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Subject: Polity

  • All women have Right to Legal and Safe Abortion: Supreme Court

    The Supreme Court has held that all women, irrespective of their marital status, are entitled to safe and legal abortion till 24 weeks of pregnancy under the Medical Termination of Pregnancy (MTP) Act.

    A case for safe abortion

    • A Bench led by Justice D.Y. Chandrachud was hearing the appeal of a woman who wanted to abort her 24-week pregnancy after her relationship failed and her partner left her.
    • The lower court had taken an “unduly restrictive view” that her plea for a safe abortion was not covered under the Medical Termination of Pregnancy Act.
    • This was since the pregnancy arose from a consensual relationship outside wedlock.

    What was the last amendment?

    • The court noted that an amendment to the Act in 2021 had substituted the term ‘husband’ with ‘partner’, a clear signal that the law covered unmarried women within its ambit.

    Reiterating the live-in recognition

    • Chastising the lower court, the Bench said live-in relationships had already been recognised by the Supreme Court.
    • There were a significant number of people in social mainstream who see no wrong in engaging in pre-marital sex.
    • The law could not be used to quench “notions of social morality” and unduly interfere in their personal autonomy and bodily integrity.

    About Medical Termination of Pregnancy (MTP) Act

    • Abortion in India has been a legal right under various circumstances for the last 50 years since the introduction of the Medical Termination of Pregnancy (MTP) Act in 1971.
    • The Act was amended in 2003 to enable women’s access to safe and legal abortion services.
    • Abortion is covered 100% by the government’s public national health insurance funds, Ayushman Bharat and Employees’ State Insurance with the package rate for surgical abortion.

    The idea of terminating your pregnancy cannot originate by choice and is purely circumstantial. There are four situations under which a legal abortion is performed:

    1. If continuation of the pregnancy poses any risks to the life of the mother or mental health
    2. If the foetus has any severe abnormalities
    3. If pregnancy occurred as a result of failure of contraception (but this is only applicable to married women)
    4. If pregnancy is a result of sexual assault or rape

    The pregnancy can be terminated upto 24 weeks of gestational age after the opinion of two registered medical practitioners under these conditions —

    • If the woman is ​​either a survivor of sexual assault or rape or incest
    • If she is a minor
    • If her marital status has changed during the ongoing pregnancy (i.e. either widowhood or divorce)
    • If she has major physical disabilities or is mentally ill
    • On the grounds of foetal malformation incompatible with life or if the child is born, it would be seriously handicapped
    • If the woman is in humanitarian settings or disaster, or emergency situations as declared by the government

    These are the key changes that the Medical Termination of Pregnancy (Amendment) Act, 2021, has brought in:

    1. The gestation limit for abortions has been raised from the earlier ceiling of 20 weeks to 24 weeks, but only for special categories of pregnant women such as rape or incest survivors. But this termination would need the approval of two registered doctors.
    2. All pregnancies up to 20 weeks require one doctor’s approval. The earlier law, the MTP Act 1971, required one doctor’s approval for pregnancies upto 12 weeks and two doctors’ for pregnancies between 12 and 20 weeks.
    3. Women can now terminate unwanted pregnancies caused by contraceptive failure, regardless of their marital status. Earlier the law specified that only a “married woman and her husband” could do this.
    4. There is also no upper gestation limit for abortion in case of foetal disability if so decided by a medical board of specialist doctors, which state governments and union territories’ administrations would set up.

    Criticism of Abortion

    • Foetuses feel the pain: If the foetus is beyond 20 weeks of gestation, gynaecs assume that there will be pain caused to the foetus.
    • Abortions cause psychological damage: Young adult women who undergo abortion may be at increased risk for subsequent depression.
    • Abortions reduce the number of adoptable babies: Instead of having the option to abort, women should give their unwanted babies to people who cannot conceive. Single parenthood is also gaining popularity in the US.
    • Cases of selective abortion: Such cases based on physical and genetic abnormalities (eugenic termination) is overt discrimination.
    • Abortion as a form of contraception: It is immoral to kill an unborn child for convenience. Many women are using abortion as a contraceptive method.
    • Morality put to question: If women become pregnant, they should accept the responsibility that comes with producing a child. People need to take responsibility for their actions and accept the consequences.
    • Abortion promotes throwaway culture: The legalization of abortion sends a message that human life has little value and promotes the throwaway culture.

    Arguments in favour for Abortion Rights

    • Upholding individual conscience and decision-making:  The US Supreme Court has declared abortion to be a fundamental right guaranteed by the US Constitution.
    • Reproductive choice empowers women: The choice over when and whether to have children is central to a woman’s independence and ability to determine her future.
    • Foetal viability occurs post-birth:  Personhood begins after a foetus becomes “viable” (able to survive outside the womb) or after birth, not at conception. Abortion is the termination of a pregnancy, not a baby.
    • No proof of foetal pain: Most neuroscientists believe that the cortex is necessary for pain perception. The cortex does not become functional until at least the 26th week of a foetus’ development.
    • Preventing illegal abortions: Access to legal, professionally-performed abortions reduces maternal injury and death caused by unsafe, illegal abortions.
    • Mother’s health: Modern abortion procedures are safe and do not cause lasting health issues such as cancer and infertility.
    • Child’s health: Abortion gives pregnant women the option to choose not to bring fetuses with profound abnormalities to full term.
    • Prevents women’s exclusion: Women who are denied abortions are more likely to become unemployed, to be on public welfare, to be below the poverty line, and to become victims of domestic violence.
    • Reproductive choice protects women from financial disadvantage: Many women who choose abortion don’t have the financial resources to support a child.
    • Justified means of population control: Many defends abortion as a way to curb overpopulation. Malnutrition, starvation, poverty, lack of medical and educational services, pollution, underdevelopment, and conflict over resources are all consequences of overpopulation.

    Conclusion

    • Hence it is now established that the right to abortion is a legal right of all women.

     

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  • Domicile based job quota laws in States

    The Karnataka government recently tabled The Kannada Language Comprehensive Development Bill which gives preference to Kannadigas in government jobs and also provides for a reservation to locals in private jobs generated in the state.

    What does the Karnataka legislation envisage?

    • Apart from ensuring job guarantee to Kannada speakers, the Bill pushes for the use of Kannada in institutes of higher learning and for sops to industries that employ locals.
    • Features highlighted in the Bill include reservation in higher, technical and professional education to those who studied in Kannada medium schools.
    • It seeks introduction of Kannada as essential language for seeking employment in the state government.
    • Also, industries will be entitled to concessions, tax rebates and deferment of taxes if they provide reservation for Kannadigas, as per the state’s industrial policy.

    What is Quota for Locals?

    Ans. Constitutional provision for Equal Treatment

    • Article 16 of the Constitution guarantees equal treatment under the law in matters of public employment. It prohibits the state from discriminating on grounds of place of birth or residence.
    • Article 16(2) states that “no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State”.
    • The provision is supplemented by the other clauses in the Constitution that guarantee equality.
    • However, Article 16(3) of the Constitution provides an exception by saying that Parliament may make a law “prescribing” a requirement of residence for jobs in a particular state.
    • This power vests solely in the Parliament, not state legislatures.

    Why does the Constitution prohibit reservation based on domicile?

    • When the Constitution came into force, India turned itself into one nation from a geographical unit of individual principalities and the idea of the universality of Indian citizenship took root.
    • India has single citizenship, and it gives citizens the liberty to move around freely in any part of the country.
    • Hence the requirement of a place of birth or residence cannot be qualification for granting public employment in any state.

    But are reservations not granted on other grounds such as caste?

    • Equality enshrined in the Constitution is not mathematical equality and does not mean all citizens will be treated alike without any distinction.
    • To this effect, the Constitution underlines two distinct aspects which together form the essence of equality law:
    1. Non-discrimination among equals, and
    2. Affirmative action to equalize the unequal

    Supreme Court rulings on quota for locals

    • The Supreme Court has ruled against reservation based on place of birth or residence.
    • In 1984, ruling in Dr Pradeep Jain v Union of India, the issue of legislation for “sons of the soil” was discussed.
    • The court expressed an opinion that such policies would be unconstitutional but did not expressly rule on it as the case was on different aspects of the right to equality.
    • In a subsequent ruling in Sunanda Reddy v State of Andhra Pradesh (1995), the Supreme Court affirmed the observation in 1984 ruling to strike down a state government policy that gave 5% extra weightage to candidates.
    • In 2002, the Supreme Court invalidated appointment of government teachers in Rajasthan in which the state selection board gave preference to “applicants belonging to the district or the rural areas of the district concerned”.
    • In 2019, the Allahabad HC struck down a recruitment notification by the UP PSC which prescribed preference for women who are “original residents” of the UP alone.

    Why it is a bad idea?

    • Against Equality as well as meritocracy: It goes against the Constitution of India. In fact, it violates several fundamental rights, such as freedom to move anywhere, the right not to be discriminated on the basis of place of birth, the right to be treated equally before laws and the right to pursue one’s livelihood.
    • Migration criteria not justified: The actual data on inter-State migration shows that inter-State migration is relatively low in India. Migration often bring skills, motivation, energy which may be in short supply or lacking locally.
    • Free movement of labour: A more analytical aspect to highlight is that free movement of labour partly compensates for the uneven economic progress of different States. The idea also goes against the established fact that migration of labour is good for the economy.
    • Un-ease of doing business: Local reservation in the private sector may not be the ideal solution to tackle the unemployment crisis. In fact, it can deter the corporate sector from investing in states that come up with such a rule.
    • Scapegoating the private sector: What distinguishes the private sector from the public sector is the inherent competition and a hunger for improvement. In such a scenario, chief ministers should do well to engage with the private sector in a much more holistic manner, and not burden it with unfeasible rules.
    • MSMEs to be hit harder: MSMEs could be the hardest hit. They do not have the necessary capital to relocate and many studies have shown that more than 50 per cent of employees are not residents of the state.

    Arguments in favour of quota in private

    • Avoiding encroachments: Often the privileged castes (or groups) use nefarious arguments to protect their interests.
    • Foul argument of merit: Reservations once accepted in the constitutional framework are not a charity that is to be kept away from the ‘meritocracy’ of ‘private’ operations.
    • Ensuring equal opportunity: Like all other constitutional guarantees, one may feel the necessity to get ensured of equal opportunity in all spaces.
    • Preventing exclusion: Giving preference and quotas for socially and educationally deprived sections in the private space is, therefore, in keeping with this fundamental tenet.

    Conclusion

    • The politics of identity and polarization on region/religious lines seems inadequate for the elections.
    • The philosophy and pragmatism of universal excellence through equality of opportunity for education and advancement across the nation is part of our founding faith and constitutional creed.
    • Clearly, this is not the appropriate domain of being “vocal for local”.
    • Although some reservations may still be necessary for the socio-political condition in India, reservation on the basis of domicile or residence within a State would be highly discriminatory.
    • It is more likely that such politically motivated steps would be overturned by the judiciary as has been done several times in the past.

     

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  • Democracy Report 2022

    democracyContext

    • G7 nations and partner countries including India recently signed “2022 Resilient democracies statement”-We, the Leaders of Germany, Argentina, Canada, France, India, Indonesia, Italy, Japan, Senegal, South Africa, the United Kingdom, the United States of America, and the European Union, affirm our commitment to strengthening the resilience of our democracies and to working towards equitable, inclusive and sustainable solutions to global challenges, including climate change and the COVID-19 pandemic, and reaffirm our commitment to the rules-based international order.

    How we define Democracy?

    • “Government of the people, by the people and for the people” the words used by Abraham Lincoln in the year 1863 while talking about democracy.

    Purpose of democracy

    • Cornerstones of democracy include freedom of assembly, association, property rights, freedom of religion and speech, inclusiveness and equality, citizenship, consent of the governed, voting rights, freedom from unwarranted governmental deprivation of the right to life and liberty, and minority rights.

    Democracy Report 2022

    • The study, titled ‘Democracy Report 2022: Autocratisation Changing Nature?’ states that more than twice as many countries are undergoing Autocratisation as are witnessing democratization.
    • The conceptual scheme takes into account not only the electoral dimension (free and fair elections) but also the liberal principle that democracy must protect “individual and minority rights”
    • The V-Dem report classifies countries into four regime types based on their score in the Liberal Democratic Index (LDI): a)Liberal Democracy b)Electoral Democracy c)Electoral Autocracy and d)Closed Autocracy

    democracyWhere do the Reports and Indices put India?

    • Sweden based Sweden-based V-Dem Institute was harsher in its latest report on democracy. It said India had become an “electoral autocracy”
    • US-based non-profit Freedom House downgraded India from a free democracy to a “partially free democracy”.
    • India, described as a “flawed democracy”, slipped two places to 53rd position in the latest Democracy Index published by The Economist Intelligence Unit.

    Status of Supporters of Democracy

    • Decolonised African Countries:
    • The number of African countries that have adopted democratic systems of government has grown since decolonisation, the collapse of communism and the ending of a number of civil wars.
    • Some countries, such as Ghana, are seen as resilient democracies, while for others the democratic transition is more fragile, after months of pro-democracy protests in 2019 in Sudan, a civilian-led transitional government is now paving the way for democracy after decades of military rule.
    • India as example:
    • India is the world’s largest democracy. India is staying as one unit despite having vast no of cultures, languages and religions. This is possible because of the democracy in India.
    • Minorities and disadvantaged sections are represented in parliament which enabled inclusive growth.
    • When India got independence, its economy was in shambles. Extreme poverty, unemployment, food insecurity were the major problems before Indian government. But India’s democratic constitution successfully balanced development and welfare of the country.
    • Now, India is one of the fastest growing economies in the world.

    What critics arguing?

    • Democracy in crisis: Democracy is more in crisis than ever before, with the onset of centralisation of power, with a foreign policy defying public opinion, with the media centralised, and with corporate control of the economy tighter than ever.
    • Increasing polarity: Threatening world order is emerging, which seeks to abrogate all individual rights and divide us along the extremist polarities that we thought had been neutralised.
    • Global Crisis: We move into this new stage of conflict carrying the risk of a nuclear tragedy, further exacerbated by the collective buttressing of a global crisis of the novel coronavirus pandemic, uncontrollable ecological disasters, and food and water deficiency.
    • Populism: Blatant fascist leanings of the so-called “democracies”, and escalating hunger and disease in Africa and other parts of the under-developed world give enough evidence that democracy faces serious issues of populism.
    • Other global problems: Growing economic discrimination, overpopulation and environmental degradation, Misgivings about moral progress, about mutual understanding, exacerbate the dismal situation that faces humanity.

    democracyWhat can be done to strengthen the democracies further?

    • Strengthening public support: To protect freedom domestically and build support for a foreign policy that protects democratic rights and values abroad, it is essential to foster a stronger public understanding of democratic principles, especially among young people. civic education is necessary.
    • Rule of law: In order to maintain trust in public institutions, the principles of legality, legal certainty and prohibition of arbitrariness of the executive powers, judicial independence, impartiality, and equality before the law need to be respected.
    • Individual rights: Democracy entails the right of individuals to participate in and influence the development of society, with free and fair elections at its core. Without an active turnout in elections and proper mechanisms for participation, the essence of democracy can be lost.
    • Free speech: Free speech guard the freedom of expression and opinion, and affirmation of commitment to the very idea of democracy and a move towards opposing oppression and violence

    Conclusion

    • Democracy is always a work in progress. The key ingredients of democracy are effective and accountable institutions, and leadership. Institutions build resilience by embedding norms and standards and bridging periods of weak leadership.

    Mains Question

    Q.Do you think Democracy is the best solution to tackle the growing fault lines between the communities? What makes India as the best example of Democracy to the world? Discuss.

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  • In news: Attorney-General (A-G) of India

    Attorney General of India (AGI)

    • The AGI is the Indian government’s chief legal advisor and is a primary lawyer in the Supreme Court of India.
    • They can be said to be the advocate from the government’s side.
    • They are appointed by the President of India on the advice of Union Cabinet under Article 76(1) of the Constitution and holds office during the pleasure of the President.
    • They must be a person qualified to be appointed as a Judge of the Supreme Court ( i.e. a judge of some high court for five years or an advocate of some high court for ten years or an eminent jurist, in the opinion of the President and must be a citizen of India.).

    Functions and duties

    • The AGI is necessary for advising the Government of India on legal matters referred to them.
    • They also perform other legal duties assigned to them by the President.
    • The AGI has the right of audience in all Courts in India as well as the right to participate in the proceedings of the Parliament, though not to vote.
    • The AGI appears on behalf of the Government of India in all cases (including suits, appeals and other proceedings) in the Supreme Court in which GoI is concerned.
    • They also represent the Government of India in any reference made by the President to the Supreme Court under Article 143 of the Constitution.
    • The AG is assisted by a Solicitor General and four Additional Solicitors General.

    Powers of AG

    • The AG can accept briefs but cannot appear against the Government.
    • They cannot defend an accused in criminal proceedings and accept the directorship of a company without the permission of the Government.
    • The AG is to be consulted only in legal matters of real importance and only after the Ministry of Law has been consulted.
    • All references to the AG are made by the Law Ministry.

    Term of Attorney General’s office

    • There is no fixed term for the Attorney General of India. The Constitution mentions no specified tenure of Attorney General. Similarly, the Constitution also does not mention the procedure and ground of his removal.

    Facts about his office:

    • He can be removed by the President at any time.
    • He can quit by submitting his resignation only to the President.
    • Since he is appointed by the President on the advice of the Council of Ministers, conventionally he is removed when the council is dissolved or replaced.

    Limitations to his powers

    The AG:

    • should not advise or hold a brief against the Government of India
    • should not defend accused persons in criminal cases without the permission of the government of India
    • should not accept appointment as a director in any company without the permission of the government

    Office of AG across the world

    • Unlike the Attorney General of the United States, the AGI does not have any executive authority.
    • Those functions are performed by the Law Minister of India.
    • Also, the AG is not a government servant and is not debarred from private legal practice.

     

     

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  • Supreme Court’s basic structure doctrine in a new context

    basic structureContext

    • The basic structure doctrine constitutes a high watermark in the assertion of the Supreme Court’s judicial power in the teeth of a determined majoritarian regime.

    What is basic structure of Constitution?

    • The basic structure doctrine is one of the fundamental judicial principles connected with the Indian Constitution. The doctrine of the basic structure holds that there is a basic structure to the Indian Constitution, and the Parliament of India cannot amend the basic features.

    What is the significance of the basic structure in the Constitution of India?

    • The doctrine of basic structure is nothing but a judicial innovation to ensure that the power of amendment is not misused by Parliament. The idea is that the basic features of the Constitution of India should not be altered to an extent that the identity of the Constitution is lost in the process.08-Dec-2021

    Background

    • Courts are empowered under our Constitution to invalidate not only executive orders, but also legislative enactments that violate any part of the Fundamental Rights guaranteed in Part III of the Constitution (Bill of Rights).
    • But as to whether they are also empowered to adjudicate on the validity of constitutional amendments passed with the requisite special majority and following the procedure prescribed in Article 368 the Constitution is silent.

    basic structureHistorical developments on evolution of basic structure doctrine

    • Constitution provided a mechanism for parliament to amend the constitution in the form of article 368 but the nature and scope of this amending power was questioned in Supreme Court on multiple occasions. Supreme Court gave a series of judgement which ultimately culminated in probably the most landmark judgement Basic structure doctrine judgement.
    • Shankari Prasad Case
    • Sajjan Singh Case
    • Golakh Nath Case
    • Kesvananda Bharati Case
    • Minerva Mills case
    • I.R. Koelhi

    Constitutional Provisions

    1. 1st amendment and 9th schedule
    2. 24th amendment
    3. 42nd amendment

     

    His holiness, Kesavananda bharati, challenged before the supreme court, the validity of 29th CAA which inserted some laws in 9th schedule and affected property of his Hindu Mutt.

    What else was at stake?

    1. Supreme Court (R. C. Cooper case) had struck down bank nationalization act of 1969 which had nationalized 14 major banks for illusory compensation though it conceded parliament’s right to nationalise banks in national interest.
    2. Supreme Court had struck down abolition of privy purses which was a betrayal of solemn promise to erstwhile kings by Sardar Patel.

    Supreme Court could do all this as it had held in 1967 in Golaknath case that fundamental rights could not be abridged.

    Before returning back to Kesavananda, Let’s take a look at the relevant provisions of the constitution and Supreme Court interpretation of the same.

    • Art 13(2) – Any LAW abridging fundamental rights mentioned in part 3 shall be null and void to the extent of contravention
    • Art 368 -Procedure to amend the constitution.
    • Art 19(f) – freedom to acquire hold on and dispose off property.
    • Art 31 – right to property

    Both the rights were subject to reasonable restriction in public interest and restriction were subject to judicial review.

    Soon after the coming into force of the constitution, states enacted land reform acts #Zamindars challenged them. #Patna high court declared Bihar act as unconstitutional for violating right to property #interim parliament passed 1st CAA.

    1. ART 31B created 9th schedule. Laws inserted under it by constitutional amendment were immune to judicial review.

    Other provisions not imp for this article but imp for exams –

    1. Reasonable restrictions against freedom of expression under art 19.
    2. To nullify judgment in State of Madras v. Champakam Dorairajan and giving effect to art 46 (promoting educational and economic interests of weaker sections) amplified article 15 (3)

    Zamindars didn’t like it, not one bit. And here comes the 1st salvo

    Shankari Prasad v Union of India

    Challenged 1st CAA. What was the court’s judgment?

    1. Difference b/w constituent power and ordinary legislative power i.e. amendment not law for the purpose of article 13
    2. art 13 and 368 in conflict # apply DOCTRINE OF HARMONIOUS CONSTRUCTION # ART 13 not applicable to art 368

    Govt 1-0 Zamindars

    Govt passed 17th amendment and inserted more laws under 9th schedule ‘

    Zamindars fired another salvo-

    Sajjan Singh vs state of rajasthan

    Supreme Court sang Shankari prasad song again

    Govt 2-0 jamindars

    But Justice Mudholkar was of the view that the every Constitution has certain features which are basic in nature and those features cannot be changed.

    2 minority judgements…. utter confusion. And you can see seeds of basic structure were sown here.

    Zamindars fired 3rd salvo

    Golaknath v. State of Punjab

    11 judge bench overturned earlier 2 verdicts by a slender majority of 6-5

    Really? What was the logic given here?

    1. Nothing to suggest constituent power to be separate from legislative power and even if distinct, amending power not same as constituent power which is given only to constituent assembly i.e. amendment is law and subject to article 13
    2. Fundamental rights so sacrosanct and transcendental that they cannot be abridged even if whole parliament unanimously decided to abridge them.

    But it validated all previous land reform acts as nullifying them would create utter confusion

    Govt angry – Zamindars angry

    New landlords happy.

    Loss – loss to defendants as well as petitioner.

    Madam Indira was in power and she did not like this. Not one bit.

    Along came 24th amendment to neutralize GOLAKNATH JUDGEMENT

    1. Art 13 inapplicable to art 368
    2. Art 368 provided powers as well as procedure to amend the constitution
    3. Parliament by way of addition, variation or repeal can amend any provision of constitution
    4. President shall give assent to CA bills ( VERY VERY IMP FOR PRELIMS )

    But madam Indira wouldn’t just stop here as Cooper judgment (Bank nationalization ) also had to be neutralized.

    Smarting from this setback, Madam Indira (the parliament, herself) passed 24th CAA to neutralise GOLAKNATH judgement. But there was also a small matter of reversing Copper judgment in bank nationalisation case so parliament passed 25th CAA.

    1. Art 19f delinked from 31, in effect parliament deciding compensation amount payable instead of courts.
    2. Art 31c  -inserted under which – art 39b and c, most socialist of DPSPs (equitable distribution and prevention of concentration of wealth respectively) precede over 7 freedoms (art 19 ), equality (14), property (31)
    3. Parliament’s power to determine if policy is to give effect to 39b and c not subject to judicial review.

    29th CAA had put Kerala land reform act under 9th schedule and his holiness challenged the provisions and all hell broke loose.

     

    Now the 4th salvo

    basic structureKesvanada Bharati Case

    A 13 judge bench is constituted and what does it do!

    1. Overturned Golaknath i.e. amendment not law, fundamental rights amendable, no implied limit under art 368 i.e. CAA 24 constitutional
    2. Art 25 invalid to the extent it takes away judicial review i.e. 39 b and c above 14, 19 and 31 but subject to judicial review

    Most imp decision of all by slimmest of all 7-6 majority stated Parliament can amend any provision of the Constitution but the basic structure should not be destroyed, damaged or abrogated.

    What’s the logic?

    1. Expression amendment did not encompass defacing the constitution such that it lost its identity.
    2. In the garb of amendment parliament can not rewrite the constitution.

    Court gave relief to govt but reserved for itself power to review all amendment not just those that violate fundamental rights.

    Aftermath

    Indira Gandhi didn’t like the judgement one  bit. She (via the president) superseded 3 judges to appoint justice A.N. Ray as CJI.

    Knives had been drawn and the battle was gonna be very bloody –

    • Navnirman movement of JP (Jayprakash) had gathered steam, Indira was on the back foot and along came the judgement of Allahabad High Court convicting Indira of corrupt electoral practices. Election was declared null and void and  6 years ban to contest election was imposed on her.
    • Supreme Court stayed it and allowed her to remain PM but not to draw salary or speak or vote in parliament.
    • Darkest chapter in democracy’ 21 month emergency was declared on 25th June 1975 without even consulting cabinet (44th amendment made it mandatory for the president to have written advice of cabinet to declare emergency)

    Indira Gandhi wasn’t to sit quiet.

    CAA 39th – election of president, VP, PM and speaker beyond judicial review

    Clownish Rajnarayan challenged the CAA 39.

    Indira Gandhi v/s Raj Narain Case

    For the 1st time Supreme Court applied basic structure doctrine and considered free and fair election and rule of law to be part of basic structure. #amending act invalidated.

    Note here that 4 of the 5 judges on the bench had given dissenting judgment in Bharati case but still applied the same doctrine for Supreme Court judgment becomes law until overruled by bigger bench (art 141).

    Then how did Indira continue to be prime minister and contest election again and not get banned for 6 years?

    Supreme court accepted retrospective amendment to electoral law i.e. electoral malpractice of Indira was no longer a corrupt practice.

    Find out for fun the charges against Mrs. Gandhi for which she was convicted and what a popular British magazine had to say about the judgement.

    Along came the mini constitution i.e 42nd amendment act TO ELIMINATE IMPEDIMENTS TO THE GROWTH OF THE CONSTITUTION –

    1. PART 4a fundamental duties
    2. Socialist,secular and integrity word to preamble
    3. New DPSPs were added

    And for the purpose of this article amendment to article 368 nullifying basic structure doctrine by adding amendments can’t be challenged in courts and parliament possessing unlimited power of amendment

    1. All DPSPs to take precedence over all fundamental rights not just 39b and 39c.

    And Minerva Textile mills of Karnataka fired the 5th and the last salvo

    Minerva Mills v Union of India

    SC unanimously struck down amendment to article 368 holding limited amending power and judicial review to be part of basic structure.

    Court held that constitution is founded on the bedrock of balance b/w FRs and DPSPs. Goals set out by DPSPs have to be achieved without abrogation of means provided by FRs.

    What’s the logic?

    If a donee was vested with limited power, it could not be exercised to control that very power power and convert into unlimited one.

    Or

    If a genie grants u 3 wishes, it is understood u can not, as one of the wish, ask for unlimited number of wishes!

    Janta govt comes to power and 44th CAA deletes art 31 (b) right to property and 19 (f) freedom to acquire, hold and dispose of property as they were not considered part of basic structure

    Right to property now a constitutional right under art 300A.

    9th schedule and judicial review

    I.R.Coelho vs state of TN

    Supreme Court held that acts placed under 9th schedule after basic structure subject would be subject to judicial review to the extent of those acts violating basic structure of constitution.

    Impact of basic structure doctrine.

    It certainly saved Indian democracy from degenerating into authoritarian regime during those testing times but it has also given immense untold unbridled power to Supreme Court and made it the most powerful court in the world.

    As we would later see in the NJAC Verdict (let’s call it 4th judges case), Supreme Court applied this doctrine, many would say for wrong reasons to strike down the act and kept for itself the power to appoint brother judges. In the original constitution only fetters on the power of parliament was art 13.

    Relevance –  It was delivered at the time of single party rule both at the centre and most of the states. In the era of coalition politics no govt is going to wield so much power to destroy the constitution and then there is ever present danger of tyranny of unelected.

    But only legitimate way to overturn the verdict would be a 15 judge bench so don’t hold your breath for that.

    Now is the time for some thought questions

    #1. Consider these 2 statements –

    1. Any LAW that is ordinary law violating provisions of constitution would be declared null and void to the extent of contravention.
    2. Any LAW violating art 13 would be declared null and void

    Both statements are true…..If amendments were not law, what was the purpose of art 13 (2) other laws would anyway be declared unconstitutional!

    #2. Is basic structure doctrine relevant in the present political scenario where no single party is unlikely to enjoy majority in both the houses?

    #3. What should be the limits to amending power of parliament? Do u think for very substantial amendments instead of courts, people by way of referendum should determine whether amendment should go through or not?

    #4. Whatever happens to original intent theory that constitutional courts have to interpret constitution in accordance with the implied intentions of founding fathers and there is enough evidence to suggest founding fathers thoughtfully kept FRs sacrosanct to prevent their abrogation or as we would see in a later article how supreme court by creative interpretation virtually changed procedure established by law in art 21 to due process of law while founding fathers deliberately kept expression as procedure established by law.

     

    Conclusion

    • By restraining the amending powers of legislative organ of State, it provided basic Rights to Citizens which no organ of State can overrule. Being dynamic in nature, it is more progressive and open to changes in time unlike the rigid nature of earlier judgements.

    Mains question

    Q. What do you understand by basic structure of constitution? Trace evolution of basic structure in India.

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  • Intra party elections

    Intra party electionContext

    • Congress party has issued a notification for the party’s presidential election hinting towards intra party election.
    • As per the official notification, party leaders can file nominations from 24 September to 30 September. The voting will be held on 17 October and the results will be declared on 19 October.

    What are the elections?

    • An election is a way people can choose their representatives of their preferences in a representative democracy. Elections enable people to judge the performance of the government.

    Why they are important?

    • Elections give people a chance to evaluate their leaders, chance to change the government.
    • Elections help the people in the selection of their representatives and it provides law making power directly to the people.
    • Elections make a fundamental contribution to democratic governance.

    Intra party electionWhat is mean by Intra party elections?

    • It is a mechanism to choose the candidates for various posts of the political through a democratic process, it’s a mandate given by the members of the party itself.
    • The intra-party election is a fundamental indicator to explore the authenticity of democratization and decentralization of political parties.

    Why elections are necessary within the political parties?

    • Internal debates: During intra party elections there would be contests between leaders. There will be debate, discussions some criticism, and differences of opinion. There should be a dialogue between the leaders, members and volunteers
    • Democratic culture: Political parties don’t have to be homogeneous in terms of both ideas and leadership. Political parties are aggregations of interests yet Party workers should not feel they are being ignored, that their efforts are not appreciated or not going in vain under the shadow of a leader came from the family lines.
    • Political career: Having these internal elections, meetings and contests of ideas is important.  Internal election is a key for upward mobility. It gives better understanding of the party’s idea, culture and the work process.
    • High command culture: High command culture is what we are witnessing today in India and South Asia is problematic for democracy, where all political parties are centralized. The few members at the helm are controlling even the smallest decisions about what party should do. Members are not able to express freely their personal views.
    • Feudalism: They are family-controlled parties, and dynastic politics has become a norm. Won’t be able to name more than three or four political parties which have survived 30 years in Indian politics and are today not controlled by apolitical family.
    • Favoritism: where you can only rise up the ranks in the system depending on the relationship you share with the first family of that party. Irrespective of difference of opinions with the top leaders of the party, the upward mobility majorly depends on the relationship.

    Intra party electionWhat is a Legal framework for election?

    There is no law for intra-party elections as of now.

    • Seshan effect: When T.N. Seshan was at the helm of the Election Commission of India (ECI); by an executive order political parties were ordered to conduct intra party elections. And because Seshan was a much respected and feared person, political parties complied with it. Since then, elections are held periodically in every recognized party.
    • What Constitution says: Article 324 says free and fair elections to parliament, state assemblies, president and vice-president. It doesn’t say anything about political party or election within.
    • What Courts argue: The courts have made an observation that nothing in Article 324 of the Constitution, or Section 29A of the Representation of the People Act, 1951 tells us that the ECI can actually regulate internal structures, organizations or elections of the party. Which is why parties, on the left or right, have not been conducting internal elections as we want them to conduct them

    Worldwide practice

    • USA: In the U.S. election, the selection of the candidate to be the presidential nominee is done via debate, in which the contenders condemn and criticize each other.
    • UK: In the U.K. Democracy should be at every level, and political parties are an essential pillar of democracy. Intra party election happens to choose the leader of party.

    What is state funding of election?

    • It is an idea where state or Government of India provides funding to political parties according to their electoral performance.
    • As of today, state does provide land at concessional rate, free air time on national television but today political parties do not come under RTI. Hence some suggest state funding of elections to regulate the behavior of political parties.

    What is the Role of Election Commission in organizational election of political parties?

    • The ECI does insist on organizational elections, but only gently. They do go through the process.
    • Election can happen only if there are two or more candidates in the fray. Getting elected unopposed is also a valid election. It is not just within the political parties, we have

    Seen it in panchayat elections and sometimes even in Lok Sabha and State Assembly elections that candidates have got elected unopposed.

    Intra party electionHow to fix the accountability of the political parties?

    • ECI re-interpreting the existing laws, as happened in the 1990s. ECI has to imagine its role as a regulator of these political parties and in some ways. They have to try out milder options.
    • Political parties are required to hold organizational elections regularly. The parties are required to inform the ECI about changes in their office-bearers.
    • They are required to submit a document of expenditure incurred during elections and in the non-election periods. But there is no cost attached to non-compliance.
    • Expert suggests state funding of election would ensure the accountability of parties as it will bring parties under ambit of RTI and voters can seek the expenditure report from parties. Election commission can also penalize party for non-compliance.

    Conclusion

    • Election for a gram panchayat or presidential it is always a booster for democracy. Intraparty elections are beneficial for party, contesting individual and country at large, it culminates into emergence of quality leadership which in turn a boon for good governance.

    Mains Question

    Q. Intra party elections are essential feature of healthy democracy. Discuss the role of election commission, the courts and the political parties for the healthy functioning of intra party democracy.

    Do follow

    Internal democracy in political parties

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  • Live Streaming of SC proceedings: the rationale and the concerns

    From September 27 onward, all proceedings of Supreme Court Constitution Benches will be live-streamed, a full court meeting of the top court has decided.

    Background of the move

    • History was made on August 26 (2022) when the proceedings from the Chief Justice’s Court in the Supreme Court (SC) were live streamed.
    • In the ‘Swapnil Tripathi’ judgment, in September 2018, the SC had cleared the deck for live streaming of cases of national and constitutional importance.

    Immediate triggers for live streaming

    • They had agreed to hear a public interest litigation seeking live streaming of judicial proceedings on matters of constitutional and national importance.
    • Prime considerations cited are:
    1. De-congestion of courts and
    2. Improving physical access to courts for litigants who have to otherwise travel long distances

    Recommended by A-G

    • The Supreme Court approved a set of guidelines suggested by the A-G, which included allowing transcripts and archiving the proceedings.
    • However, the A-G suggested that the court must retain the power to withhold broadcasting, and to also NOT permit it in cases involving:
    1. Matrimonial matters,
    2. Matters involving interests of juveniles or the protection and safety of the private life of the young offenders,
    3. Matters of National security,
    4. To ensure that victims, witnesses or defendants can depose truthfully and without any fear.
    5. To protect confidential or sensitive information, including all matters relating to sexual assault and rape,
    6. Matters where publicity would be antithetical to the administration of justice, and
    7. Cases which may provoke sentiments and arouse passion and provoke enmity among communities.

    Live streaming in HCs

    • Following the SC’s decision, Gujarat High Court began live streaming its proceedings in July 2021.
    • Currently, the Jharkhand, Karnataka, Madhya Pradesh, Orissa, and Patna High Courts live stream their proceedings.
    • Allahabad High Court is learnt to be considering doing the same.

    Global examples of live streaming

    • United States of America: While the US Supreme Court has rejected pleas for broadcast of its proceedings, it has since 1955 allowed audio recording and transcripts of oral arguments.
    • United Kingdom: In 2005, the law was amended to remove contempt of court charges for recording proceedings of the Supreme Court.

    Why need live streaming of court?

    • Improved accountability: Live-streaming of court proceedings would serve as an instrument for greater accountability and formed part of the Code of Criminal Procedure, 1973.
    • 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
    • Empowering the masses: It will enable the legal system to deliver on its promise of empowering the masses.
    • 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.
    • Academic help: Live streaming may also be a help for academic purposes.

    Concerns around live streaming

    • 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.

    Issues to judicial functioning

    • Decency of questions: During hearings judges may not ask questions or make comments that could be perceived as unpopular.
    • Triggers for oral observations: There is an increasing trend of oral observations of the court, which are not binding on parties replacing reasoned judgment and orders that are consequential.
    • Dignity of court may be compromised: Similarly, lawyers, aware of their new audience, may choose to grandstand and play to the gallery, especially in a case they expect to lose.

    Way forward

    • Selective broadcast: The solution may lie in carefully determining how the live streaming proceeds.
    • Careful selection of cases: Not uploading archived stream on the SC website until it is legally/technologically possible to ensure that such videos cannot be spliced.
    • Understanding public perception and sentiments: Other similar measures that reflect an understanding of how the public consumes (dis)information will ensure that live streaming enriches constitutionalism across the country.

    Conclusion

    • A hasty and wholesale introduction on the other hand is likely to land the SC right in the middle of the majoritarian and toxic information swamp that prevails in the country.

     

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  • Rules for Identifying Criminals now notified

    On September 19, the Ministry of Home Affairs (MHA) notified the rules governing The Criminal Procedure (Identification) Act, 2022. The Act was passed in March by the Parliament.

    Why in news?

    Rules for Identifying Criminals now notified - Civilsdaily

    • Until rules are notified, an Act cannot be implemented or come into force.
    • The legislation would enable police and central investigating agencies to collect, store and analyse physical and biological samples including retina and iris scan of arrested persons.

    What is the Criminal Procedure (Identification) Act, 2022?

    Ans. It is about critical measurements of Criminals.

    • This act provides legal sanction to law enforcement agencies for taking measurements of convicts and other persons for the purposes of identification and investigation of criminal matters.
    • The Minister of Home Affairs has observed that with advancements in forensics, there was a need to recognise more kinds of “measurements” that can be used by law enforcement agencies for investigation.

    What is the use of identification details in criminal trials?

    • Measurements and photographs for identification have three main purposes:
    1. To establish the identity of the culprit against the person being arrested
    2. To identify suspected repetition of similar offences by the same person and third
    3. To establish a previous conviction

    What was the previous Identification of Prisoners Act, 1920 about?

    • Even though the police has powers of arrest, mere arrest does not give Police the right to search a person.
    • The police requires legal sanction to search the person and collect evidence.
    • These legal sanctions are designed so as to maintain a balance between the rights of an individual and the interests of society in prosecution and prevention of offences.
    • The Identification of Prisoners Act, 1920 became a necessity when the recording of newer forms of evidence such as fingerprints, footprints and measurements started becoming more accurate and reliable.

    What was the need to replace this Act?

    Ans. Changing nature of Crime

    • Over the years, the need to amend/update the Identification of Prisoners Act, 1920 has been voiced several times.
    • In 1980, the 87th Report of the Law Commission of India undertook a review of this legislation and recommended several amendments.
    • This was done in the backdrop of the State of UP vs. Ram Babu Misra case, where the Supreme Court had highlighted the need for amending this law.
    • The first set of recommendations laid out the need to amend the Act to expand the scope of measurements to include “palm impressions”, “specimen of signature or writing” and “specimen of voice”.
    • The second set of recommendations raised the need of allowing measurements to be taken for proceedings other than those under the Code of Criminal Procedure (CrPC).

    What are the main highlights and differences in both the legislations?

    • Both provide legal sanction: Like the 1920 Law, the new Criminal Procedure (Identification) Act, 2022 provides for legal sanction to law enforcement agencies for the collection of measurements.
    • Creating usable database of evidences: The purpose is to create a useable database of these measurements.
    • Notifying designated state agencies: At the State level, each State is required to notify an appropriate agency to collect and preserve this database of measurements.
    • NCRB at centre stage: At the national level, the National Crime Records Bureau (NCRB) is the designated agency to manage, process, share and disseminate the records collected at the State level.

    What are some of the concerns with the present legislation?

    • Striking a balance: The new legislation has raised some concerns related to the protection of fundamental rights.
    • Unresolved right to Privacy debate: The legislation comes in the backdrop of the right to privacy being recognised as a fundamental right.
    • Notion of physical privacy: A fundamental facet of the right to privacy is protection from the invasion of one’s physical privacy.
    • Justifying necessity: As per the Puttaswamy judgment, there is a need for the measure to be taken in pursuance of a legitimate aim of the state, be backed by the law and be “necessary and proportionate” to the aim being sought to be achieved.

    (1) Various tests behind

    • In this case, while the first two tests are satisfied, as:
    1. “prevention and investigation of crime” is a legitimate aim of the state
    2. “measurements” are being taken under a valid legislation,
    • Satisfaction of the third test of “necessity and proportionality” has been challenged on multiple counts.

    (2) A probable police state in making

    • Analysis and measurement of behavioural attributes have raised concerns that data processing may go beyond recording of core “measurements”.
    • That is some of these measurements could be processed for predictive policing.

    (3) Includes petty offences

    • The current law allows for “measurements” to be taken if a person has been convicted/arrested for any offence, including petty offences.
    • The necessity of taking measurements of such persons for investigation of offences is unclear, and such discretion is likely to result in abuse of the law at lower levels.
    • This would definitely overburden the systems used for collection and storage of these measurements.

    (4) Period of storage of data

    • Given that these records will be stored for 75 years from the time of collection, the law has been criticised as being disproportionate.

    (5) Surveillance state

    • Such collection can also result in mass surveillance, with the database under this law being combined with other databases such as those of the Crime and Criminal Tracking Network and Systems (CCTNS).

    (6) Promotes self-incrimination

    • Concerns are being raised that the present law violates the right against self-incrimination enshrined in Article 20(3) of the Constitution of India.
    • However, this argument is nebulous since the Supreme Court has already settled this point.
    • In the State of Bombay vs Kathi Kalu Oghad, the Supreme Court had conclusively held that “non-communicative” evidence i.e. evidence which does not convey information within the personal knowledge of the accused cannot be understood to be leading to self-incrimination.
    • Therefore, no challenge lies to the law on this ground.

    Way forward

    • Extensive pre-legislative consultation is must for any sensitive law as such.
    • Privacy and data protection-related concerns must be addressed in the Rules formulated under the legislation and through model Prison Manuals that States can refer to.

     

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  • Ratan Tata, KT Thomas appointed trustees of PM CARES

    The Union government has appointed veteran industrialist Ratan Tata, former Supreme Court judge K.T. Thomas, and former Lok Sabha Deputy Speaker Kariya Munda as trustees of the PM CARES Fund.

    PM CARES Fund

    • The PM CARES Fund was created on 28 March 2020 following the COVID-19 pandemic in India.
    • The fund will be used for combat, containment and relief efforts against the coronavirus outbreak and similar pandemic like situations in the future.
    • The PM is the chairman of the trust. Members will include the defence, home and finance ministers.
    • The fund will also enable micro-donations. The minimum donation accepted is ₹10 (14¢ US).

    Some intriguing facts about PM-CARES fund

    • PM CARES has been created not by law, not by notification, but by the mere creation of a webpage, and set up last year in March to raise funds for those affected by the COVID-19 pandemic.
    • The page lists its structure, functions and duties in an arbitrary manner.
    • The official appeals for funds are made under the national emblem.
    • The most significant lie of this sworn statement is that the Government has no control over the Fund.

    The other funds

    (1) National Disaster Response Fund (NDRF)

    • The statutorily constituted NDRF was established under the Disaster Management (DM) Act of 2005.
    • The NDRF is mandated to be accountable, and answerable under the RTI Act, being a public authority, and auditable by the Comptroller and Auditor General of India.

    (2) Disaster Response Fund

    • The DM Act also provided for a Disaster Response Fund — state and district level funds (besides the national level).
    • It also collects and uses the donations at the local level, with mandatory transparency and audit provisions.

    (3) Prime Minister’s National Relief Fund

    • There is the PMNRF operative since the days of Jawaharlal Nehru. It was established with public contributions to assist displaced persons from Pakistan.
    • The resources are now utilised primarily to render immediate relief to families of those killed in natural calamities and to the victims of the major accidents and riots.
    • However, it has the President of India and the Leader of Opposition also as trustees.

    Issues over PM-CARES Fund

    • No defined purpose: It is deliberately ignored while a new, controversial, unanswerable, and ‘non-accountable vehicle is created; its character is not spelt out till today.
    • Non-accountable: The government seems to consider statutory provisions for enquiry and information seeking to be embarrassing obstacles.
    • Centralization of donations: It centralises the collection of donations and its utility, which is not only against the federal character but also practically inconvenient. The issue is seeming, the trusteeship of the fund.

    Questions and gaps

    • Law/statute: The PM CARES Fund was neither created by the Constitution of India nor by any statute.
    • Authority: If that is the case, under what authority does it use the designation of the Prime Minister, designated symbols of the nation, the tricolour and the official (gov.in) website of the PMO, and grant tax concessions through an ordinance.
    • Collection and dispensation: The amount received by the Fund does not go to the Consolidated Fund of India. If it goes to the CFI, it could have been audited by the CAG.
    • Uncontrolled: The This Trust is neither intended to be or is in fact owned, controlled or substantially financed by any instrumentality of the any govt even being chaired by the PM.

    Issue over tax benefits

    • Income tax: An ordinance was promulgated to amend Income Tax Act, 1961 and declare that the donations to the PM CARES Fund “would qualify for 80G benefits for 100% exemption”.
    • CSR Funds: It will also qualify to be counted as Corporate Social Responsibility (CSR) expenditure under the Companies Act, 2013.
    • Foreign donations: It has also got exemption under the FCRA [Foreign Contribution Regulation Act] and a separate account for receiving foreign donations has been opened.

    What can be inferred from all these?

    • The Centre now considers it as another obstacle and has created a new trust with the Prime Minister and his Ministers only.
    • The manner in which the PM CARES Fund was set up — with its acronym created to publicise the point that the PM cares for people — shows a bypassing of the statutory obligations of a public authority.

    Query and response: Again ironical

    • After initial denials, the Government has conceded it to be a public charitable trust, but still maintains that it is not a ‘public authority’.
    • The point is that the PMO operates the Fund, but says it cannot supply any information about the PM CARES Fund because it is not a public authority.

    Severe interpretations: Is it an Office of Profit?

    • If the PM CARES Fund is unconnected with the Government, then the Fund could become an office of profit.

    Conclusion

    • In order to uphold transparency, the PM CARES Fund should be declared as a Public Authority under the RTI Act, and all RTI queries answered truthfully.
    • The fund should be designated as a “public authority” under Section 2(h) of the RTI Act.

     

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  • Donations to recognised Political Parties come under EC lens

    The Election Commission’s ongoing drive to clean up the electoral space has now gone beyond RUPPs (registered unrecognised political parties) to cover recognised national and State parties.

    What is Political Funding?

    • Political Funding implies the methods that political parties use to raise funds to finance their campaign and routine activities.
    • A political party needs money to pitch itself, its objectives, and its intended actions to get votes for itself. (Reference)

    Why need political funding?

    • Across the world, political parties need access to money in order to reach out to the electorate, explain their policies and receive inputs from people.
    • And in order to do the same, parties resort to political party funding.

    Generally who makes these funding?

    • Individuals: One of the primary sources of this funding is voluntary contributions made by individuals.
    • Corporates: Besides this, corporates pay hefty donations to parties in different forms.
    • Foreign aid: This is yet another source but highly controversial.

    Statutory Provisions

    • Section 29B of the Representation of the People Act (RPA) entitles parties to accept voluntary contributions by any person or company, except a Government Company.
    • Section 29C of the RPA mandates political parties to declare donations that exceed 20,000 rupees. Such a declaration is made by making a report and submitting the same to the EC. Failure to do so on time disentitles a party from tax relief under the Income Tax Act, 1961.

    Methods used by Indian Political Parties

    1. Individual Persons: Section 29B of RPA allows political parties to receive donations from individual persons.

     

    1. State/Public Funding: Here, the government provides funds to parties for election related purposes. State Funding is of two types:
    • Direct Funding: The government provides funds directly to the political parties. Direct funding by tax is prohibited in India.
    • Indirect Funding: It includes other methods except direct funding, like free access to media, free access to public places for rallies, free or subsidized transport facilities. It is allowed in India in a regulated manner.

     

    1. Corporate Funding: In India, donations by corporate bodies are governed under the Companies Act, 2013. Section 182 of the Act provides that:
    • A company needs to be at least three years old to be able to donate to a political party.
    • Companies can donate up to 7.5% of average net profits made during three simultaneous preceding financial years. (Now removed after Finance Act, 2017)
    • Such contributions must be disclosed in the company’s profit and loss account. (Removed)

     

    1. Electoral Trusts: A non-profit company created in India for orderly receipt of voluntary contributions from any person like an individual or a domestic company.
    • According to the Election Commission Guidelines, all electoral trusts formed after January 2013 are required to declare details of the money received and disbursed.
    • The Central Government rules mandate these firms to donate 95% of their total income to registered political parties in a financial year.

    Issues with Political Funding

    • Money laundering: One of the biggest disadvantages of the corporate funding is the use of fake companies to route black money.
    • Influence of contributor: Influence of people and companies over political parties to which they provide funds.
    • Election malpractices: There are various gaps in Indian rules, the benefit of which political parties take to avoid any kind of reporting.
    • Money politics: Hidden sources of funding lead to more spending of funds in election campaigns, thus impacting the economy of the country.

    Recent steps taken

    • FCRA Reforms: In March, 2018, the government passed a key amendment to the Foreign Contribution Regulation Act, 2010 allowing foreign companies to fund political parties in India.
    • Electoral Bonds Schemes: The government notified the Electoral Bond Scheme on 2nd January, 2018 to establish and cleanse the system of political funding in the country.

    What is Electoral Bond Scheme?

    • An electoral bond is a bearer instrument like a Promissory Note.
    • It can be purchased by any citizen of India or a body incorporated in India to donate to the political party of their choice.
    • Donor’s name is not there on the bond.
    • These bonds can be used for making donations to the political parties registered under Section 29A of the RP Act, 1951.
    • The party should have secured not less than one per cent of the votes polled in the last general election to the Lok Sabha or a Legislative Assembly.

    Issues with the scheme

    • Opaque funding: While the identity of the donor is captured, it is not revealed to the party or public. So transparency is not enhanced for the voter.
    • No IT break: Also income tax breaks may not be available for donations through electoral bonds. This pushes the donor to choose between remaining anonymous and saving on taxes.
    • No anonymity for donors: The privacy of the donor is compromised as the bank will know their identity.
    • Differential benefits: These bonds will help any party that is in power because the government can know who donated what money and to whom.

    Way forward

    Former Chief Election Commissioner SY Quraishi has suggested an alternative worth exploring:

    • A National Electoral Fund to which all donors can contribute.
    • The funds would be allocated to political parties in proportion to the votes they get.
    • Not only would this protect the identity of donors, it would also weed out black money from political funding.
    • There can be a tax benefit for those who donate to the fund.

     

    Try this question from our AWE Initiative

    Q.2) Examine the issues with political funding in India. How far has the introduction of electoral bonds succeeded in dealing with the issues with political funding? (10 marks)

     

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