rampant by then and it was thought that a credible system of an ombudsman should be established to redress public grievances against the leaders and public officials.
    • The first Bill on Lokpal was introduced in the Lok Sabha in 1968 which lapsed with the dissolution of the House.
    • Anna Hazare’s movement and the active involvement of civil society generated a lot of moral pressure on the Government which ultimately led to the passing of the Bill in 2013.

    Composition of Lokpal

    • The Lokpal is no ordinary investigative body.
    • It is headed by the incumbent Chief Justice of India or a retired judge.
    • It has eight members, four of whom are judicial members.
    • Thus the whole system is studded with judges or judicial men.
    • The Lokpal has an inquiry wing and a prosecution wing to deal with investigation and prosecution, respectively.
    • The director of prosecution files the case in the special court based on the findings of the Lokpal.

    Who falls under the ambit of Lokpal?

    • The Lokpal has jurisdiction to inquire into allegations of corruption against the Prime Minister, Ministers, Members of Parliament, Group A, B, C and D officers and officials of the central government.
    • After the conclusion of the investigation, the Lokpal may file a case in the special court in case the findings disclose the commission of offence under the Prevention of Corruption Act by the PM, Ministers or MPs.
    • However, the Lokpal does not have the power to ask the President to remove the Prime Minister or a Minister from office.

    What about the states?

    • The Lokpal and Lokayukta Act delegates the power to States to establish by law the Lokayukta to deal with complaints relating to corruption against public functionaries.
    • Some States already have established Lokayuktas. For example, Maharashtra in 1971, and Kerala in 1999.

    What is the Keralan controversy?

    • In order to get a clearer perspective on the Kerala Lokayukta controversy, it is necessary to understand the scheme of the Lokpal and Lokayuktas Act enacted by Parliament.
    • The long title of the Act says: “An Act to provide for the establishment of a body of Lokpal for the Union and Lokayukta for States to inquire into allegations of corruption against certain public functionaries….”
    • Thus, the Lokpal is conceived of as a body which will inquire into allegations of corruption.
    • It is basically an investigative body whose task is to conduct prompt and fair investigation and the prosecution of cases of corruption.

    Issues with the Amendment

    • The amendments were related to the competent authority to consider Lok Ayukta recommendations.
    • In the case of any unfavourable decision from the Lok Ayukta against the CM, the competent authority will now be the Legislative Assembly instead of the Governor as is prescribed in the existing Act.
    • The amendment tries to take away at the powers of the Governor.
    • The Lokayukta has indirectly expressed its resentment over the attempt to take away some of its powers.

    Arguments by Kerala Government

    • The Government, on the other hand, claims that through the amendment, a provision in the original Act which is unconstitutional has been excised.
    • Earlier it gave power to the Lokayukta to give directions to the Governor to remove a CM or a Minister on being found guilty of corruption.
    • This meant that the Lokayukta was to be over and above the office of Governor.

    Legal and constitutional implications

    Two important points need to be made here:

    (A) Overpowering the Lokpal

    • One, an investigative body does not have the legal authority to direct the public servant to resign his post on the basis of its findings.
    • It can only submit its findings to the competent authority or, as is provided in the Lokpal Act, file a case in the special court.
    • The Lokayukta is basically an investigative body with certain powers to carry out an investigation into cases relating to the Prevention of Corruption Act.
    • The only special feature of this body is that it is headed by a retired judge of the Supreme Court or a retired Chief Justice of a High Court.
    • But that does not alter the basic character of the Lokayukta as an investigative body.

    (B) Compulsion on Governor

    • The Chief Minister or a Minister holds office during the pleasure of the Governor (Article 164).
    • The Constitution of India does not contemplate any external pressure on the Governor to withdraw his pleasure.
    • The Sarkaria Commission had suggested that the Governor can dismiss a Chief Minister only when he loses his majority in the Assembly and refuses to step down.
    • The Supreme Court has accepted this recommendation of the Sarkaria Commission.
    • Another occasion when the Governor could withdraw his pleasure is on account of CM having been convicted in a criminal case and sentenced to not less than two years of imprisonment.
    • In other words, a Chief Minister cannot be asked to resign when he enjoys a majority in the House.
    • The Governor, being a high constitutional authority, cannot be compelled by a law to act in a particular manner so far as his constitutional duties and functions are concerned.

    Other contentious provisions

    (1) Undue burden on Political Parties

    • There are some other provisions as well which may not stand legal scrutiny.
    • For example, this law includes the office bearers of political parties within its definition of ‘public servant’.
    • Basically, the Prevention of Corruption Act deals with corruption in the government and allied agencies, statutory bodies, elected bodies, etc.
    • The functionaries of political parties do not come within the mischief of this law. So, it is difficult to understand how they can be brought within the sweep of the Lokayukta Act.

    (2) Reports of Lokayukta

    • Another problematic provision in this law is the one which deals with the reports of Lokayukta (Section 12).
    • It says that the Lokayukta shall, on the allegation of corruption being substantiated, send the findings along with recommendation of action to the competent authority who is required to take action as recommended by the Lokayukta.
    • It further says that if the Lokayukta is satisfied by the action taken by the competent authority, he shall close the case.
    • The question is how the Lokayukta can close a corruption case which is a criminal case and which invites imprisonment for three to seven years.
    • The Lokpal files the case in the court after the investigation. There is no provision in the central law under which the Lokpal can close the case before it reaches the court.
    • The Lokayukta not being a court does not have the legal capacity to close the corruption case under any circumstances.

    Way forward

    • The Kerala Lokayukta Act should be re-examined by a committee of the Assembly and should be brought on a par with the Lokpal Act.
    • Legislation that seeks to punish corrupt functionaries should be placed above controversies.

    Back2Basics: Lokpal Movement

    • The Lokpal, the apex body to inquire and investigate graft complaints against public functionaries, came into being with the appointment of its chairperson and members in March 2019.
    • In March 2019, former SC judge Justice Pinaki Chandra Ghose was selected as the first head of the Lokpal.

    Lokpal and Lokayuktas Act, 2013

    • The Lokpal Act 2013 is anti-corruption legislation that seeks to provide for the establishment of the institution of Lokpal.
    • It seeks to inquire into allegations of corruption against certain important public functionaries including the PM, cabinet ministers, MPs, Group A officials of the Central Government, etc.
    • The Bill was introduced in the parliament following massive public protests led by anti-corruption crusader Anna Hazare and his associates.
    • The Bill is one of the most widely discussed and debated Bills in India in recent times.

    Its history

    • The term Lokpal was coined in 1963 by Laxmi Mall Singhvi, a member of parliament during a parliamentary debate about grievance mechanisms.
    • The Administrative Reforms Commission (ARC) headed by Morarji Desai submitted an interim report on “Problems of Redressal of Citizen’s Grievances” in 1966.
    • In this report, ARC recommended the creation of two special authorities designated as ‘Lokpal’ and ‘Lokayukta’ for a redress of citizens’ grievances.
    • Maharashtra was the first state to introduce Lokayukta through The Maharashtra Lokayukta and Upa-Lokayuktas Act in 1971.

     

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  • Regional Benches of Supreme Court

    TN Chief Minister yet again reiterated the State’s request for establishing a Regional Bench of the Supreme Court in Chennai and allowing Tamil to be used in the Madras High Court as one of its official languages.

    Why in news?

    • Outgoing Vice President, M Venkaiah Naidu suggested bifurcation of the Supreme Court into four regional benches for speedy disposal of cases.
    • However, the Supreme Court has maintained on previous occasions that there is no need for such benches outside Delhi.

    Why the Supreme Court is located in New Delhi?

    • Article 130 of the Constitution of India reads- The Supreme Court shall sit in Delhi or in such other place or places, as the Chief Justice of India may, with the approval of the President, from time to time, appoint.
    • The law thus provides scope for setting up the Supreme Court in multiple places, subject to the concurrence of the CJI and the President.

    Who can establish the SC benches outside New Delhi?

    • The Supreme Court in Union of India v. S.P. Anand Verdict (2009), held that the Article vests exclusive discretionary powers on the matter with the Chief Justice of India.
    • It is an enabling provision and if the Chief Justice (after taking relevant factors into account) feels that the Court should sit elsewhere, s/he can seek the President’s approval for it.
    • No authority can compel the Chief Justice of India to act in a particular way under the Article.

    Voices for circuit benches

    • The Law Commission in its 229th Report had suggested setting up a Constitution Bench of the Court in New Delhi and four other benches in different regions i.e., Northern region in Delhi, Southern region in Chennai/Hyderabad, Easter region in Kolkata and Western region in Mumbai.
    • However, this idea did not find favour with the Judges of the Supreme Court.

    Reasons for having Regional/Circuit Benches

    • Access to Justice: Many litigants are discouraged to travel to Delhi from far away locations like south or northeast India.
    • Geographical Constraints: A disproportionately high number of cases filed in the Supreme Court originated in High Courts closer to Delhi. Hence coming up with regional benches will remove this constraint.
    • Huge pendency of cases: Increased workload on the Supreme Court and at present more than 65,000 cases are pending in the Supreme Court, and disposal of appeals takes many years.
    • Reducing Cost of Justice: It is observed that besides travelling to New Delhi, engaging expensive Supreme Court counsel to pursue a case is beyond the means of most litigants.

    Advantages of having circuit courts

    • Promotes Article 39A: It has been pointed out that Article 39A says that the state shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity.
    • Remove Geographical Constraints: It is high time we had more benches because in a country as vast as India the litigants have to travel long distances and spend a huge amount of money and energy.
    • Upholding the spirit of the constitution: Setting up Benches outside Delhi would neither impair unity and integrity nor undermine the importance of the Supreme Court.

     

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  • History and debates about ‘socialist’ and ‘secular’ in the Preamble

    The Supreme Court will hear a petition filed by former MP Dr Subramanian Swamy, seeking the removal of the words “Socialist” and “Secular” from the preamble of the Indian Constitution.

    Why in news?

    • The petitioners in two similar cases have argued that these words were never intended to be in the Constitution and that such insertion is beyond the amending power of the Parliament under Article 368.
    • Similar petitions have been filed earlier too and given rise to debates around the preamble and the role it plays in the Constitution.

    How did these words come?

    • The two terms were inserted into the preamble as part of the 42nd Amendment of the Constitution in 1976 during the Emergency imposed by then PM Indira Gandhi.

    What is the purpose of the Preamble?

    • A preamble serves as an introduction to a document and contains its basic principles and goals.
    • When the Indian Constitution was being drafted, the ideals behind the preamble were first laid down in the Objectives Resolution, adopted by the Constituent Assembly in 1947.
    • These ideals emerged out of the numerous debates that took place during the drafting of the Constitution.

    Initially, the Preamble said:

    “WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN DEMOCRATIC REPUBLIC and to secure to all its citizens:

    JUSTICE, social, economic and political;

    LIBERTY of thought, expression, belief, faith and worship;

    EQUALITY of status and of opportunity;

    And to promote among them all

    FRATERNITY assuring the dignity of the individual and the unity of the Nation;

    IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.”

    Nature of the preamble

    • The Constitution was the product of democratic deliberations and decided upon by the people of India themselves in the wake of freedom from colonial rule.
    • The ideals mentioned here were at the core of the newly democratic nation.
    • During the Constituent Assembly debates, many suggestions were put forth — including that God should be invoked in the preamble as in the Irish constitution, that Mahatma Gandhi’s name should be included, etc.

    Is it a part of the Constitution?

    • The question of whether the preamble is a part of the Constitution or simply an introduction has been deliberated upon by the highest court.
    • This is because the meaning and weight of the objectives mentioned in it, such as equality of status and opportunity, remained unclear from the perspective of law.
    • However, in its judgment in the famous LIC case of 1995, the Supreme Court said and the Preamble of the Constitution which is an integral part and scheme of the Constitution, affirming its position as part of the Constitution.
    • Additionally, the violation of any principle mentioned in the preamble cannot be a reason to go to court, meaning the preamble is “non-justiciable”.
    • However, judgments of courts can cite it as an additional factor in their reasoning, given that it constitutes the spirit of the Constitution.

    How else has the preamble been debated earlier?

    • In 2020 a ruling MP has moved a resolution in Rajya Sabha seeking to remove the word socialism from the preamble.
    • It said, that the earlier party which ruled the country for seven decades has changed its direction from being socialist to welfare to neo-liberalism.
    • Its new liberal policies adopted in the 1990s have negated its own earlier positions.
    • Earlier in 2015, the Ministry of Information and Broadcasting used an image of the preamble of the Indian Constitution without the words “socialist” and “secular”, leading to some criticism.

    What is the right-wing narrative?

    • These words were added during the Emergency. Now what is the harm if there is a debate on it?
    • In 2008, the Supreme Court rejected a plea demanding the removal of ‘socialist’.
    • The apex court asked-Why do you take socialism in a narrow sense defined by Communists?
    • In a broader sense, it means welfare measures for the citizens. It is a facet of democracy, said the Court.
    • It hasn’t got any definite meaning. It gets different meanings in different times.

    Under what circumstances was the preamble amended?

    • Over her years in government, Indira Gandhi had attempted to cement her approval among the masses on the basis of a socialist and pro-poor image with slogans such as “garibi hatao” (Eradicate poverty).
    • The 42nd Amendment to the Constitution, passed in 1976 when the Emergency was in place, replaced the words “sovereign democratic republic” with “sovereign socialist secular democratic republic”.
    • It also changed “unity of the nation” to “unity and integrity of the nation”.

    Were ‘Secular’ and ‘Socialist’ debated before Independence?

    • During the debates in the Constituent Assembly, members such as K T Shah and Brajeshwar Prasad had raised the demand to add these words to the preamble.
    • However, Dr B R Ambedkar argued: What should be the policy of the State, how the Society should be organised in its social and economic side are matters which must be decided by the people themselves according to time and circumstances.
    • It cannot be laid down in the Constitution itself because that is destroying democracy altogether.

    Is it inclusive of the Constitution?

    • Indeed, many principles affirming secularism and socialism were contained in the Constitution originally, such as in the Directive Principles of State Policy that is meant to guide the government in its actions.
    • Some examples are provisions related to the “equitable distribution of material resources of the community for the common good”, and protecting the rights of workers.
    • Similarly, in the fundamental rights that allow the freedom to profess and propagate one’s religion, as well as in the government policies that recognize religious occasions across communities, an Indian version of secularism is followed.
    • Unlike western secularism which strictly separates the state and religion, the Indian state has over the years acknowledged and involved itself in matters related to all religions.

     

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  • Skewed divisible pool

    divisible pool Context

    • The centralisation of fiscal powers in India has been blamed for the poor fiscal health of the states.

    Why in news?

    • Chief Ministers expressed their concern about dwindling State revenues in a NITI Aayog meeting chaired by the Prime Minister.
    • They sought a higher share in the divisible pool of taxes and an extension of GST compensation, both of which have long remained a bone of contention between the Union government and the States.

    Need for financial devolution

    • To strengthen democracy at grass root level with more revenue resources for better service delivery.
    • To increase accountability to people so performance can be realized as direct contact with people.

    What is divisible pool of taxes?

    • The divisible pool is that portion of gross tax revenue which is distributed between the Centre and the States. The divisible pool consists of all taxes, except surcharges and cess levied for specific purpose, net of collection charges.

    What is fiscal federalism?

    • Fiscal federalism refers to how federal, state, and local governments share funding and administrative responsibilities within our federal system. The funding for these programs comes from taxes and fees.

    Poor state of state finances

    • Stagnant revenue: Since States cannot raise tax revenue because of curtailed indirect tax rights — subsumed in GST, except for petroleum products, electricity and alcohol — the revenue has been stagnant at 6% of GDP in the past decade.
    • Distorted expenditure: While States lost their capacity to generate revenue by surrendering their rights in the wake of the Goods and Services Tax (GST) regime, their expenditure pattern too was distorted by the Union’s intrusion, particularly through its centrally sponsored schemes.
    • Decline in share: The ability of States to finance current expenditures from their own revenues has declined from 69% in 1955-56 to less than 38% in 2019-20.
    • Stress on finance: States’ financial health had taken a turn for the worse with the implementation of the Ujwal DISCOM Assurance Yojana, farm loan waivers, as also the slowdown in growth in 2019- 20.

    Key fact to remember

    Finance Commission keeps tax devolution for states at 41% in FY22

     

    How fiscal centralisation impacts on states?

    • Cut in the corporate tax: The recent drastic cut in corporate tax, with its adverse impact on the divisible pool, and ending GST compensation to States have had huge consequences.
    • States paying high interest rates: States are forced to pay differential interest — about 10% against 7% — by the Union for market borrowings.
    • Centrally sponsored schemes curbing autonomy: There are 131 centrally sponsored schemes, with a few dozen of them accounting for 90% of the allocation, and States required to share a part of the cost.

     

     Suggestions for strong fiscal federalism

    • Creation of federal institution: We need to create another institution in the form of a GST state secretariat that can bring together senior officers from the Centre and states in an institutional forum registered under the Society Act.
    • State Finance Commissions: should be accorded the same status as the Union Finance Commission and the 3Fs of democratic decentralization (funds, functions, and functionaries) should be implemented properly.
    • Robust GST regime: Transparency, simplification and rationalisation of GST will help states to recover soon.

    Way Forward

    • Relook on various exemptions to rationalise the taxes/levies
    • Augmentation of Tax Administration Structure
    • Technology-based Tax Administration may also be further expanded to cover even utility charges like water, street lights, sanitation charges, etc.

    Conclusion

    • It is important now to rethink the design and structure of a genuine fiscal partnership, which should not merely be a race to garner more resources, but a creative attempt to move towards a vibrant Indian value chain that can catapult India’s growth rate closer to the quest for double-digit growth.

    Mains question

    Q. Why it is important now to rethink the design and structure of a genuine fiscal partnership? Discuss this in context of Skewed divisible pool and state of fiscal federalism in India.

     

     

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  • Jurisprudence of Bail in India

    What is Bail?

    • Bail is the conditional release of a defendant with the promise to appear in court when required.
    • The term also means the security that is deposited in order to secure the release of the accused.

    Types of Bail in India

    • Depending upon the sage of the criminal matter, there are commonly three types of bail in India:
    1. Regular bail: A regular bail is generally granted to a person who has been arrested or is in police custody. A bail application can be filed for the regular bail under section 437 and 439 of CrPC.
    2. Interim bail: This type of bail is granted for a short period of time and it is granted before the hearing for the grant of regular bail or anticipatory bail.
    3. Anticipatory bail: Anticipatory bail is granted under section 438 of CrPC either by session court or High Court. An application for the grant of anticipatory bail can be filed by the person who discerns that he may be arrested by the police for a non-bailable offense.

    Conditions for Grant of Bail in Bailable Offences

    • Section 436 of the Code of Criminal Procedure, 1973, lays down that a person accused of a bailable offense under IPC can be granted bail if:
    1. There are sufficient reasons to believe that the accused has not committed the offence.
    2. There is sufficient reason to conduct a further inquiry in the matter.
    3. The person is not accused of any offence punishable with death, life imprisonment or imprisonment up to 10 years.

    Conditions for Grant of Bail in Non-Bailable Offences

    • Section 437 of Code of Criminal Procedure, 1973 lays down that the accused does not have the right to apply for bail in non-bailable offences.
    • It is discretion of the court to grant bail in case of non-bailable offences if:
    1. The accused is a woman or a child, bail can be granted in a non-bailable offence.
    2. There is a lack of evidence then bail in non-Bailable offenses can be granted.
    3. There is a delay in lodging FIR by the complainant, bail may be granted.
    4. The accused is gravely sick.

    What is the recent ruling about?

    • The Supreme Court underlined that arrest is a draconian measure that needs to be used sparingly.
    • The ruling is essentially a reiteration of several crucial principles of criminal procedure.

    Why bail needs reform?

    • Huge pendency of undertrials: Referring to the state of jails in the country, where over two-thirds lodged are undertrials,
    • Indiscriminate arrests: Of this category of prisoners, majority may not even be required to be arrested despite registration of a cognizable offense, being charged with offenses punishable for seven years or less.
    • Disadvantageous for some sections: They are not only poor and illiterate but also would include women. Thus, there is a culture of offense being inherited by many of them.
    • Colonial legacy: Theoretically, the court also linked the idea of indiscriminate arrests to magistrates ignoring the rule of “bail, not jail” to a colonial mindset.

    What is the law on bail?

    • The CrPC does not define the word bail but only categories offences under the Indian Penal Code as ‘bailable’ and ‘non-bailable’.
    • The CrPC empowers magistrates to grant bail for bailable offences as a matter of right.
    • This would involve release on furnishing a bail bond, without or without security.

    And what is the UK law?

    • The Bail Act of the United Kingdom, 1976, prescribes the procedure for granting bail.
    • A key feature is that one of the aims of the legislation is “reducing the size of the inmate population”.
    • The law also has provisions for ensuring legal aid for defendants.
    • The Act recognises a “general right” to be granted bail.

    What has the Supreme Court held on reforms?

    The court’s ruling is in the form of guidelines, and it also draws the line on certain procedural issues for the police and judiciary:

    • Separate law on Bail: The court underlined that the CrPC, despite amendments since Independence, largely retains its original structure as drafted by a colonial power over its subjects.
    • Uniform exercise of discretionary powers: It also highlighted that magistrates do not necessarily
    • Avoid indiscriminate arrests: The SC also directed all state governments and Union Territories to facilitate standing orders to comply with the orders and avoid indiscriminate arrests.

     

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  • Concerns around Aadhaar-Voter ID linkage

    Reports have surfaced online of instances where block level officers have asked individuals to link their Aadhaar with their Voter IDs, failing which their Voter IDs could be cancelled.

    What is the news?

    • This furore comes in the aftermath of the Election Commission’s (EC) campaign to promote the linkage of Voter ID and Aadhaar that began on August 1.
    • In the first ten days since its launch, the campaign saw almost 2.5 crore Aadhaar holders voluntarily submitting their details to the EC.

    Aadhaar-Voter ID linkage: Why does the government want this?

    • The EC conducts regular exercises to maintain an updated and accurate record of the voter base.
    • A part of this exercise is to weed out duplication of voters.
    • There have been migrant workers who may have been registered more than once on the electoral rolls in different constituencies or for persons registered multiple times within the same constituency.
    • As per the government, linkage of Aadhaar with voter IDs will assist in ensuring that only one Voter ID is issued per citizen of India.

    Is the linking of Aadhaar with one’s Voter ID mandatory?

    • In December 2021, Parliament passed the Election Laws (Amendment) Act, 2021 .
    • This was to amend the Representation of the People Act, 1950 and Section 23(4) was inserted in the RP Act.
    • It states that the electoral registration officer may require voters to furnish their Aadhaar numbers to verify Authencity of voters list.

    Why is it making headlines now?

    • There has been the use of discretionary language throughout the amendments.
    • This has been accompanied by assurances that linkage is optional by both the government and the EC.
    • Alternative is provided to only who does not have an Aadhaar number.
    • To that extent, the limited element of choice that has been incorporated in the amendments seem to be negated or at the very least thrown into confusion.

    Why there is such proposal for linking?

    The preference to use Aadhaar for verification and authentication, both by the state and private sector, stems from few reasons:

    • Increase in UID-holders: First, at the end of 2021, 99.7% of the adult Indian population had an Aadhaar card.
    • Most versatile document: This coverage exceeds that of any other officially valid document such as driver’s licence, ration cards, PAN cards etc. that are mostly applied for specific purposes.
    • Reliable source of authentication: Since Aadhaar allows for biometric authentication, Aadhaar based authentication and verification is considered more reliable, quicker and cost efficient when compared to other IDs.

    Issues with mandatory linking: Puttaswamy judgment highlights

    • Puttaswamy judgment: The above reasons do not suffice the mandating of Aadhaar except in limited circumstances as per the Puttaswamy judgment.
    • Indispensability of the purpose: It needs to be considered whether such mandatory linkage of Aadhaar with Voter ID would pass the test of being “necessary and proportionate” to the purpose of de-duplication which is sought to be achieved.
    • Constitutional ambiguity: In Puttaswamy, one of the questions that the Supreme Court explored was whether the mandatory linking of Aadhaar with bank accounts was constitutional or not.
    • Against informational autonomy: It is the right to privacy which would allow a person to decide which official document they want to use for verification and authentication.

    Other judicial observations: Lal Babu Hussein (1995) Case

    • The Supreme Court had held that the Right to vote cannot be disallowed by insisting only on four proofs of identity.
    • The voters are entitled to rely on any other proof of identity and obtain the right to vote.

    What are the operational difficulties?

    • Aadhaar is not a citizenship proof: The preference to Aadhaar for the purposes of determining voters is puzzling as Aadhaar is only a proof of residence and not a proof of citizenship.
    • Excluding non-citizens is not easy: Verifying voter identity against this will only help in tackling duplication but will not remove voters who are not citizens of India from the electoral rolls.
    • Estimate of error rates in biometric based authentication: This certainly differs. As per the UIDAI in 2018, Aadhaar based biometric authentication had a 12% error rate.
    • Disenfranchisement of existing voters: Errors have led to the disenfranchisement of around 30 lakh voters in AP and Telangana before the Supreme Court stalled the process of linkage.

    Key concern: Right to Privacy

    • Some civil societies has highlighted that linking of the two databases of electoral rolls and Aadhaar could lead to the linkage of Aadhaar’s “demographic” information with voter ID information.
    • This could lead to violation of the right to privacy and surveillance measures by the state.
    • This would leave the EC with the option of verifying its information only through door-to-door checks.
    • There is a lack of enforceable data protection principles that regulate how authentication data will be used.

    What lies ahead?

    • Even as the amendments have been made and the EC has launched a campaign for linkage, a writ petition has filed with the Supreme Court challenging the same.
    • It challenges the amendments as being violative of the right to privacy.
    • The Supreme Court has transferred the writ to the Delhi High Court.
    • In the meantime, it is important that the government clarifies through a correction in Form 6B that the linking is not mandatory.
    • The govt should expedite the enactment of a data protection legislation that allays concerns of unauthorized processing of personal data held by the government.

     

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  • Lifetime perks for former CJIs, SC Judges

    The Centre amended the Supreme Court Judges Rules the second time in a week to provide chauffeurs (car driver) and domestic help for retired Chief Justices of India and Supreme Court judges for their entire lifetime.

    Perks for Retired CJs

    • Retired CJIs would also get secretarial assistants.
    • The staff would be paid the salary and allowances of regular employees of the Supreme Court.
    • The first series of amendments in the Rules on August 23 had allowed retired Chief Justices of India and Supreme Court judges chauffeurs, secretarial assistants and security cover only for a year.
    • There was no mention of “domestic help”, who would be an employee in the level of junior court assistant.

    What else?

    • The judiciary had recently raised concerns about attacks on judges.
    • Hence the benefit of 24-hour security cover has been extended to five years for retired Chief Justices and three years for retired judges of the Supreme Court.
    • Besides, former CJIs and retired judges of the top court can get their monthly mobile phone and Internet bills reimbursed to the extent of â‚č4,200.
    • A retired CJI is also entitled to a rent-free Type VII accommodation, other than the designated official residence, in New Delhi for six months immediately after retirement.

    Why such move?

    • The government is one of the biggest litigants in the Supreme Court.
    • There has been public debate on whether post-retirement benefits dangled by the government could influence the judicial work of serving judges.

     

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  • What is a Full Court Meeting?

    Within hours of taking over, the new Chief Justice of India Uday Umesh Lalit called a meeting of the ‘full court’ where the judges discussed how to deal with issues relating to listing and backlog of cases.

    What is a Full Court Meeting?

    • A full court meeting literally means one which is attended by all the judges of the court.

    When is it held?

    • There are no written rules dealing with this.
    • As per convention, full-court meetings are called by the Chief Justice of India to discuss issues of importance to the judiciary.
    • The senior designations of practising advocates in the Supreme Court and high courts are also decided during the full court meetings.

    What is the significance of a full court meeting?

    • The basic idea is to take everyone along.
    • Full court meetings are an ideal occasion to arrive at common solutions to deal with problems that beset the country’s legal system and to make any amends, if necessary, in the administrative practices of the court.

    How frequently is it held?

    • As a full court meeting is convened at the discretion of the Chief Justice of India, it does not follow any particular calendar.
    • Full court meetings have been held many times in the past.
    • In March 2020, it was convened to discuss demands by associations of lawyers to close the court till further notice following the Covid-10 outbreak.
    • Also, a full court meeting held on May 7, 1997 decided that “every Judge should make a declaration of all his/her assets in the form of real estate or investment” held in own name or in the name of spouse or any person dependent.

    Do you know?

    Justice Uday Umesh Lalit, sworn in as the 49th Chief Justice of India on Saturday, will be the sixth head of the Indian judiciary to have a tenure of less than 100 days.

    Lalit will demit office on November 8 with a tenure of 74 days.

    Justice Kamal Narain Singh, who was the CJI between November 25, 1991 and December 12, 1991, had a tenure of 18 days.

    Justice S Rajendra Babu had a tenure of 30 days as the chief justice of India between May 2, 2004 and May 31, 2004.

    Justice J C Shah had a tenure of 36 days when he was the CJI between December 17, 1970 and January 21, 1971.

    Justice G B Patnaik had a 41-day tenure as the head of the Indian judiciary when he held the office of the CJI from November 8, 2002 to December 18, 2002.

    Justice L M Sharma had a tenure of 86 days as the CJI when he was in office between November 18, 1992 and February 11, 1993.

    Tap to read more about appointment of CJIs.

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