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Subject: Polity

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    • After some judges were superseded in the appointment of the CJI in the 1970s, and attempts made subsequently to affect a mass transfer of High Court judges across the country.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

    The Supreme Court Collegium has issued an unprecedented statement acknowledging differences between Chief Justice of India and two senior judges over the procedure to select candidates for appointment as apex court judges.

    What is the news?

    • Two senior judges of the apex court objected to the CJI’s never-before act of circulating his written recommendations among the collegium members for their approval.
    • The standard procedure instead is to have adopt across-the-table discussions.

    What is the issue over this?

    • CJI Lalit is slated to retire on 8
    • As per the Supreme Court convention, the outgoing CJI does not hold collegium meetings when the appointment of his successor has already started.

    What exactly is the Collegium System?

    • The collegium system was born out of years of friction between the judiciary and the executive.
    • The hostility was further accentuated by instances of court-packing (the practice of changing the composition of judges in a court), mass transfer of HC judges and two supersessions to the office of the CJI in the 1970s.
    • The Three Judges cases saw the evolution of the collegium system.

    Evolution: The Judges Cases

    • First Judges Case (1981) 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.
    • 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.
    • 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.

    How does the collegium system work?

    • The collegium of the CJI and four senior-most judges of the Supreme Court make recommendations for appointments to the apex court and High Courts.
    • The collegium can veto the government if the names are sent back by the latter for reconsideration.
    • The basic tenet behind the collegium system is that the judiciary should have primacy over the government in matters of appointments and transfers in order to remain independent.

    The procedure followed by the Collegium

    Appointment of CJI

    • The President of India appoints the CJI and the other SC judges.
    • As far as the CJI is concerned, the outgoing CJI recommends his successor.
    • In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
    • The Union Law Minister forwards the recommendation to the PM who, in turn, advises the President.

    Other SC Judges

    • For other judges of the top court, the proposal is initiated by the CJI.
    • The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
    • The consultees must record their opinions in writing and it should form part of the file.
    • The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.

    For High Courts

    • The CJs of High Courts are appointed as per the policy of having Chief Justices from outside the respective States. The Collegium takes the call on the elevation.
    • High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
    • The proposal, however, is initiated by the Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
    • The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.

    Does the Collegium recommend transfers too?

    • Yes, the Collegium also recommends the transfer of Chief Justices and other judges.
    • Article 222 of the Constitution provides for the transfer of a judge from one High Court to another.
    • When a CJ is transferred, a replacement must also be simultaneously found for the High Court concerned. There can be an acting CJ in a High Court for not more than a month.
    • In matters of transfers, the opinion of the CJI “is determinative”, and the consent of the judge concerned is not required.
    • However, the CJI should take into account the views of the CJ of the High Court concerned and the views of one or more SC judges who are in a position to do so.
    • All transfers must be made in the public interest, that is, “for the betterment of the administration of justice”.

    Loopholes in the Collegium system

    • Lack of Transparency: Opaqueness and a lack of transparency, and the scope for nepotism are cited often.
    • Judges appointing Judge: The attempt made to replace it with a ‘National Judicial Appointments Commission’ was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.
    • Criteria: Some do not believe in full disclosure of reasons for transfers, as it may make lawyers in the destination court chary of the transferred judge. It has even been accused of nepotism.

    Way ahead

    • In respect of appointments, there has been an acknowledgment that the “zone of consideration” must be expanded to avoid criticism that many appointees hail from families of retired judges.
    • The status of a proposed new memorandum of procedure, to infuse greater accountability, is also unclear.
    • Even the majority of opinions admitted the need for transparency, now Collegiums’ resolutions are now posted online, but reasons are not given.

     

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  • Governor: 1st essential part of State Legislature

    GovernorContext

    • In Tamil Nadu, the Governor forwarded the Bill for exemptio from the National Eligibility cum Entrance Test (NEET) to the President after considerable delay.
    • In Kerala the situation has become a bit curious with the Governor publicly announcing that he would not give assent to the Lokayukta Amendment Bill and the Kerala University Amendment Bill. Such actions by Governors throw the legislative programmes of governments out of gear because of the uncertainty surrounding the assent.

    What is Role of Governor in Legislature?

    • Integral part: A Bill passed by the State Assembly becomes law only after it is assented to by the Governor.The Governor being a part of the State legislature, the process of law making is complete only when he signs it, signifying his assent.
    • Established practice: In all democratic countries, similar provision exists in their constitutions.

    Governor What is the Power of Governor Vis-e-vis legislature?

    • What Article 200 says: The Constitution provides certain options for the Governor to exercise when a Bill reaches him from the Assembly.
    • There are four possible scenarios:
    1. Assent: He may give assent.
    2. Reconsider: He can send it back to the Assembly requesting it to reconsider some provisions of the Bill, or the Bill itself. In this case, if the Assembly passes the Bill without making any change and sends it back to the Governor, he will have to give assent to it.
    3. Reserve: The third option is to reserve the Bill for the consideration of the President.
    4. Withhold: The fourth option, of course, is to withhold the assent.

    What are the Legislative practice in other democracies ?

    • UK: The royal assent is necessary for a Bill to be passed by Parliament to become law and the crown has the power to withhold assent. But it is a dead letter.
    • No power of veto: By practice and usage there is no power of veto exercised by the crown in England now. Moreover, refusal of royal assent on the ground that the monarchy strongly disapproves of the Bill or that the Bill is very controversial is treated as unconstitutional.
    • USA: In the United States, the President is empowered by the Constitution to refuse assent and return a Bill to the House but if the Houses again pass it with two thirds of each House the Bill becomes law.

    GovernorWhy there is an ambiguity over the role of governors in India?

    • Role of the governor: The question of whether a Governor is permitted by the Constitution to cause uncertainty in the matter of giving assent to the Bills passed by State legislatures assumes great importance.
    • Presidential Assent: The provision concerned makes it clear that a Bill can be reserved for the consideration of the President only if the Governor forms an opinion that the Bill would endanger the position of the High Court by whittling away its powers. The Constitution does not mention any other type of Bill which is required to be reserved for the consideration of the President. Nevertheless, the courts have conceded a certain discretion to the Governors in the matter of sending Bills to the President.
    • Constitution is silent: the Constitution does not mention the grounds on which a Governor may withhold assent to a Bill.
    • No remedy: The Indian Constitution, however, does not provide any such remedy as that of USA or UK . The courts too have more or less accepted the position that if the Governor withholds assent, the Bill will go. Thus, the whole legislative exercise will become fruitless. It does not square with the best practices in old and mature democracies.

    What is the Court mandated legislative practice?

    • According to Article 361: The Constitution prohibits the court from initiating proceedings against a Governor or the President for any act done in exercise of their powers. They enjoy complete immunity from court proceedings. It is in fact a unique situation where a government is placed in a situation of having to challenge a Governor’s action of withholding assent to a Bill.
    • Reasons: Governor while declaring that he withholds assent will have to disclose the reason for such refusal.
    • No Arbitrary actions: Being a high constitutional authority, the Governor cannot act in an arbitrary manner
    • Unconstitutional: If the grounds for refusal disclose mala fide or extraneous considerations or ultravires, the Governor’s action of refusal could be struck down as unconstitutional.
    • Rameshwar Prasad and Others. vs Union of India case: The Court held: “the immunity granted by Article 361(1) does not, however, take away the power of the Court to examine the validity of the action including on the ground of malafides”.
    • Pocket veto: since the Constitution does not fix any timeline for the Governor to decide the question of assent, he can wait for any length of time without doing anything. This is illogical and militates against the constitutional scheme in respect of law making by the legislatures.

    GovernorConclusion

    • The legislature reflects the will of the people and is the constitutionally designated body to make laws. If the Governor who does not reflect in any way the aspirations of the people of the State refuses assent, and thereby defeats the legislative programme of the elected government, it would be against the spirit of the Constitution.

    Mains Question

    Q.Governor is the connecting link between state and central executive. Discuss the duties of Governor with respect to state legislature? Why Governor tilt more towards centre than state?

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  • Parliamentary Committees, their leaders, and their role in law-making

    A recent revamp of the Standing Committees of Parliament could potentially worsen the relations between the government and opposition parties.

    Why in news?

    • Of the 22 committees announced, the erstwhile ruling party has the post of chairperson in only one, and the opposition party from West Bengal has none.
    • The ruling party has the chairmanship of the important committees on Home, Finance, IT, Defence and External Affairs.

    What are Committees of Parliament?

    • A Parliamentary Committee is a panel of MPs that is appointed or elected by the House or nominated by the Speaker, and which works under the direction of the Speaker.
    • It presents its report to the House or to the Speaker.
    • Parliamentary Committees have their origins in the British Parliament.
    • They draw their authority from Article 105, which deals with the privileges of MPs, and Article 118, which gives Parliament authority to make rules to regulate its procedure and conduct of business.

    What do they do?

    • Legislative business begins when a Bill is introduced in either House of Parliament.
    • But the process of lawmaking is often complex, and Parliament has limited time for detailed discussions.
    • Also, the political polarisation and shrinking middle ground has been leading to inconclusive debates in Parliament.
    • As a result of this, a great deal of legislative business ends up taking place in the Parliamentary Committees instead.
    • The aim is to increase Parliamentary scrutiny, and to give members more time and a wider role in examining important legislation.

    What are the various Committees of Parliament?

    • Broadly, Parliamentary Committees can be classified into Financial Committees, Departmentally Related Standing Committees, Other Parliamentary Standing Committees, and Ad hoc Committees.
    • The Financial Committees include the Estimates Committee, Public Accounts Committee, and the Committee on Public Undertakings.
    • These committees were constituted in 1950.
    • Seventeen Departmentally Related Standing Committees came into being in 1993, when Shivraj Patil was Speaker of Lok Sabha.
    • They aimed to examine budgetary proposals and crucial government policies.

    Composition of these committees

    • The number of Committees was subsequently increased to 24.
    • Each of these Committees has 31 members — 21 from Lok Sabha and 10 from Rajya Sabha.
    • Ad hoc Committees are appointed for a specific purpose.

    How are the Committees constituted?

    • There are 16 Departmentally Related Standing Committees for Lok Sabha and eight for Rajya Sabha; however, every Committee has members from both Houses.
    • Lok Sabha and Rajya Sabha panels are headed by members of these respective Houses.
    • Among the important Lok Sabha panels are: Agriculture; Coal; Defence; External Affairs; Finance; Communications & Information Technology; Labour; Petroleum & Natural Gas; and Railways.
    • The important Rajya Sabha panels include Commerce; Education; Health & Family Welfare; Home Affairs; and Environment.
    • There are other Standing Committees for each House, such as the Business Advisory Committee and the Privileges Committee.
    • The Presiding Officer of each House nominates members to these panels. A Minister is not eligible for election or nomination to Financial Committees, and certain Departmentally Related Committees.

    Appointing of chairmen

    • The appointment of heads of the Committees is also done in a similar way. By convention, the main Opposition party gets the post of PAC chairman; it is currently with the Congress.
    • Chairmanship of some key committees has been allocated to opposition parties in the past. However, this pattern has changed in the latest rejig.
    • The heads of the panels schedule their meetings.
    • They play a clear role in preparing the agenda and the annual report, and can take decisions in the interest of the efficient management of the Committee.
    • The chairperson presides over the meetings and can decide who should be summoned before the panel.

    How do they work?

    • Bills that are referred to Committees often return to the House with significant value-addition.
    • The Committees look into the demands for grants of Ministries/departments, examine Bills pertaining to them, consider their annual reports, and look into their long-term plans and report to Parliament.

    What are Ad hoc Committees?

    • Ad hoc Committees cease to exist after they have completed the task assigned to them, and have submitted a report to the House.
    • The principal Ad hoc Committees are the Select and Joint Committees on Bills.
    • Committees like the Railway Convention Committee, Committee on Food Management and Security in Parliament House Complex, etc. also come under the category of Ad hoc Committees.

    What about Joint Parliamentary Committee (JPC)?

    • Parliament can also constitute a JPC with a special purpose, with members from both Houses, for detailed scrutiny of a subject or Bill.
    • Also, either of the two Houses can set up a Select Committee with members from that House.
    • JPCs and Select Committees are usually chaired by ruling party MPs, and are disbanded after they have submitted their report.

    Why need all these committees?

    • The time to speak on a Bill is allocated according to the size of the party in the House.
    • MPs often do not get adequate time to put forward their views in Parliament, even if they are experts on the subject.
    • Committees are small groups with relatively less demands on their time; in these meetings, every MP gets a chance and the time to contribute to the discussion.
    • Parliament has only around 100 sittings a year; Committee meetings are independent of Parliament’s calendar.

    How do discussions/ debates here differ from those in Parliament?

    • The discussions are confidential and off-camera.
    • Political Party affiliations usually do not come in the way of MPs speaking their minds in ways they are unable to do in Parliament.
    • The Committees work closely with multiple Ministries, and facilitate inter-ministerial coordination.

    How important are the recommendations of the Committees?

    • Reports of Departmentally Related Standing Committees are recommendatory in nature.
    • However, suggestions by the Select Committees and JPCs — which have a majority of MPs and heads from the ruling party — are accepted more frequently.
    • They are not binding on the government, but they do carry significant weight.
    • In the past, governments have accepted suggestions given by the Committees and incorporated them into the Bills.

    Significance of Parliamentary committees

    • Many MPs concede that “real discussions” happen inside the Committees.
    • The former US President Woodrow Wilson had observed that “Congress in session is Congress on public exhibition, whilst Congress in its committee rooms is Congress at work”.

    Try this PYQ:

    Q.With reference to the Parliament of India which of the following Parliamentary Committees scrutinizes and reports to the House whether the powers to make regulations, rules, sub rules, bylaws, etc. conferred by the Constitution or delegated by the Parliament are being properly exercised by the Executive within the scope of such delegation?

     

    (a) Committee on Government Assurances

    (b) Committee on Subordinate Legislation

    (c) Rules Committee

    (d) Business Advisory Committee

     

    [wpdiscuz-feedback id=”siihj0de96″ question=”Please leave a feedback on this” opened=”1″]Post your answers here.[/wpdiscuz-feedback]

     

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  • In news: Criterion for SC status

    The Supreme Court has sought the most recent position of the Union government on a batch of petitions challenging the Constitution (Scheduled Castes) Order of 1950, which allows only members of Hindu, Sikh and Buddhist religions to be recognised as SCs.

    The Constitution Order of 1950

    • When enacted, the Constitution (Scheduled Castes) Order of 1950, initially provided for recognising only Hindus as SCs.
    • It was then aimed to address the social disability arising out of the practice of untouchability.
    • The Order was amended in 1956 to include Dalits who had converted to Sikhism and once more in 1990 to include Dalits who had converted to Buddhism.
    • Both amendments were aided by the reports of the Kaka Kalelkar Commission in 1955 and the High Powered Panel (HPP) on Minorities, SCs and STs in 1983 respectively.

    What about Christians?

    • The Union government in 2019 rejected the possibility of including Dalit Christians as members of SCs.
    • This decision was rooted on the exclusion on an Imperial Order of 1936 of the then colonial government, which had first classified a list of the Depressed Classes and specifically excluded “Indian Christians” from it.

    Why are Dalit Christians excluded?

    • SC status is meant for communities suffering from social disabilities arising out of the practice of untouchability that was prevalent in Hindu and Sikh communities.
    • SC status for everyone would significantly swell the population of SCs across the country thus trivializing the purpose itself.

    Why neo-Buddhists are included in SC quota?

    • The amendment to include Buddhist converts as SCs was passed in 1990.
    • Like Dalit Buddhists, Dalits who converted to Islam or Christianity belonged to different sets of caste groups and not just one.
    • As a result of this, they cannot be categorised as a “single ethnic group”, which is required by Clause (2) of Article 341 for inclusion.

    Major concerns of including other religions

    • Sanction of untouchability: The practice of “untouchability” was a feature of Hindu religion and its branches. This would imply that India was trying to “impose its caste system” upon Christians and Muslims.
    • Undue internationalization: Allowing the inclusion of Dalit Muslims and Dalit Christians as SCs could result in being misunderstood internationally.
    • Reviving casteism: Christians and Muslims of Dalit origin had lost their caste identity by way of their conversion and that in their new religious community, the practice of untouchability is not prevalent.

    Is there a case for inclusion?

    • The petitions arguing for inclusion have cited several independent Commission reports that have documented the existence of caste and caste inequalities among Indian Christians and Indian Muslims.
    • Even after conversion, members who were originally from SCs continued to experience the same social disabilities.
    • This was substantiated in the First Backward Classes Commission’s report in 1953, the HPP report on SCs, STs, and Minorities in 1983, the Mandal Commission Report, etc.
    • However, these reports do not have enough empirical evidence to support their claims.

    Why is the issue debated?

    • Non-deserving beneficiaries: The proposition that caste identity is lost upon conversion, noting that even in Sikhism and Buddhism, casteism is not present and yet they have been included as SCs.
    • Continued discrimination: The above-mentioned reports argue that caste-based discrimination continues even after conversion, hence entitling these communities to SC status.

     

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  • Is Draft Telecommunications Bill, 2022 Flawless?

    Draft Telecommunications Bill, 2022Context

    • Keeping an eye on the telecommunication regulatory framework Supreme Court issued substantive legal reform on surveillance laws in India. Union government has published the Draft Telecommunications Bill, 2022 to replace the Telegraph Act, 1885.

    Background

    • Over two decades ago, allegations of surveillance against politicians led to a CBI inquiry and report against V P Singh’s government. The allegations revealed that imaginary reasons were given for ordering phone tapping without authorization.
    • Last years, many publications reported that phones of several dozen Indian journalists, lawyers and human rights activists had been compromised using an invasive Israeli-developed malware called Pegasus.

    Draft Telecommunications Bill, 2022What is Draft Telecommunications Bill, 2022?

    • The draft Indian Telecommunication Bill, 2022 is an attempt by the Department of Telecommunications (DoT) to consolidate various legislations presently governing the telecommunication landscape in India.
    • The Bill seeks to replace three laws, the Indian Telegraph Act, 1885, the Indian Wireless Telegraphy Act, 1933 and the Telegraph Wires (Unlawful Possession) Act, 1950.
    • The new regulatory framework is to bring the law at par with technological advancements and remove obsolete provisions from the colonial era laws.

    What are the current laws governing communication surveillance in India?

    Communication surveillance in India takes place primarily under two laws:

    • Telegraph Act, 1885: It deals with interception of calls.
    • Call interception:Under Section 5(2) of this law, the government can intercept calls only in certain situations.
    • For sovereignty:They include the interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states or public order, or for preventing incitement to the commission of an offense.
    • Free speech restrictions:These are the same restrictions imposed on free speech under Article 19(2) of the Constitution.
    • Exceptions for journalists:A provision in Section 5(2) states that even this lawful interception cannot take place against journalists.
    • Information Technology Act, 2000: It was enacted to deal with surveillance of all electronic communication, following the Supreme Court’s intervention in 1996.
    • Electronic surveillance:Section 69 of the IT Act and the IT (Procedure for Safeguards for Interception, Monitoring, and Decryption of Information) Rules, 2009 were enacted to further the legal framework for electronic surveillance.
    • Data interception:Under the IT Act, all electronic transmission of data can be intercepted.
    • Section 69 of the IT Act adds another aspect that makes it broader — interception, monitoring, and decryption of digital information “for the investigation of an offense”.

    Draft Telecommunications Bill, 2022How the loopholes in the current system breaching the Data Privacy?

    • No comprehensive data Protection Law:
    • No comprehensive data protection law leaving ambiguities over several laws.
    • A comprehensive data protection law to address the gaps in existing frameworks for surveillance is yet to enact.
    • Unaccountable, opaque exercise of surveillance:
    • The Telegraph Act contains broad and excessive powers of interception and surveillance of communications carried out through any telegraph.
    • The surveillance power is principally contained under Section 5(2), and has resulted in an unaccountable, opaque and unconstitutional exercise of surveillance that has led to accusations across the political spectrum.
    • Less transparency:
    • Ministry of Home Affairs refuses to disclose even aggregate data on the number of surveillance orders issued by it each year illegally gathered evidence is being sought to prosecute people.
    • For instance, the Bombay High Court about three years ago noted in a case that premier investigating agencies such as the CBI have used, interception orders (that) neither have sanction of law nor issued for legitimate aim.

    Draft Telecommunications Bill, 2022Key features of the Draft Telecommunications Bill, 2022

    • Broad Definitions:
    • The Bill introduces a broad definition of ‘telecommunication services’.
    • It now includes internet-based services, in-flight and maritime connectivity, interpersonal communications services, machine to machine communication services, and over-the-top (OTT) based communication services that are made available to users by telecommunication
    • KYC and caller id requirements:
    • The Bill requires licensed entities to ensure that they identify the persons to whom they provide telecommunication services.
    • The Bill places an obligation on telecommunication service providers to do this through a ‘verifiable mode’, as prescribed by the government.
    • Licensing, registration, and authorization:
    • Under the Bill, four types of permissions are identified – license, registration, authorization and assignment.
    • While the Bill does not differentiate between the four types of permissions, it clarifies that a license is only required for providing telecommunication services or operating telecommunication networks
    • Wide ranging powers of Central Government:
    • The Bill includes wide-ranging powers for the central and state governments in the event of a public emergency or in interest of public safety.
    • These powers include taking temporary possession of any telecommunication services, suspension of transmission in cases of public emergency, interception/detainment/disclosure of messages, suspension of communications, or otherwise transmit certain announcements for public safety and national security purposes.
    • User protection and duties: User has been declared as an important policy objective of the Government. It places a duty on users to not furnish false information, suppress material information or impersonate others when proving identity to avail telecommunication services.
    • Offences and penalties: Any offence under the Bill may be punished with a fine, imprisonment, suspension of telecommunication services or a combination of the above. For companies, the employees who were responsible for the conduct or the business relating to the offence at the time the offence was committed will be punished.
    • Dispute resolution mechanism: The Bill provides for the right of appeal before the appellate authority. It also creates an enabling provision for the Central Government to set up an alternate dispute resolution mechanism such as arbitration, mediation or other processes of dispute resolution

    What are Concerns over the Draft Telecommunication bill, 2022?

    • Regulatory overlaps:The broad of the definition of ‘telecommunication services’ include OTT communication platforms such as WhatsApp, Telegram, Signal among others, may potentially lead to regulatory or jurisdictional overlaps.
    • Unchecked use of State powers:The Bill gives broad powers to the central government in prescribed situations without any accompanying checks and balances. The Bill empowers the central and state government to intercept messages in the interest of public safety and emergency without the providing clearly defined guardrails for it.
    • Undefined National security: The term, national security is left undefined and does not match constitutional precedent or text which instead uses the phrase,in the interests of the security of state
    • Users Less choice in the privacy and security of their digital footprint:
    • Power to prescribe standards under Clause 23, which may result in regulations as recently issued by the Computer Emergency Response Team (CERT-In) that have resulted in the closure of servers or services by leading, global VPN providers such as Proton and TunnelBear.
    • All of this practically means that users will have less choice in the privacy and security of their digital footprint, as these powers will lead to requirements to locally register and host data, and comply with requirements to identify users (KYC requirements).

    Conclusion

    • There should be some reasonable basis or some tangible evidence to initiate or seek approval for interception by State authorities. Any digression from the ethical and legal parameters set by law would be tantamount to a deliberate invasion of citizens.

    Mains Question

    Q. Any deviation from the moral and legal parameters set by the law would amount to a deliberate attack on citizens. In this context discuss the data privacy of citizens in the era of massive expansion of internet and mobile usage.

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  • The Mediation Bill,2021: Needs And Concerns

    MediationContext

    • The Mediation Bill, 2021 was introduced in the Rajya Sabha on December20, 2021,with the Parliamentary Standing Committee being tasked with a review of the Bill. The committee’s report to the Rajya Sabha was submitted on July 13, 2022. In its report, the Committee recommends substantial changes to the Mediation Bill, aimed at institutionalising mediation and establishing the Mediation Council of India.

    What is mean by mediation?

    • Mediation: Mediation is a process wherein the parties meet with a mutually selected impartial and neutral person who assists them in the negotiation of their differences.
    • Brings Parties Together: Parties can save and sometimes rebuild their relationship like during a family dispute or commercial dispute.
    • Very Convenient: The parties can control the time, location, and duration of the proceedings to large extent. Scheduling isn’t subject to the convenience of courts

    MediationWhy does India need mediation?

    • No separate law: While there is no standalone legislation for mediation in India, there are several statutes containing mediation provisions,such as the Code of Civil Procedure, 1908,the Arbitration and Conciliation Act, 1996,the Companies Act, 2013, the Commercial Courts Act, 2015, and the Consumer Protection Act, 2019.
    • Supreme Court mandate: The Mediation and Conciliation Project Committee of the Supreme Court of India describes mediation as a tried and tested alternative for conflict resolution.
    • Being an international signatory: As India is a signatory to the Singapore Convention on Mediation (formally the United Nations Convention on International Settlement Agreements Resulting from Mediation), it is appropriate to enact a law governing domestic and international mediation.

    What are the Key features of the Mediation bill?

    • Promote mediation: The Bill aims to promote, encourage, and facilitate mediation, especially institutional mediation, to resolve disputes, commercial and otherwise.
    • Mandatory Mediation: The Bill further proposes mandatory mediation before litigation. At the same time, it safeguards the rights of litigants to approach competent adjudicatory forums/courts for urgent relief.
    • Confidentiality: The mediation process will be confidential and immunity is provided against its disclosure in certain cases.
    • Legally binding: The outcome of the mediation process in the form of a Mediation Settlement Agreement (MSA) will be legally enforceable and can be registered with the State district or taluk legal authorities within 90days to ensure authenticated records of the settlement.
    • Mediation Council of India: The Bill establishes the Mediation Council of India and also provides for community mediation.
    • Services of Mediator: If the parties agree, they may appoint any person as a mediator. If not, they may apply to a mediation service provider to appoint a person from its panel of mediators.
    • Disputes where no mediation required: The Bill lists disputes that are not fit for mediation (such as those involving criminal prosecution, or affecting the rights of third parties). The central government may amend this list.
    • Time bound process: The mediation process must be completed within 180 days, which may be extended by another 180 days by the parties.

    MediationWhat are the Concerns over the bill?

    • Mandatory provision: According to the Bill, pre-litigation mediation is mandatory for both parties before filing any suit or proceeding in a court,whether or not there is a mediation agreement between them.
    • Monetary punishment: Parties who fail to attend pre-litigation mediation without a reasonable reason may incur a cost. However,as per Article 21 of the Constitution,access to justice is constitutional right which cannot be fettered or restricted. Mediation should just be voluntary and making it otherwise would amount to denial of justice.
    • Clause 26: According to Clause26 of the Bill, court annexed mediation, including pre-litigation mediation, will be conducted in accordance with the directions or rules framed by the Supreme Court or High Courts. However, the Committee objected to this. It stated that Clause26 went against the spirit of the Constitution.In countries that follow the Common Law system, it is a healthy tradition that inthe absence of statutes, apex court judgments and decisions carry the same weight. The moment a law is passed however, it becomes the guiding force rather than the instructions or judgments given by the courts. Therefore, Clause 26 is unconstitutional.
    • Lack of international enforceability: Bill considers international mediation to be domestic when it is conducted in India with the settlement being recognised as a judgment or decree ofa court. The Singapore Convention does not apply to settlements that already have the status of judgments or decrees. As a result, conducting cross border mediation in India will exclude the tremendous benefits of worldwide enforceability.

    MediationConclusion

    • In order to enable a faster resolution of disputes,the Bill should be implemented after discussion with stakeholders and resolve the issues in an amicable manner. It’s a good opportunity for India to become an international mediation hub for easy business transactions.

    Mains Question

    Q.Address the key concerns in the mediation bill 2021 and how India can become the centre of international dispute resolutions.Discuss.

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  • Live-streaming of Court: Definitely A Great Move

    CourtContext

    • On September 27, the Supreme Court enabled the live streaming of the hearing of cases.
    • A full court of all Supreme Court judges under the leadership of Chief Justice U U Lalit took the unanimous decision to live-stream constitutional bench proceedings. Justice Chandrachud, the Chairperson of the Supreme Court’s E-committee and the driving force behind the live streaming initiative, began the hearing in his courtroom by announcing,”We are virtual”.

    Background

    • The Court’s original decision by the bench of the then Chief Justice Dipak Misra, Justice A M Khanwilkar and Justice D Y Chandrachud on September 27, 2018, allowing the live telecast of important proceedings paved the way for this outcome. They had held that the live-streaming of court proceedings is in the public interest.
    • Their vision had the full support of Chief Justices M V Ramana and U U Lalit.

    What is live-streaming technology?

    • At its core, streaming content is meant to help people attend events, expos, and experiences they cannot attend in person.
    • Live streaming technology is how videos are streamed over the internet, live, in real-time, as they are being recorded.
    • Live streaming technology is the internet’s response to live television broadcasts, with the most popular being news shows and sports.

    What is Live-streaming of the court?

    • Live streaming of court is that its proceedings that the people can watch on their mobiles and computers.All courtrooms function under camera glare.

    CourtWhy Live-streaming of court is so important?

    • Instilling Faith in the Judiciary: Enabling the ordinary people of the country to view, without any barrier, the workings of the highest court of the land will go a long way in instilling faith in the judiciary.
    • Empowering the masses: It will enable the legal system to deliver on its promise of empowering the masses.Important step toward developing an informed citizenry.
    • Respect to Rule of Law: The decision will enable people to understand the importance of the rule of law.It will help people appreciate that the judiciary is firm in protecting the rights of the impoverished, historically marginalised and disempowered sections of society. Potential to build a culture of respect for the rule of law.
    • Living up the expectation of Constitution: Live-Streaming of Court proceedings is manifested in public interest. Public interest has always been preserved through the Constitution article 19 and 21.
    • More transparency: It will encourage the principle of open court and reduce dependence on second-hand views. It will effectuate the public’s right to know. This would inspire confidence in the functioning of the judiciary as an institution and help maintain the respect that it deserved as a co-equal organ of the state.
    • Raise the quality and standards of the legal profession: Lawyers will be better prepared to appear before the court and they will be mindful of not making irresponsible remarks. An inclusive approach to public scrutiny could nudge and enable lawyers to take the justice delivery mechanisms more seriously than they may have in the past.
    • Level playing field: It also creates a level playing ground for the younger members of the legal profession as their preparedness and intellectual prowess will be apparent to all.
    • Academic help: Watching courtroom proceedings,actual arguments by lawyers and searching questions by judges  could inspire law students to take up this relatively neglected field.Law faculty members and legal researchers will be motivated to work on new areas of scholarship and research relating to the functioning of the judiciary and legal profession.
    • Easy accessibility reducing the obstacle of distance: With live-streaming, the litigants will no longer have to come to Delhi to witness proceedings of their case which would be just a click away.
    • Strengthening Democracy: Transparency and accessibility of the process of justice delivery will strengthen the country’s democracy

    CourtWhat are the Concerns around live-streaming of court?

    • Contempt of court: Video clips of proceedings from Indian courts are already on YouTube and other social media platforms with sensational titles and little context, such as “HIGH COURT super angry on army officer”.
    • Disinformation and sensationalism: There are fears that irresponsible or motivated use of content could spread disinformation among the public.
    • Unnecessary activism: With the advent of social media, every citizen became a potential journalist. Study shows that justices behave like politicians when given free television time, they act to maximize their individual exposure
    • Internet connectivity: Internet connectivity issues and the need for a well-equipped space where lawyers can conduct their cases are some of the major problems requiring attention.
    • Awareness and training: Judges, court staff and lawyers are not well-versed with digital technology and its benefits. The need of the hour is for them to be made aware of these and receive adequate training.

    CourtWhich countries live-stream their court hearing?

    • Internationally,constitutional court proceedings are recorded in some form or the other.
    • United States: The Supreme Court of the United States streams its hearings in audio format at the end of each week.The US top court publishes hearings on its website and Oyez of all cases. Oyez is a multimedia judicial archive of the Supreme Court of the United States’ proceedings.
    • Brazil: The Supreme Federal Court of Brazil live streams hearings of all cases in video format on television.
    • UK: The UK Supreme Court live streams hearings of all cases in video format on its website.
    • Canada: The Canadian Supreme Court also live streams hearings of all its cases in video format on its website.
    • Australia: The Australian Supreme Court streams hearings of its full-court cases on its website with a delay of about a day. Meanwhile, the High Court of Australia (HCA) does not live-stream its proceedings.
    • China: In China,court proceedings are live-streamed from trial courts up to the Supreme People’s Court of China.

    Conclusion

    • The chief justices (past and present) and the judges of the Supreme Court deserve to be congratulated for enabling a path-breaking and democratic decision that allows the people of India to be able to watch the live proceedings of the Constitutional Bench.The distinguished jurist, Oliver Holmes,famously observed,“The great thing in the world is not so much where we stand, as in what direction we are moving.” The judges of the Supreme Court of India have ensured that we are indeed moving in the right direction.

    Mains Question

    Q.Adoption of technology will radically change the field of law and transform the judiciary. What will be the role of courts, judges, politicians,media and citizens of the country regarding live streaming of court proceedings. Discuss

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