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Subject: Polity

  • Right to privacy after 5 years

    right to privacyContext

    • Data privacy breaches which result in the loss and theft of personal, sensitive data have not reduced in terms of measurable frequency or their impact.
    • It has been 5 years since the nine-judge Supreme Court bench delivered the judgment in the Puttaswamy case. It asserted that Indians have a constitutionally protected fundamental right to privacy.

    Right to Privacy can be defined as

    • A right to be let alone;
    • The right of a person to be free from any unwarranted publicity;
    • The right to live without any unwarranted interference by the public in matters with which the public is not necessarily concerned.

    right to privacyDefinition of data

    • Data is a collection of discrete values that convey information, describing quantity, quality, fact, statistics, other basic units of meaning, or simply sequences of symbols that may be further interpreted.

    What is Data Protection?

    • Data protection refers to policies and procedures seeking to minimise intrusion into the privacy of an individual caused by collection and usage of their personal data.

    What is data privacy?

    • Data privacy refers to controlling access to the data. Organizations must determine who has access to data. Understandably, a privacy breach can lead to data security issues.

    What is data security?

    • Data security refers specifically to measures taken to protect the integrity of the data itself against manipulation and malware. It provides defense from internal and external threats.

    Why we need data protection?

    • Increasing internet use: India currently has over 750 million Internet users, with the number only expected to increase in the future.
    • Data breaches: At the same time, India has among the highest data breaches in the world. Without a data protection law in place, the data of millions of Indians continues to be at risk of being exploited, sold, and misused without their consent.
    • Individual privacy: Data monetization may happen at cost of individual privacy. The most sought-after datasets are those that contain sensitive personal data of individuals, ex. medical history, financial data.

    right to privacy
    Issues with the data breaches in India

    • Violation of the right to privacy: The right to privacy was recognized as a fundamental right, included under the right to life and liberty by the Supreme Court of India in 2017.
    • Absence of legal framework: Without a law in place to regulate data collection and to act as an oversight mechanism, valid concerns about privacy and other rights violations continue to arise.
    • High Infrastructural Costs: Technologies like Artificial Intelligence and Big Data are costly to implement. The size of stored information is extremely large and requires huge network & data storage facilities, which are currently not available in India.
    • The concern of Data Leakage: In today’s world of cybercrime, it is important to put appropriate safeguards in place in order to ensure the integrity of the repository/database, so that it doesn’t leak out the information and is not privatized or monetized.
    • Reliability & Authenticity: As the data collected may be used in the court of law during the course of a criminal trial, the reliability and the admissibility of the data along with standards and procedures followed would be taken into consideration. Hence, the authenticity of the data is crucial.

    Conclusion

    • Today, there is a relentless pace of digitisation that relies on gathering personal data in all spheres of our lives. All of this is done in a legal vacuum without any oversight or remedy. This underscores the urgent need for robust data protection law.

    Mains question

    Q.  What do you understand by the term data privacy? Explain how data leakages threatens the sacred right to privacy?

     

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  • Three-judge bench to review SC Verdict on Poll Promises

    The Supreme Court has decided to reconsider a 2013 judgment on Poll Promises, which held that promises in the election manifesto do not constitute a “corrupt practice” under the law.

    What is the news?

    • A Bench led by the CJI, Ramana, ordered a three-judge Bench to be set up to review the court’s earlier position.

    Subramaniam Balaji Judgment: Invalidating certain Poll Promises

    • It was held that pre-poll promises made by political parties to entice voters do not fall within the ambit of Section 123 (corrupt practices) under the Representation of the People (RP) Act.
    • The judgment, delivered by a two-judge Bench, had observed that although the law is obvious that the promises in the election manifesto cannot be construed as ‘corrupt practice’ under Section 123 of RP Act.
    • The reality cannot be ruled out that distribution of freebies of any kind, undoubtedly, influences all people.

    Why revisit this judgment?

    • Rationale of the freebie: Now the CJI has said the three-judge Bench should consider whether an enforceable order can be passed to stop political parties in power from promising and distributing “irrational freebies”.
    • Freebie vs. Welfare schemes: He opined that such freebies are completely divorced from actual welfare schemes, using public money in order to merely “capture vote banks”.
    • Prevent bankruptcy: Freebies may create a situation wherein the State government cannot provide basic amenities due to lack of funds and the State is pushed towards imminent bankruptcy.
    • Expert review: The new Bench would also deliberate if an expert body can be formed to independently study and make recommendations against the distribution of largesse at the cost of the national economy and public welfare.

    What amounts to Freebie?

    • The term Freebies is not new; rather it is a prevalent culture in Indian politics (in the name of socialism).
    • The political parties are always trying to outdo each other in luring the Indian voters with assorted freebies.
    • From free water to free smartphones the Indian politicians promise everything to attract prospective voters in favour.
    • This trend has gained more momentum in the recent times with the political parties being innovative in their offerings as the ‘traditional free water and electricity’ is no longer sufficient as election goodies.

    Examples of freebies

    1. Promise of Rs 15 lakh in our bank accounts
    2. Free TV, Laptops
    3. Free electricity
    4. Loan waivers
    5. Offering free public transport ride to all women in Delhi

    Why are such policies popular among the public?

    • Failure of economic policies: The answer lies in the utter failure of our economic policies to create decent livelihood for a vast majority of Indians.
    • Quest for decent livelihood: The already low income had to be reoriented towards spending a disproportionately higher amount on education and health, from which, the state increasingly withdrew.
    • Prevailing unemployment:  Employment surveys have shown that employment growth initially slowed down from the 1990s, and then has turned negative over the past few years.
    • Increased cost of living: Real income growth of the marginal sections has actually slowed down since 1991 reforms.
    • Increased consumerism: The poor today also spend on things which appear to be luxuries; cellphones and data-packs are two such examples which are shown as signs of India’s increased affluence.
    • Necessity: For migrant workers, the mobile phone helps them keep in touch with their families back home, or do a quick video-call to see how their infant is learning to sit up or crawl.

    Can Freebies be compared with Welfare Politics?

    • These freebies are not bad. It is a part of social welfare.
    • Using freebies to lure voters is not good.
    • Voter’s greediness may lead to a problem in choosing a good leader.
    • When we don’t have a good leader then democracy will be a mockery.

    Impact of such policies

    • Never ending trail: The continuity of freebies is another major disadvantage as parties keep on coming up with lucrative offers to lure more number of votes to minimize the risk of losing in the elections.
    • Burden on exchequer: People forget that such benefits are been given at the cost of exchequer and from the tax paid.
    • Ultimate loss of poors: The politicians and middlemen wipe away the benefits and the poor have to suffer as they are deprived from their share of benefits which was to be achieved out of the money.
    • Inflationary practice: Such distribution freebie commodity largely disrupts demand-supply dynamics.
    • Lethargy in population: Freebies actually have the tendency to turn the nation’s population into: Lethargy and devoid of entrepreneurship.
    • Money becomes only remedy: Everyone at the slightest sign of distress starts demanding some kind of freebies from the Govt.
    • Popular politics: This is psychology driving sections of the population expecting and the government promptly responds with immediate monetary relief or compensation.

    What cannot be accounted to a freebie?

    • MGNREGA scheme (rural employment guarantee scheme)
    • Right to Education (RTE)
    • Food Security through fair price shops ( under National Food Security Act)
    • Prime Minister Kisan Samman Yojana (PM-KISAN)

    Arguments in favour

    • Social investment: Aid to the poor is seen as a wasteful expenditure. But low interest rates for corporates to get cheap loans or the ‘sop’ of cutting corporate taxes are never criticized.
    • Socialistic policy: This attitude comes from decades of operating within the dominant discourse of market capitalism.
    • Election manifesto: Proponents of such policies would argue that poll promises are essential for voters to know what the party would do if it comes to power and have the chance to weigh options.
    • Welfare: Economists opine that as long as any State has the capacity and ability to finance freebies then its fine; if not then freebies are the burden on economy.
    • Other wasteful expenditure: When the Centre gives incentives like free land to big companies and announce multi-year tax holidays, questions are not asked as to where the money will come from.

    Conclusion

    • There is nothing wrong in having a policy-led elaborate social security programme that seeks to help the poor get out of poverty.
    • But such a programme needs well thought out preparation and cannot be conjured up just before an election.

     

    Also read:

    [Sansad TV] Mudda Aapla: Culture of Freebies

     

     

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  • Jharkhand CM may face disqualification

    Jharkhand CM’s chair remains uncertain as the Election Commission (EC) is understood to have conveyed its decision in an office-of-profit complaint against him to the Governor.

    Why in news?

    • Under Section 9A of the Representation of the People Act, 1951, the CM could face disqualification for entering into a government contract.
    • The Constitution of India does not define the Office of Profit. It has only mentioned it under Article 102 (1) and Article 191 (1).

    What is Office of Profit?

    • MPs and MLAs, as members of the legislature, hold the government accountable for its work.
    • The essence of disqualification is if legislators hold an ‘office of profit’ under the government, they might be susceptible to government influence, and may not discharge their constitutional mandate fairly.
    • The intent is that there should be no conflict between the duties and interests of an elected member.
    • Hence, the office of profit law simply seeks to enforce a basic feature of the Constitution- the principle of separation of power between the legislature and the executive.

    What governs the term?

    • At present, the Parliament (Prevention of Disqualification) Act, 1959, bars an MP, MLA or an MLC from holding any office of profit under the central or state government unless it is exempted.
    • However, it does not clearly define what constitutes an office of profit.
    • Legislators can face disqualification for holding such positions, which bring them financial or other benefits.
    • Under the provisions of Article 102 (1) and Article 191 (1) of the Constitution, an MP or an MLA (or an MLC) is barred from holding any office of profit under the Central or State government.

    An undefined term

    • The officials of the law ministry are of the view that defining an office of profit could lead to the filing of a number of cases with the Election Commission and the courts.
    • Also, once the definition is changed, one will also have to amend various provisions in the Constitution including Article 102 (1) (a) and Article 109 (1) (a) that deal with the office of profit.
    • It will have an overarching effect on all the other sections of the Constitution.

    Factors constituting an ‘office of profit’

    • The 1959 law does not clearly define what constitutes an office of profit but the definition has evolved over the years with interpretations made in various court judgments.
    • An office of profit has been interpreted to be a position that brings to the office-holder some financial gain, or advantage, or benefit. The amount of such profit is immaterial.
    • In 1964, the Supreme Court ruled that the test for determining whether a person holds an office of profit is the test of appointment.

    What is the ‘test of appointment’?

    Several factors are considered in this determination including factors such as:

    1. whether the government is the appointing authority,
    2. whether the government has the power to terminate the appointment,
    3. whether the government determines the remuneration,
    4. what is the source of remuneration, and
    5. the power that comes with the position.

     

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  • What is Floor Test?

    Bihar Chief Minister has won the floor test in the Assembly.

    What is a floor test?

    • A floor test is a measure to check whether the executive is enjoying the confidence of the legislature.
    • It is a constitutional mechanism under which a Chief Minister appointed by the Governor can be asked to prove majority on the floor of the Legislative Assembly of the state.

    How is it conducted?

    • As per the Constitution, the Chief Minister is appointed by the Governor of the state.
    • When a single party secures the majority of the seats in the house, the Governor appoints the leader of the party as the Chief Minister.
    • In case the majority is questioned, the leader of the party which claims majority has to move a vote of confidence and prove majority among those present and voting.
    • The Chief Minister has to resign if they fail to prove their majority in the house.
    • This happens both in the parliament and the state legislative assemblies.
    • In situations when there are differences within a coalition government, the Governor can ask the Chief Minister to prove majority in the house.

    Can a floor test be postponed?

    • The Supreme Court recently had given some respite to some rebel leaders in Maharashtra to respond to the disqualification notice issued by the Speaker.
    • Citing this as the reason, the original party leaders and loyalists have stated that it is ‘unlawful’ to initiate a floor test when the disqualification decision of the rebel leaders is pending.
    • However, the previous judgments of the Supreme Court had ruled that the floor test needs not to be deferred even if the decision to disqualify the members is pending.
    • In the 2020 Shivraj Singh Chouhan v/s Speaker case, the court had clarified the same.
    • Additionally, the top court had allowed the rebel leaders to skip the floor test during the political crisis in Karnataka in 2019.

    What is composite floor test?

    • There is another test, Composite Floor Test, which is conducted only when more than one person stakes claim to form the government.
    • When the majority is not clear, the governor might call for a special session to see who has the majority.
    • The majority is counted based on those present and voting. This can also be done through a voice vote where the member can respond orally or through division voting.
    • Some legislators may be absent or choose not to vote.
    • In division vote, voting can be done through electronic gadgets, ballots or slips.
    • The person who has the majority will form the government. In case of tie, the speaker can also cast his vote.

    Governors’ discretion

    • When no party gets a clear majority, the governor can use his discretion in the selection of chief ministerial candidate to prove the majority as soon as possible.

    Issues with the floor test

    • Sometimes ruling party MLAs are lured with rewards, political or otherwise.
    • Thus, the “floor test” becomes constitutionally immoral and unjust.
    • This will amount to circumventing the Tenth Schedule through engineered defections through the judicial process.

    Back2Basics: No Confidence Motion

    • The process is explained under rule 198 of the Lok Sabha.
    • Though there is no mention of the term ‘No confidence motion’ or ‘floor test’ in the Constitution, Articles 75 and 164 do mention that the executive both at the Centre and state is collectively responsible to their respective legislatures.
    • Any member from the Opposition can move the no-confidence motion against the ruling government.
    • The motion has to receive the backing of at least 50 members before it is accepted and subsequently.
    • A date for the discussion of the motion is announced by the Speaker, which has to be within 10 days from the date of acceptance.

     

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  • Constitution Bench to hear Delhi statehood plea

    A Constitution Bench led by Justice D.Y. Chandrachud will hear the legal battle between the Centre and the Government of Delhi for control over officials in the national capital.

    What is a Constitution Bench?

    • The constitution bench is the name given to the benches of the Supreme Court of India.
    • The Chief Justice of India has the power to constitute a Constitution Bench and refer cases to it.

    Constitution benches are set up when the following circumstances exist:

    1. Interpretation of the Constitution: Article 145(3) provides for the constitution of at least five judges of the court which sit to decide any case “involving a substantial question of law as to the interpretation” of the Constitution of India.
    2. President of India seeking SC’s opinion: When the President has sought the Supreme Court’s opinion on a question of fact or law under Article 143 of the Constitution. Article 143 of the Constitution provides for Advisory jurisdiction to the SC. As per the provision, the President has the power to address questions to the apex Court, which he deems important for public welfare.
    3. Conflicting Judgments: When two or more three-judge benches of the Supreme Court have delivered conflicting judgments on the same point of law, necessitating a definite understanding and interpretation of the law by a larger bench.
    • The Constitution benches are set up on ad hoc basis as and when the above-mentioned conditions exist.
    • Constitution benches have decided many of India’s best-known and most important Supreme Court cases, such as:
    1. K. Gopalan v. State of Madras (Preventive detention)
    2. Kesavananda Bharati v. State of Kerala (Basic structure doctrine) and
    3. Ashoka Kumar Thakur v. Union of India (OBC reservations) etc.

    Why in news now?

    • A 2018 Constitution bench decision interpreting Article 239AA had not dealt with an aspect having a bearing on the dispute over services, CJI agreed.
    • The proceedings have their genesis in the Delhi HC judgment of August 4, 2017, whereby it held that for the purposes of administration, the L-G was not bound by the aid and advice of the Council of Ministers in every matter.
    • On appeal, the SC on February 15, 2017, referred the matter to decide on the interpretation of Article 239AA.

    What is the 2018 Judgment all about?

    • By a majority decision in July, 2018, the Constitution bench upheld the respective powers of the state Assembly and the Parliament.
    • It said that while the CoM must communicate all decisions to the L-G, this does not mean that the L-G’s concurrence is required.
    • In case of a difference of opinion, the L-G can refer it to the President for a decision.
    • The L-G has no independent decision-making power but has to either act on the ‘aid and advice’ of the CoM or is bound to implement the decision of the President on a reference being made.
    • The bench, which limited itself to the interpretation of Article 239AA, left individual issues to be decided by regular benches.

    When power tussle began?

    • Subsequently in 2019, a two-judge bench of the SC dealt with some individual issues arising from the power tussle between the Centre and the NCT government.
    • It ruled that the Anti-Corruption Branch of the Delhi government cannot investigate corruption cases against central government officials.
    • The power to appoint commissions under the Commission of Inquiry Act, 1952, would be vested with the Centre and not the Delhi government, the judgment said.

    Issue over control of administrative services

    • The judges, however, differed on who should have control over administrative services.
    • This was challenged again in the SC where the Centre contended that the two judges could not take a decision on the question.
    • The 2018 Constitution bench judgment had not interpreted the expression “insofar as any such matter as applicable to Union Territories” appearing in Article 239AA.
    • The Centre has urged SC CJI Ramana to refer the matter to a five-judge Constitution bench so that the question of law can be settled before the dispute over who has control over services can be looked into.

    Article 239AA of the Indian Constitution

    • Article 239AA granted Special Status to Delhi among Union Territories (UTs) in the year 1991 through the 69th Constitutional Amendment.
    • It provided a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers.
    • That’s when Delhi was named as the National Capital Region (NCT) of Delhi.
    • As per this article – Public Order, Police & Land in NCT of Delhi fall within the domain and control of Central Government which shall have the power to make laws on these matters.
    • For remaining matters of State List or Concurrent List, in so far as any such matter is applicable to UTs, the Legislative Assembly shall have the power to make laws for NCT of Delhi.

     

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  • Kashmir Voters’ List Upgrade to include Non-Locals

    Kashmir Voters’ List Upgrade to include Non-Locals

    Recently the J&K Chief Electoral Officer (CEO) announced that anyone “who is living ordinarily in J&K” can avail the opportunity to get enlisted as a voter in the Union Territory in accordance with the provisions of the Representation of the People Act.

    Why in news?

    • Many people who were not enlisted as voters in the erstwhile State of J&K are now eligible to vote after the reading down of Article 370 on August 5, 2019.
    • The Election Commission of India (ECI) was expecting an addition of 20-25 lakh new voters in the final list in J&K.
    • This has created furore among the out-streamed politicians of the erstwhile state.

    What did the EC announce?

    • There is no need to have a domicile certificate of J&K to become a voter.
    • An employee, a student, a labourer or anyone from outside who is living ordinarily in J&K can enlist his or her name in the voting list.
    • Around 25 lakh new voters are expected to be enrolled in J&K, which has 76 lakh voters on the list. The projected 18-plus population of J&K was around 98 lakh.
    • After the abrogation of special provisions of Article 370, the Representation of the People Act 1950 and 1951 is applicable in J&K, which allows ordinarily residing persons to get registered in the electoral rolls of J&K.

    New Voters in J&K

    • Armed forces posted in J&K could also register as voters and could possibly participate in the first ever Assembly polls in the youngest Union Territory (UT) of the country.
    • The existing electoral roll is being mapped into the newly delimited Assembly constituencies as per the Delimitation Commission’s final order made applicable by the Union Law Ministry.

    Why are electoral rolls being revised?

    • The ECI is working on fresh electoral rolls in J&K after the J&K Delimitation Commission carved out seven new Assembly constituencies in the UT earlier this year.
    • The Delimitation Commission has re-drawn many constituencies and fresh electoral rolls are essential to prepare the ground for any announcement of elections in J&K.
    • The last Assembly elections took place long back in 2014.
    • In a latest move, the ECI has decided that it will also include any person who has attained the age of 18 years on or before October 1, 2022 in the fresh electoral rolls.
    • The final electoral roll would be published in November.

    Why such move?

    • Prior to August 5, 2019 when J&K had special constitutional powers, the Assembly electoral rolls in the State were drawn up according to the separate J&K Representation of the People Act 1957.
    • Therein only permanent residents of J&K were eligible to get registered in the Assembly rolls.
    • To get voting rights, Permanent Resident Certificate and domicile certificates had to be shown.
    • Several lakh residents from West Pakistan and Pakistan Occupied Kashmir, who had migrated to J&K and were living there for decades,
    • They had no voting rights in Assembly elections till August 5, 2019 but were able to vote in the parliamentary elections.

    Why has the ECI announcement caused a furore?

    • All pseudo liberal and fundamentalist political parties in J&K have reacted sharply to the ECI announcement.
    • J&K’s main regional parties also called Gupkar parties have expressed concerns that the move will open the floodgates and turn locals into an electoral minority.
    • Separatists expressed concern that there was a plan to bring 25 lakh non-locals and make them eligible to cast their votes in the next J&K elections.

     

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  • Need of robust Justice delivery

    Context

    • Over 6,000 Signatories Demand To Reverse Bilkis Bano Convicts’ Release.

    Why in news?

    • Eleven convicts, sentenced to life imprisonment, released from Godhra sub-jail on August 15 after the Gujarat government allowed their release under its remission policy. They had completed more than 15 years in jail.

    What is the issue?

    • Bilkis Bano was 21-years-old and five months pregnant when she was gang-raped while fleeing the violence that broke out after the Godhra train burning. Among those killed were her 3-year-old daughter.

    What is remission?

    • The duration of the sentence announced by the court can be cut short under special circumstances while the nature of the sentence remains the same, depending upon the nature of the crime.

    Indian Judiciary: A Backgrounder

    • Saviour of democracy: It speaks truth to political power, upholds the rights of citizens, mediates between Centre-state conflicts, provides justice to the rich and poor alike, and on several momentous occasions, saved democracy itself.
    • Visible gaps: Despite its achievements, a gap between the ideal and reality has been becoming clear over the years.
    • Slow in speed: The justice delivery is slow, the appointment of judges is mired in controversy, disciplinary mechanisms scarcely work, hierarchy rather than merit is preferred, women are severely under-represented, and constitutional matters often languish in the Supreme Court for years.

    What led to under-performance of Indian Judiciary?

    • Population explosion
    • Litigation explosion
    • Hasty and imperfect drafting of legislation
    • Plurality and accumulation of appeals (Multiple appeals for the same issue)

    Challenges to the judicial system

    • Lack of infrastructure of courts
    • High vacancy of judges in the district judiciary
    • Pendency of Cases
    • Ineffective planning in the functioning of the courts

    Judicial initiative

    • The CJI has pitched to set up a National Judicial Infrastructure Corporation (NJIC) to develop judicial infrastructure in trial courts.
    • He indicated a substantial gap in infrastructure and availability of basic amenities in the lower judiciary.

    Enrich your mains answer with this

    Finland’s criminal justice system was voted the world’s best.

    • Under the Constitution of Finland, everyone is entitled to have their case heard by a court or an authority appropriately and without undue delay. This is achieved through the judicial system of Finland.

    Dynamic suggestions

    • Creating NJIC: It will bring a revolutionary change in the judicial functioning provided the proposed body is given financial and executive powers to operate independently of the Union and the State governments.
    • Appointment reforms: There are many experts who advocate the need to appoint more judges with unquestionable transparency in such appointments.
    • Creating All Indian Judiciary Services: It would be a landmark move to create a pan-India Service that would result in a wide pool of qualified and committed judges entering the system.
    • Technology infusion: The ethical and responsible use of AI and ML for the advancement of efficiency-enhancing can be increasingly embedded in legal and judicial processes. Ex. SUPACE.

    Way forward

    • It is time for courts to wake up from their colonial stupor and face the practical realities of Indian society.
    • Rules and procedures of justice delivery should be made simple.
    • The ordinary, poor, and rural Indian should not be scared of judges or the courts.

    Conclusion

    • India’s capacity to deliver justice has serious deficits with under-capacity and gender imbalance plaguing police, prisons and the judiciary and fund crunch affecting state services like free-legal aid. So there is urgent need of National Judicial Infrastructure Authorityfor the standardization and improvement of judicial infrastructure and robust justice delivery.

    Mains question

    Q. Do you think there are serious gaps in our judicial infrastructure and justice delivery? Identify these gaps and provide some dynamic suggestions from your end in the context of Bilkis Bano verdict.

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  • fiscal federalism in India

    Context

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

    Centralisation of fiscal powers: A background

    • Jawaharlal Nehru believed that socio-economic inequities could be addressed through the planning process.
    • A degree of centralisation in fiscal power was required to address the concerns of socio-economic and regional disparities.
    • As a result asymmetric federalism is inherent to the Indian Constitution.
    • India was never truly federal — it was a ‘holding together federalism’ in contrast to the ‘coming together federalism,’ in which smaller independent entities come together to form a federation (as in the United States of America).
    • In fact, the Government of India Act 1935 was more federal in nature than the Constitution adopted on January 26, 1950 as the first offered more power to its provincial governments.
    • Historically, India’s fiscal transfer worked through two pillars, i.e., the Planning Commission and the Finance Commission. 
    • But the waning of planning since the 1990s, and its abolition in 2014, led to the Finance Commission becoming a major means of fiscal transfer as the commission itself broadened its scope of sharing all taxes since 2000 from its original design of just two taxes — income tax and Union excise duties.
    •  Today, the Finance Commission became a politicised institution with arbitrariness and inherent bias towards the Union government.
    • Tamil Nadu government constituted a committee under Justice P.V. Rajamannar in 1969, the first of its kind by a State government, to look at Centre-State fiscal relations and recommend more transfers and taxation powers for regional governments.

    Declining fiscal capacity of the states

    • 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.
    • 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.
    • While the expenditure of the States has been shooting up, their revenues did not.
    • 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.

    Implications of fiscal centralisation in India

    • Use of non-divisive cess: Even the increased share of devolution, mooted by the Fourteenth Finance Commission, from 32% to 42%, was subverted by raising non-divisive cess and surcharges that go directly into the Union kitty.
    •  This non-divisive pool in the Centre’s gross tax revenues shot up to 15.7% in 2020 from 9.43% in 2012, shrinking the divisible pool of resources for transfers to 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.
    • They spend about 25% to 40% as matching grants at the expense of their priorities.
    • These schemes, driven by the one-size-fits-all approach, are given precedence over State schemes, undermining the electorally mandated democratic politics of States.
    • In fact, it is the schemes conceived by States that have proved to be beneficial to the people and that have contributed to social development.
    • Driven by democratic impulses, States have been successful in innovating schemes that were adopted at the national level.
    • The diversion of a State’s own funds to centrally sponsored schemes, thereby depleting resources for its own schemes, violates constitutional provision.
    • Deepening inequality: The World Inequality Report estimates ‘that the ratio of private wealth to national income increased from 290% in 1980 to 555% in 2020, one of the fastest such increases in the world.
    • The poorest half of the population has less than 6% of the wealth while the top 10% nearly grab two-third of it’.
    • India’s tax-GDP ratio has been one of the lowest in the world — 17% of which is well below the average ratios of emerging market economies and OECD countries’ about 21% and 34%, respectively.
    • Its income tax base has been very narrow.
    • Indirect tax still accounts for about 56% of total taxes.
    • Instead of strengthening direct taxation, the Union government slashed corporate tax from 35% to 25% in 2019 and went on to monetise its public sector assets to finance infrastructure.

    Conclusion

    In sum, India’s fiscal federalism driven by political centralisation has deepened socio-economic inequality, belying the dreams of the founding fathers who saw a cure for such inequities in planning. It has not altered inter-state disparities either.

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  • Justice Lalit appointed 49th CJI

    Justice Uday Umesh Lalit was appointed the 49th Chief Justice of India (CJI) after President Droupadi Murmu signed his warrant of appointment.

    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. 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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  • The Portuguese Civil Code of 1867 is a colonial burden on Goa

    Context

    The Portuguese Civil Code of 1867, the so-called “common civil code” of Goa, is in the news again. A 28-member parliamentary standing committee recently visited the state to study it in the context of the demand for a uniform civil code.

    Background

    • Long before the arrival of the British imperialists in India, the Portuguese had occupied certain territories in the coastal regions with its capital in Cochin, later shifted to Goa.
    • They did not interfere with the local customs relating to family relations and framed, in the mid-19th century, three separate codes of religion-based customary laws of Goa, Daman and Diu.
    • The three codes were formally enforced as the law by royal decrees issued by the King of Portugal.
    • The Portuguese Civil Code of 1867 was extended to Goa, Daman and Diu by a royal decree of November 18, 1869, declaring that the code would apply to the natives subject to the local usages and customs “so far as they are not inconsistent with morality or public order”.
    •  In 1910, the Portuguese parliament enacted two civil marriage and divorce decrees and, in 1946, a canonical marriage decree for Catholics.
    • All of these too were extended to Goa, Daman and Diu.
    • The family law applied by the Portuguese, both at home and in the occupied Indian territories, was thus not a uniform code but a loose conglomeration of civil and religious laws.

    After Indian independence

    • Fourteen years after the advent of Independence, Goa and its affiliated territories were liberated and turned into a Union Territory (UT) under central rule.
    •  The Goa, Daman and Diu Administration Act of 1962 declared that all laws in force in these territories before their liberation would continue to be in force “until amended or repealed by a competent legislature or other competent authority” (Section 5).
    • None of the pre-liberation family laws was, however, amended or repealed.
    • Nor was any central law on family rights, including the four Hindu law Acts of 1955-56, extended to any of the three territories.
    • In 1987, the Goa, Daman and Diu Reorganisation Act made Goa a full-fledged state with its own legislative assembly and left Daman and Diu as a UT.
    • Twenty-five years later, the Goa state legislature enacted the Succession, Special Notaries and Inventory Proceedings Act, amending certain provisions, mainly procedural, of the 155-year old civil code.
    • In 2019, the UT of Daman and Diu was merged with another such territory – Dadra and Nagar Haveli (also ruled in the past by Portugal) — to form a single UT under central rule.
    • As laid down in Section 17 of the unifying Act, this development did not in any way change the family law system prevailing in either of these places since their liberation from foreign rule.

    Need for uniform civil code

    • The law ministry has told the concerned standing committee of Parliament that the Portuguese civil code and its later amendments as in force in Goa may — if required — be duly reviewed.
    • Uniform civil code: What has been said now by the law ministry about Goa is in the context of implementing the constitutional directive of Article 44 for a uniform civil code for the citizens throughout the territory of India.
    • However, while the 21st Law Commission had already given its opinion against the feasibility and need of such a code at this juncture
    • In recent months, the ministry has told Parliament about its reference on this issue to the Law Commission.
    • There is no justification for retaining over a century-old archaic law, 75 years after the independence of India.
    • Hindu law Acts of 1955-56 governing four religious communities in the rest of the country needs to be extended to the same communities in Goa, Daman and Diu.

    Conclusion

    The ministry has now reportedly told the parliamentary committee that enacting a uniform civil code would be possible only when a “sizeable majority” of the people seeks such a change.

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