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Subject: Polity

  • 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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  • India @75 –Relooking our democracy

    Context

    • As we celebrate the nation @75 , we must also reflect on the mixed nature of our democracy

    Definition of democracy

    • “Government of the people, by the people and for the people” were 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.

    Background

    • India is a parliamentary democratic secular republic in which the president of India is the head of state & first citizen of India and the prime minister of India is the head of government.
    • It is based on the federal structure of government, although the word is not used in the Constitution itself.

    How it has performed

    (1) Political front

    • India is the world’s the largest democracy proved success in accommodation of group and regional demands in a complex, quasi-federal, polity.
    • During the first general election in the 1951 India had 54 political parties and now it has grown up to 464 in the 2014 general election as an evident of deepening of the democratic process.
    • In the first General election 1951, 173 million citizens were given right to vote.
    • In the 16th general election in 2014, the size of the electorate had increased to 814 million.

    (2) Social front

    • The democratic process has brought about a shift of political power from the middle and higher castes and classes of urban society to backward classes who are now the politically most influential ones in the country.
    • They have won reservations for themselves in legislatures and government services as were accorded to the Scheduled Castes and Scheduled Tribes after independence through Constitutional provisions.

    (3) Economic Front

    • These include strategic affairs and security, politico-legal democratic governance as well as society and economy.
    • India has been able to emerge as a regional power in Asia and super power in south Asia backed by its economic, military and nuclear capabilities.

    Contradictions in democracy

    • Performance of Bureaucracy: Dishonest officials to protect themselves from the consequences of their wrong-doings have largely exploited constitutional protection for the Services under Article 311.
    • Administration of Justice: Judicial system has not been able to meet even the modest expectations of the society. Its delays and costs are frustrating, its processes slow and uncertain. People are pushed to seek recourse to Extra-legal methods for relief. Trial system both on the civil and criminal side has utterly broken down.
    • Areas of Concern: There is a fundamental breach of the constitutional faith on the part of the Governments and their method of governance lies in the neglect of the people who are the ultimate source of all political authority.
    • Regionalism: Issues of national integrity and security have not received adequate and thoughtful attention. Mechanisms for the assessment of early warning symptoms of social unrest are absent.
    • Corruption: The increasing instability of elected governments is attributable to opportunistic politics and unprincipled defections.

    Some positive suggestions to government

    • Feedback: The Government should hear criticism rather than rejecting it outrightly. Suggestions on eroding democratic values need a thoughtful, and respectful response.
    • Freedom of press: The press and the judiciary which are considered the pillars of India’s Democracy, require to be independent of any executive interference.
    • Opposition: strong democracy requires strong opposition. Without an alternative choice, the very objective of election to provide a check on arbitrary power gets defeated.

    Way forward

    • The institutionalization of constitutional democracy has helped the people of India realize the importance of democracy and inculcate democratic sensibilities among them.
    • At the same time, it is important that all the government organs work in harmony to uphold the trust people of the country have held in them and ensure the objectives of true democracy.

    Mains question

    Q.We are celebrating Azadi ka amrit mahotsav India @75, trace the journey of democracy critically by providing some suggestions for robust democracy.

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  • Police reforms in India

    Context

    • There is a widely shared view that the All India Services, which provided the ‘steel frame’ of governance in a democratic India, particularly on the police front, are failing to deliver.
    • This is because of the declining decision-making ability of its officers, their smugness arising from notions of total employment security, and the inadequacy of parameters used for evaluating their performance.
    • Anti-corruption bureau Was Constituted To Shield Corrupt Politicians, Officers From Lokayukta: Karnataka High Court

    Role of Police

    • Law enforcement: The basic role of the police is to function as a law enforcement agency and render impartial service to law, without any heed to wishes, indications or desires expressed by the government which either come in conflict with or do not conform to the provisions contained in the constitution or laws.
    • Service delivery: The police should have duly recognised service-oriented role in providing relief to people in distress situations. They should be trained and equipped to perform the service oriented functions.

    Issues with police institution

    • Public relationship: The police-public relations relationship, which is crucial to effective policing, is troubled by a severe lack of confidence.
    • Public perception towards police: Most people believe police to be abusive and also believe that police personnel misuse their power in order to bring order to society.
    • Police Accountability: Police priorities are constantly changed at the request of political leaders. This obstructs police officers’ ability to make professional decisions
    • Overburdened force and vacancies: A high percentage of vacancies in police departments exacerbates an already-existing problem of overworked officers. Given India’s low police strength per lakh population in comparison to international standards, each police officer is also responsible for a huge group of people.
    • Infrastructure: The weapons used by lower police forces are obsolete and cannot match modern weaponry used by anti-social elements.
    • Custodial Death: There are many cases on custodial death means Death by torture/pressure in police/judicial custody.
    • The dilemmas and challenges:

    (1) The Ubiquitous infrastructure (2) Explosion of police tasks (3) Dis-functionalism of rural police (4) Anomalous personnel system (5) The colossal ignorance of either side (6) The fragility of the equipment (7) The paradox of para militarism (8) Non-development to policing

    Steps taken till now

    • Establishment of a Central Police Committee:

    A Central Police Committee to look after the functions of consultancy and monitoring be

    Created because an expert agency is required by the Central Government and the State

    Security Commissions to advise them on matters relating to:

    (i) Police Organisation and police reforms of a general nature;

    (ii) Central grants and loans to the State Police Forces for their modernisation and Development; and

    (iii) Budgetary allotments to State Police Forces.

    • Enactment of a Model Police Act:

    The Police Act of 1861 replaced by a new Police Act, which not only changes the

    System of superintendence and control over the police but also enlarges the role of the

    Police to make it function as an agency which promotes the rule of law in the country and

    Renders impartial service to the community.

    • The Prime Minister’s call for making the police a SMART force: standing for a force which is:
    1. Strict and Sensitive,
    2. Modern and Mobile,
    3. Alert and Accountable,
    4. Reliable and Responsive,
    5. Tech-savvy and trained.
    Malimath committee:

    • Government had set up (November, 2000) a Committee under the Chairmanship
    • of Justice V.S. Malimath , a former Chief Justice of the Karnataka and Kerala High
    • Courts to consider and recommend measures for revamping the Criminal Justice System.

    Key recommendations :

    • Strengthening of training infrastructure, forensic
    • Science laboratory and Finger Print Bureau,
    • Enactment of the new Police Act,
    • Setting up of Central Law Enforcement agency to take care of federal crimes
    • Separation of the investigation wing from the law and order wing in the police stations,
    • Improvement in the investigation by creating more posts.

    Some suggestions for better policing:

    • Screen for Implicit Bias and Aggression: State legislatures should pass legislation that requires current and prospective police officers to undergo mandatory implicit bias testing
    • Focus on Collaborative Approaches to Policing: Police departments should rely upon collaborative approaches that respect the dignity of individuals within the community; focus on problem-solving; and are generally more community centered and build community trust.
    • Encourage Consistent Monitoring and Screening: Police departments should create early warning systems for detecting patterns of behaviour, such as complaints filed against officers or personal hardships like divorce, which indicate potential vulnerabilities for the officer and the department.
    • Use Video Recording to Promote Accountability: Legislatures should require that police interrogations be electronically recorded “during the time in which a reasonable person in the subject’s position would consider themselves to be in custody and a law enforcement officer’s questioning is likely to elicit incriminating responses.
    • Increase the use of special prosecutors in police misconduct investigations
    • Enhancing the collection of data on fatalities involving police

    Conclusion

    • India is the target of an ever-growing list of terrorist groups, insurgent forces and criminal networks.
    • Even petty criminals are now in possession of hi-tech gadgets that allow them better access and reduce their chances of being caught.
    • In such an environment, the need for skill and competency up-gradation of the police force is a sine qua non.

    Q. What is smart policing? Considering the rise in custodial deaths give some suggestions to improve criminal justice delivery system in India.

     

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  • SC to take up plea to ban convicts from polls for life

    The Supreme Court has said that it would consider a plea seeking a lifetime ban on people convicted of offenses from contesting elections and becoming MPs and MLAs.

    Why such petition?

    • The petition has made a very logical argument that even a constable can lose his job after conviction for corruption.
    • The Centre maintained affirmation on the existing (namesake) bar of disqualification was enough for legislators.
    • The disqualification under the Representation of the People Act of 1951 is the period of prison sentence and six years thereafter.

    What did the Centre argue against lifetime ban?

    • In 2017, the ECI endorsed the call for a life ban in the top court. This was a boost for the cause of decriminalisation of politics.
    • In Dec 2020, the Centre rejected the idea of a lifetime ban on convicted persons contesting elections or forming or becoming an office-bearer of a political party.
    • It had reasoned that MPs and MLAs were not bound by specific “service conditions”.
    • They are bound by their oath to serve citizens and country along with propriety, good conscience and interest of the nation.

    Criminalization of politics: Indian Case

    • The criminalization of politics has become a headache for the Indian democracy and it is a harsh reality now.
    • Criminalization of politics in India includes political control of the police, state money, corruption, weak laws, lack of ethics, values, vote bank politics and loopholes in the function of the election commission.
    • Deep down, it’s a large nexus of police, money, corrupt bureaucracy, casteism, religion and the drawbacks of functioning in the election commission.

    Why are tainted candidates inducted by political parties?

    • Innocent until proven guilty maxim: The other reason offered by political parties is summarised by the maxim of Indian law, which is that any accused is innocent until proven guilty.
    • Popularity: Such candidates with serious records seem to do well despite their public image, largely due to their ability to finance their own elections and bring substantive resources to their respective parties.
    • Prospected victory: The logic of a candidate with criminal charges doing better for the cause of people of is another flawed argument.
    • Destabilizing other electors: Others do not seek to punish these candidates in instances where they are in contest with other candidates with similar records.
    • Vested interests: Some voters tend to view such candidates through a narrow prism: of being able to represent their interests by hook or by crook.

    A harsh reality of Political Asylum

    • The NN Vohra committee’s report on the criminalization of politics discussed how criminal gangs flourish under the care and protection of politicians.
    • Many times the candidates themselves are the gang leaders.
    • This protection is paid back to them during elections through capital investment in election spending and voter support.

    Issues with Criminals in Politics

    • Morality of the process: It is extremely important that the people who enter the field of politics have a clear image and high moral character.
    • No rule of law: A leader with criminal character undoubtedly tends to undermine the rule of law.
    • Violation of right to equality: There were 4.78 lakh prisoners (as of December 2019) of whom 3.30 lakh were under trial, i.e. not yet proven guilty.
    • Problem of undertrial: An “innocent” undertrial cannot vote, but a man chargesheeted for murder can even contest election from jail.

    Supreme Courts guidelines in this regard

    The Supreme Court earlier in Feb 2020 had ordered political parties to publish the entire criminal history of their candidates for Assembly and Lok Sabha elections.

    • Reasons for nomination: It has also asked for the reasons that goaded them to field suspected criminals over decent people.
    • Publication of records: The information should be published in a local as well as a national newspaper as well as the parties’ social media handles.
    • 48hr time frame: It should mandatorily be published either within 48 hours of the selection of candidates or less than two weeks before the first date for filing of nominations, whichever is earlier.
    • Contempt for non-compliance: It also ordered political parties to submit compliance reports with the Election Commission of India within 72 hours or risk contempt of court action.
    • No escape: The judgment is applicable to parties both at Central and State levels.

    Immediate Reason for Judicial Action

    • The immediate provocation is the finding that 46% of MPs have criminal records.
    • The number might be inflated as many politicians tend to be charged with relatively minor offences —“unlawful assembly” and “defamation”.
    • The real worry is that the current cohort of Lok Sabha MPs has the highest (29%) proportion of those with serious declared criminal cases compared to its recent predecessors.

    Way forward

    (1) ECI suggestion on vendetta politics

    The ECI has suggested some safeguards against vendetta politics.

    • First, only offences that carry an imprisonment of at least 5 years are to be considered.
    • The case against the candidate should have been filed at least six months before the scheduled elections for it to be considered.
    • And finally, a competent court must have framed the charges.

    (2) Speedy trials

    • An alternative solution would be to try cases against political candidates in fast-track courts.
    • The SC had sent a directive in 2014, directing that cases against political candidates must be completed within a year, failing which the matter should be reported to the CJs.

    (3) Legislative reforms

    • We must have a law which debars persons with serious criminal cases from entering the assemblies and the Parliament.
    • There must be stringent criteria in Representation of Peoples Act as well.

    (4) Revamping Criminal Justice System

    • The criminal justice system must be revamped as recommended by the Malimath Committee.
    • An institution comprising representatives of the police/CBI/NIA, IB, IT department, Revenue Intelligence and Enforcement Directorate should be set up to monitor the activities of the mafia and criminal syndicates in the country.

     

     

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  • Right to abortion won’t be restricted by a woman’s marital status

    Context

    Recently, a three-judge bench of the Supreme Court of India delivered a significant order, clarifying that the right to a medical abortion that was available to married women could not be denied to unmarried women.

    Background of the case

    • The SC’s order granting permission to undergo an abortion was passed in the case of a petitioner who was in a consensual relationship, and whose partner deserted her.
    • The Delhi High Court had denied the petitioner’s right to terminate her pregnancy.
    •  Rule 3B of the Medical Termination of Pregnancy Rules 2003, lays down the categories of women who are eligible for termination of pregnancy up to 24 weeks:
    • Survivors of sexual assault or rape or incest; minors; where there is a change of marital status during the ongoing pregnancy (widowhood and divorce); women with physical and mental disabilities, women with pregnancies in humanitarian settings; foetal “malformations” that have a substantial risk of being incompatible with life, or which, if the child is born, may cause it to suffer from a serious physical or mental handicap.
    • The High Court found that the petitioner had not undergone a “change in marital status”.
    • The SC found that prima facie, the High Court had been too restrictive in its approach, and that the term “change in marital status” should be given a purposive interpretation.

    Three key judgments

    • The Supreme Court in this casebased this finding on the 2021 Amendment to the MTP Act, which no longer restricts itself to an unwanted pregnancy between a “husband” and “wife”, but to a woman and her “partner”, by marriage or not.
    • The Court relied on three key judgements:
    • 1] The 2010 S Khushboo case, which recognised the legality of live-in relationships and pre-marital sex.
    • 2] The 2009 Suchita Srivastava case, which recognised that a woman’s right to make reproductive choices is part of the “personal liberty” guaranteed under Article 21.
    • 3] The 2017 K S Puttaswamy case, which reaffirmed that women’s right to bodily integrity is part of the fundamental right to privacy.
    • The Court observed: The statute has recognised the reproductive choice of a woman and her bodily integrity and autonomy.
    • Contrast with rights in the US: The SC’s order attains significance in contrast to the recent Dobbs decision in the US.
    • Constitutional rights are interconnected: Unravel one and the entire edifice of protections could fall apart.

    Conclusion

    The Supreme Court offers hope that right to abortion won’t be restricted by a woman’s marital status.

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  • Disruptions in Parliament

    Context

    The inability of Parliament to transact any business and the lack of serious deliberation must be a matter of grave concern for all.

    Purpose of deliberative democracy

    • In a deliberative democracy, Parliament works as a special purpose vehicle for the legislative scrutiny of bills, grievance redressal and debate on policies and related governance issues.
    • Its failure to transact business is a sad commentary on three aspects — Members of Parliament, the presiding officers as well as the rules and regulations that define the functioning of both Houses.

    How disruption affects Member of Parliaments

    • For any parliamentarian, it is extremely disappointing to be unable to speak in the House for which he or she has — in most cases —given notice and come prepared.
    • And when this happens too often, their enthusiasm decreases.
    • Impact on quality of debate: In such a situation, members are often tempted to make a popular intervention than a substantive one.
    • This certainly impacts the quality of debates negatively.

    Challenges for presiding officer

    • For the presiding officers too, preventing disruptions is a serious challenge.
    • Perhaps presiding officers can emulate the courts of law.
    • Use of in-camera proceedings: Like in courts, the presiding officers  need to consider conducting in-camera proceedings in their chambers to insulate at least the Zero Hour and Question Hour from getting washed out.
    • While the House remains force-adjourned, presiding officers can order in-camera hearing of questions of MPs and replies of ministers.
    • Zero Hour submissions could also be dealt with similarly.
    • Some tweaking of existing rules and regulations may facilitate this.

    Issues with media coverage of Parliamentary proceedings

    • In any polity, systems work effectively when wrongdoers are punished and rule-abiding people are rewarded.
    •  What happens currently is exactly the opposite, especially in the context of coverage of parliamentary proceedings in mainstream media.
    •  The space allocated for parliamentary proceedings in both, print and electronic media is shrinking fast.
    • Rarely does one finds adequate coverage of Question Hour or Zero Hour compared to the past.
    • Debates on bills are also subject to brief and sketchy reporting.
    • Although disruptions have become common, they continue to get reported without fail and disruptors often bask in the media limelight.
    • As against this, those who make a reasonably good speech — well argued and supported by statistics, examples or case studies — rarely get adequate attention.
    • This too hampers the interest of parliamentarians.
    • It is high time we rise above the temptations of this tendency and think seriously about systemic reforms.

    Conclusion

    As the Parliament of independent India enters the eighth decade of its history and prepares to enter a new, more well-equipped and modern Parliament House, it is the right time to think about how we can add value to our deliberative democracy.

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  • What is PESA Act?

    A Political Party has declared a six-point “guarantee” for tribals in Gujarat’s Chhota Udepur district, including the “strict implementation” of The Panchayats (Extension to the Scheduled Areas) Act (PESA Act).

    What is PESA Act?

    • The PESA Act was enacted in 1996 to provide for the extension of the provisions of Part IX of the Constitution relating to the Panchayats to the Scheduled Areas.
    • Other than Panchayats, Part IX, comprising Articles 243-243ZT of the Constitution, contains provisions relating to Municipalities and Cooperative Societies.
    • Under the PESA Act, Scheduled Areas are those referred to in Article 244(1), which says that the provisions of the Fifth Schedule shall apply to the Scheduled Areas and Scheduled Tribes in states other than Assam, Meghalaya, Tripura, and Mizoram.
    • The Fifth Schedule provides for a range of special provisions for these areas.

    How is the PESA Act, 1996 supposed to work?

    • The PESA Act was enacted to ensure self-governance through Gram Sabhas (village assemblies) for people living in the Scheduled Areas.
    • It recognises the right of tribal communities to govern themselves through their own systems of self-government, and also acknowledges their traditional rights over natural resources.
    • In pursuance of this objective, the Act empowers Gram Sabhas to play a key role in approving development plans and controlling all social sectors.

    Special powers accorded by PESA Act includes the:

    1. Processes and personnel who implement policies
    2. Exercising control over minor (non-timber) forest resources
    3. Minor water bodies and minor minerals
    4. Managing local markets
    5. Preventing land alienation and
    6. Regulating intoxicants among other things

    States and PESA Act

    • State governments are expected to amend their respective Panchayati Raj Acts without making any law that would be inconsistent with the mandate of PESA.
    • Ten states — Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, Rajasthan, and Telangana — have notified Fifth Schedule areas that cover partially or fully several districts in each of these states.
    • After the PESA Act was enacted, the central Ministry of Panchayati Raj circulated model PESA Rules.
    • So far, six states have notified these Rules, including Gujarat.

    What is the issue in Gujarat?

    • Gujarat notified the State PESA Rules in January 2017, and made them applicable in 4,503 gram sabhas under 2,584 village panchayats in 50 tribal talukas in eight districts of the state.
    • The provisions of the law deem the Gram Sabhas as “most competent”.
    • However, the Act has not been enforced in letter and spirit.
    • The Act lays down that the state must conduct elections in such a way that the tribal representation is to be dominant in the Gram Sabha Committees.
    • Yet again, there has been no attempt to proportionally increase the representation.

    Try this PYQ:

    Q.The Government enacted the Panchayat Extension to Scheduled Areas (PESA) Act in 1996. Which one of the following is not identified as its objective?

    (a) To provide self-governance

    (b) To recognize traditional rights

    (c) To create autonomous regions in tribal areas

    (d) To free tribal people from exploitation

     

    [wpdiscuz-feedback id=”x4jhcgg6m9″ question=”Please leave a feedback on this” opened=”1″]Post your answers here.[/wpdiscuz-feedback]

     

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  • Working of the Supreme Court Collegium

    Why in news?

    • The Ramana Collegium has been particularly successful.
    • Meeting frequently and working quickly, they took the perennial problem of judicial vacancies by its horns and turned it around.

    Success of Ramana Collegium

    • The collegium was able to recommend numerous judicial appointments and scripted history by getting nine Supreme Court judges appointed in one go.
    • Of the nine, Justice B.V. Nagarathna, is in line to be the first woman CJI in 2027.

    What exactly is the Collegium System?

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

    Evolution: The Judges Cases

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

    How does the collegium system work?

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

    The procedure followed by the Collegium

    Appointment of CJI

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

    Other SC Judges

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

    For High Courts

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

    Does the Collegium recommend transfers too?

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

    Loopholes in the Collegium system

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

    Way ahead

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

    Back2Basics:

     

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