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Subject: Polity

  • Consolidating multiple FIRs

    Context

    The Supreme Court’s (SC) refused to consolidate multiple FIRs filed in several states against former BJP spokesperson.

    When are multiple FIRs clubbed?

    • In 2001, the SC, in TT Antony vs. State of Kerala, made it clear that only the earliest information in regard to the commission of an offence could be investigated and tried.
    • In Babubhai vs. State of Gujarat (2010), the Court explained that the test to determine the sameness of the offence is to identify whether “the subject matter of the FIRs is the same incident, same occurrence or are in regard to incidents which are two or more parts of the same transaction”.
    • the SC extensively relied upon TT Antony while granting similar relief to two journalists.

    Reasons given by the SCs for refusal to club the FIRs

    •  The bench said that party spokespersons and journalists cannot be treated identically.
    • The Constitution creates no hierarchical difference between journalists and ordinary citizens when it comes to the enforcement of fundamental rights.
    • The right to approach the SC under Article 32 is in itself a fundamental right.
    • Nor did the SC craft any distinction on the basis of the status or affiliation of the accused in TT Antony.
    • Second, the bench said that she has not unconditionally apologised for her remarks and her political clout is apparent from the fact that she has not been arrested despite an FIR being filed against her.
    • This view is again misplaced. Whether or not the person has tendered an apology is not germane to the issue at hand.
    • Seeking or tendering an apology may be a mitigating factor while deciding punishment but only after the guilt is proved.

    Why the multiple FIRs should be consolidated

    • Abuse of statutory power of investigation: Filing of successive FIRs amounts to an abuse of statutory power of investigation and is a fit case for the SC to exercise its writ powers under Article 32 because high courts cannot transfer cases from one state to another.
    • Wastage of state resources and judicial time: Prudence demands that state resources and judicial time are not spent on a multiplicity of proceedings.
    • The multiplicity of proceedings would result in violation of fundamental rights under Article 21 as parallel investigations would result in her being forced to join investigations in different police stations in different states.
    • This serves no practical purpose because ultimately it is only one of the police reports that would be tried by a court of law.

    Conclusion

    In the absence of strict guidelines, some degree of caution is necessary on the part of judges to work within the confines of judicial propriety.

     

  • Parliamentary language in the digital age

    Context

    Language not only changes across region but also profession. Similarly, Parliament, too, has its own list of absurd and archaic phrases.

    Debate over expunged words

    • Today there is much debate on language again after the Lok Sabha Secretariat compiled a list of 151 words, which have been expunged in 2021 and 2020 in Parliaments across the Commonwealth countries and State Assemblies in India.
    • Many of these words may look harmless, but in a heated exchange between parliamentarians, they may not exactly be virtuous.
    • The current compilation has especially caused consternation among Opposition parties which see this as an attempt to restrict their vocabulary.
    • The government argues that this list is at best only “instructive” and not “definitive”.
    • The preface of the document states that the context in which these words were used is far more important than the words themselves.
    • Ultimately, the final call of whether a word is “unparliamentary” or not lies with the presiding officer of the House.
    • In the first two decades of the Indian Parliament, English was the primary language used for parliamentary work.
    • This changed as the social composition of Parliament changed from the 1970s onwards.
    • At present, as many as 30 languages are used by parliamentarians during speeches, with many insisting on speaking their mother tongue during crucial debates.
    • Perhaps, the next such compilation will also have words expunged from different regional languages.

    Challenges in digital age

    •  The proceedings of both Houses of Parliament are relayed in real time on TV channels and YouTube.
    • There have been instances where live transmission has been halted on the Chair’s orders.
    • To circumvent this, many members have recorded the proceedings on their mobile phone cameras.
    • There are many instances of the Chair intervening and expunging words or phrases that it finds “objectionable”.
    • Herein lies the problem. The order of the Chair is often relayed by late evening to reporters, but by then, the video clip would have already been circulated many times over.
    • Print reporters are careful and abide by the orders, but in a digital ecosystem, this is not easy.

    Conclusion

    The problems posed to the Parliament in terms of language and words should be dealt with keeping in focus the freedom of speech of the members.

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  • Fundamental Duties

    The Supreme Court has allowed the Centre’s request for two months’ time to file a reply to a petition seeking the enforcement of fundamental duties of citizens, including patriotism and unity of nation, through “comprehensive, and well-defined laws”.

    Why in news?

    • The need to enforce fundamental duties arises due to new illegal trend of protest by protesters in the garb of freedom of speech and expression.
    • Vandalism, blocking of road and rail routes in order to compel the government to meet their demands is a sheer violation of the FDs which are generally not enforceable.

    What are Fundamental Duties?

    • The fundamental duties of citizens were added to the constitution by the 42nd Amendment in 1976, upon the recommendations of the Swaran Singh Committee.
    • It basically imply the moral obligations of all citizens of a country and today, there are 11 fundamental duties in India, which are written in Part IV-A of the Constitution, to promote patriotism and strengthen the unity of India.
    • The FDs obligate all citizens to respect the national symbols of India, including the constitution, to cherish its heritage, preserve its composite culture and assist in its defence.
    • They also obligate all Indians to promote the spirit of common brotherhood, protect the environment and public property, develop scientific temper, abjure violence, and strive towards excellence in all spheres of life.

    Judicial interpretation of FDs

    • The Supreme Court has held that FDs are not enforceable in any Court of Law.
    • It ruled that these fundamental duties can also help the court to decide the constitutionality of a law passed by the legislature.
    • There is a reference to such duties in international instruments such as the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights, and Article 51A brings the Indian constitution into conformity with these treaties.

    Total FDs

    • Originally ten in number, the fundamental duties were increased to eleven by the 86th Amendment in 2002.

    The 10 fundamental duties are as follows:

    1. To oblige with the Indian Constitution and respect the National Anthem and Flag
    2. To cherish and follow the noble ideas that inspired the national struggle for freedom
    3. To protect the integrity, sovereignty, and unity of India
    4. To defend the country and perform national services if and when the country requires
    5. To promote the spirit of harmony and brotherhood amongst all the people of India and renounce any practices that are derogatory to women
    6. To cherish and preserve the rich national heritage of our composite culture
    7. To protect and improve the natural environment including lakes, wildlife, rivers, forests, etc.
    8. To develop scientific temper, humanism, and spirit of inquiry
    9. To safeguard all public property
    10. To strive towards excellence in all genres of individual and collective activities

    The 11th fundamental duty which was added to this list is:

    1. To provide opportunities for education to children between 6-14 years of age, and duty as parents to ensure that such opportunities are being awarded to their child. (86th Amendment, 2002)

     

    Try this PYQ:

    Which of the following is/are among the Fundamental Duties of citizens laid down in the Indian Constitution?

    1. To preserve the rich heritage of our composite culture
    2. To protect the weaker sections from social injustice
    3. To develop the scientific temper and spirit of inquiry
    4. To strive towards excellence in all spheres of individual and collective activity.

    Select the correct answer using the codes given below:

    (a) 1 and 2 only

    (b) Only 2

    (c) 1, 3 and 4 only

    (d) 1, 2, 3 and 4

     

    [wpdiscuz-feedback id=”rxuthe9v1b” question=”Please leave a feedback on this” opened=”1″]Post your answers here.[/wpdiscuz-feedback]

     

     

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  • What kind of President does India need?

    Context

    India is going to elect its new President on July 18. The new President will be sworn in on July 25. Choosing the presidential candidate is an intensely political exercise.

    Election of the President

    • Direct or indirect election: The main question debated therein was whether India should have a directly elected President or an indirectly elected one.
    • The Assembly opted for an indirectly elected President.
    • Dr. B.R. Ambedkar said: “Our President is merely a nominal figurehead. He has no discretion; he has no powers of administration at all.”
    • Article 53 of the Constitution says that “the executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.”
    • It means the President exercises these powers only on the aid and the advice of the Council of Ministers.

    People’s presence in the election of the President

    • It is an indirect election in the sense that the people do not directly elect the President.
    • Under Article 54, the President is elected by an electoral college consisting of only the elected members of both Houses of Parliament and the elected members of the State and Union Territory Assemblies.
    • A matter of importance in this context is the vote value of Members of the Legislative Assemblies (MLAs) and the formula for its computation.
    •  The vote of an MLA, though one, is assigned a certain higher value.
    • This value is calculated by first dividing the total population of the State (as per the 1971 Census) by the total strength of the Assembly, and then the quotient is divided by one thousand.
    •  In the computation of the value, the population of the State figures in a significant way.
    •  In other words, the population of the country is a crucial factor in the election of the President, which means the people’s presence in the process of electing the President is very much visible.

    Moral authority of the President

    • Wider base: The people’s presence in the election of the President gives a wider base to the President than a mere vote by the legislators on the basis of one member, one vote.
    • This also gives the President a greater moral authority.
    • So, the Indian President is not and cannot be a mere rubber stamp.
    • Reconsideration of decision: He does not directly exercise the executive authority of the Union, but he can disagree with the decision of the Council of Ministers, caution them, counsel them, and so on.
    • The President can ask the Cabinet to reconsider its decisions.
    • However, the Cabinet, after such reconsideration, sends the same proposal back without any change, the President will have to sign it.

    Role of the President as envisage by the Constitution

    • Broader view of the things: The Constitution of India wants the President to be vigilant and responsive, and gives the freedom to him or her to take a broader view of things uninfluenced by the narrow political view of the executive.
    • Preserve, protect and defend the Constitution: The above point becomes clearer when we take a look at the oath the President takes before entering office.
    • The oath contains two solemn promises.
    • First, the President shall preserve, protect and defend the Constitution.
    • Second, the President shall devote himself or herself to the service and the well-being of the people of India.
    • Thus, it is possible for a President to disagree with the government or intervene on behalf of the citizenry against the tyranny of the executive and persuade it to give up its ways.

    Conclusion

    The method adopted for the election of the President and the promises made in the oath makes it clear that the President cannot act as a gramophone of the Prime Minister as mentioned by professor K.T. Shah.

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  • Election Symbol Disputes and ECI

    A political party in Maharashtra has approached the Election Commission of India (ECI), requesting it to hear its side before deciding claims to the party’s bow-arrow symbol.

    What is the news?

    • A party has lost a large number of members in the rebellion that eventually caused the fall of the government in Maharashtra.
    • The rebel has claimed to be the only original leader of the party on the basis of the support of more than two-thirds of the party’s legislators in the Maharashtra Assembly.

    Options for ECI

    • The ECI in all likelihood can freeze the symbol so that neither of the two sides is able to use it until a final decision is made.
    • EC hearings are long and detailed, and may take at least six months.

    EC’s powers in Election Symbol Dispute

    • The question of a split in a political party outside the legislature is dealt by Para 15 of the Symbols Order, 1968.
    • It states that the ECI may take into account all the available facts and circumstances and undertake a test of majority.
    • The decision of the ECI shall be binding on all such rival sections or groups emerged after the split.
    • This applies to disputes in recognised national and state parties.
    • For splits in registered but unrecognised parties, the EC usually advises the warring factions to resolve their differences internally or to approach the court.

    How did the EC deal with such matters before the Symbols Order came into effect?

    • Before 1968, the EC issued notifications and executive orders under the Conduct of Election Rules, 1961.
    • The most high-profile split of a party before 1968 was that of the CPI in 1964.
    • A breakaway group approached the ECI in December 1964 urging it to recognise them as CPI(Marxist). They provided a list of MPs and MLAs of Andhra Pradesh, Kerala and West Bengal who supported them.
    • The ECI recognised the faction as CPI(M) after it found that the votes secured by the MPs and MLAs supporting the breakaway group added up to more than 4% in the 3 states.

    What was the first case decided under Para 15 of the 1968 Order?

    • It was the first split in the Indian National Congress in 1969.
    • Indira Gandhi’s tensions with a rival group within the party came to a head with the death of President Dr Zakir Hussain on May 3, 1969.

    Is there a way other than the test of majority to resolve a dispute over election symbols?

    • In almost all disputes decided by the EC so far, a clear majority of party delegates/office bearers, MPs and MLAs have supported one of the factions.
    • Whenever the EC could not test the strength of rival groups based on support within the party organisation (because of disputes regarding the list of office bearers), it fell back on testing the majority only among elected MPs and MLAs.

    What happens to the group that doesn’t get the parent party’s symbol?

    • The EC in 1997 did not recognise the new parties as either state or national parties.
    • It felt that merely having MPs and MLAs is not enough, as the elected representatives had fought and won polls on tickets of their parent (undivided) parties.
    • The EC introduced a new rule under which the splinter group of the party — other than the group that got the party symbol — had to register itself as a separate party.
    • It could lay claim to national or state party status only on the basis of its performance in state or central elections after registration.

     

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  • Bail Law and Supreme Court call for Reform

    The Supreme Court underlined the pressing need for reform in the law related to bail and called on the government to consider framing a special legislation on the lines of the law in the United Kingdom.

    What is Bail?

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

    Types of Bail in India

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

    Conditions for Grant of Bail in Bailable Offences

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

    Conditions for Grant of Bail in Non-Bailable Offences

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

    What is the recent ruling about?

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

    Why bail needs reform?

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

    What is the law on bail?

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

    And what is the UK law?

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

    What has the Supreme Court held on reforms?

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

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

     

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  • Reasons for splits and switches in political parties

    Context

    In Maharashtra, recently, and in Madhya Pradesh, a while ago, splits in the ruling party and a subsequent realignment of legislators inaugurated new governments.

    Challenges to the effectiveness of anti-defection law

    • Splits and switches are commonplace in legislatures across the globe, and India has witnessed at least three distinct waves.
    • The first wave occurred towards the latter half of the 1960s when challengers to the Congress attempted to displace it in the States.
    • An attempt to end defections: The next phase was inaugurated with an attempt to end the free movement and regulate the behaviour of legislators through the anti-defection law.
    • Law incentivise collective defection: While the law discouraged individual movement, it incentivised a collective movement of legislators since it laid down specific numbers to legitimise and validate party switches.
    • Defeating the purpose: When legislators switch in groups, the costs are shared, and the move also appears less opportunistic, which in many ways defeats the purpose of the legislation.
    • The third phase was inaugurated in 2014 when already-dominant parties began to use splits and switches to weaken and destroy their competitors.
    • Therefore, the current phase is bizarre when compared to the past because dominant parties appear to be actively cheering splits and shifts and having no respect for the basic rules of the game.
    • The anti-defection law and control of institutions are now weaponised by dominant parties to intervene in the internal working of Opposition parties, and sometimes make and break them.
    • Furthermore, legislators are switching support even if it does not count to the making or maintenance of governments.

    Argument against the split

    • Violation of trust: Switchers violate the trust relationship with their constituents as voters get something other than what they bargained for.
    • Difficulty in ensuring accountability: Assuming voters vote for parties and not candidates, the argument is that uncohesive parties make it difficult for voters to draw definitive lines of responsibility.
    • Consequently, it is difficult for voters to hold party governments accountable for their actions during elections.

    Why do legislators split and switch parties?

    • Changes and transformation in parties: While we keep track of party system change, we ignore the point that the component parts, parties which make up the system, too change and transform.
    • Parties constantly adapt new modes to sustain and find success for themselves.
    • Our popular image of a party is that of the classical mass party, which rises from societal movements and is essentially internally democratic.
    • This is what even the Election Commission of India imagines a party should be since many of its guidelines lay stress on the ‘democratic spirit’ and the need for transparency and participation in internal decision-making.
    • Centralised structure: Today’s parties are centralised vote-getting machines which primarily work to ensure the return of political leaders to office.
    • Focus on getting votes: Mass inputs and ideas do not matter, and it is the central leadership that counts. All party activities begin and end with elections.
    • Since parties are mainly concerned with electoral success, anyone who enjoys the confidence of the top leadership and can help increase the seat share is likely to get a ticket.
    • Dominance of financial power: Moreover, we now know that parties prefer candidates who bring in their own money, fund other candidates and raise resources for the party. All this puts the party on the ground in the shade.
    • Closeness of parties to state: the most significant change is that parties are more closely aligned with the state rather than civil society.
    • Parties as a source of services: Parties exchange material and psychological rewards, and goods and services the state provides for electoral advantage.
    • Voters also see parties as a supplier of services.
    • This connection pushes legislators and parties to be in government or at least close to the government.
    • On the supply side, the party on the ground no longer calls the shots; parties are election vehicles and a supplier of services. The party bond exists only as long as it ensures success for the legislator
    •  On the demand side, the voter does not appear to have any problem, as long as “services” are available.

    Conclusion

    Splits and switches are not seen as objectionable by legislators and are not punished by voters as well. Legislators will, therefore, be willing to do anything if the benefits exceed the costs.

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  • Parliamentary Committee opposes Mediation Bill

    The Parliamentary Standing Committee on Law and Justice has recommended substantial changes to the Mediation Bill.

    Mediation Bill, 2021

    • Mediation is a voluntary dispute resolution process.
    • It is an informal, confidential, flexible, and non-binding process in which an impartial person called a “mediator” helps the parties to understand the interests of everyone involved, and their practical and legal choices.
    • The Bill requires persons to try to settle civil or commercial disputes through mediation before approaching any court or tribunal.
    • Agreements resulting from mediation will be binding and enforceable in the same manner as court judgments.

    Key features of the Bill

    (1) Pre-litigation mediation

    • Parties must attempt to settle civil or commercial disputes by mediation before approaching any court or certain tribunals.
    • Even if they fail to reach a settlement through pre-litigation mediation, the court or tribunal may at any stage refer the parties to mediation if they request for the same.

    (2) Disputes not fit for mediation

    • The Bill contains a list of disputes which are not fit for mediation.
    • These include disputes: (i) relating to claims against minors or persons of unsound mind, (ii) involving criminal prosecution, and (iii) affecting the rights of third parties.
    • The central government may amend this list.
    • It will apply to mediations conducted in India: (i) involving only domestic parties, (ii) involving at least one foreign party and relating to a commercial dispute (i.e., international mediation).

     (3) Mediation process

    • Mediation proceedings will be confidential, and must be completed within 180 days (may be extended by 180 days by the parties).
    • A party may withdraw from mediation after two sessions.
    • Court annexed mediation must be conducted as per the rules framed by the Supreme Court or High Courts.

    (4) Mediators

    • Mediators may be appointed by: (i) the parties by agreement, or (ii) a mediation service provider (an institution administering mediation).
    • They must disclose any conflict of interest that may raise doubts on their independence.
    • Parties may then choose to replace the mediator.

    (5) Mediation Council of India

    • The central government will establish the Mediation Council of India.
    • The Council will consist of a chairperson, two full-time members (with experience in mediation or ADR), three ex-officio members (including the Law Secretary, and the Expenditure Secretary), and a part-time member from an industry body.
    • Functions of the Council include: (i) registration of mediators, and (ii) recognising mediation service providers and mediation institutes (which train, educate, and certify mediators).

    (6) Mediated settlement agreement

    • Agreements resulting from mediation (other than community mediation) will be final, binding, and enforceable in the same manner as court judgments.
    • They may be challenged on grounds of: (i) fraud, (ii) corruption, (iii) impersonation, or (iv) relating to disputes not fit for mediation.

    (7) Community mediation

    • This may be attempted to resolve disputes likely to affect the peace and harmony amongst residents of a locality.
    • It will be conducted by a panel of three mediators (may include persons of standing in the community, and representatives of resident welfare associations).

    Issues highlighted by the Parliamentary Committee

    • Compulsion: The panel cautioned against making compulsory pre-litigation mediation.
    • Scope for Delay: Making pre-litigation mediation mandatory may actually result in delaying of cases.
    • Judicial intervention: The provision to give higher courts the power to frame rules for mediation was also questioned.
    • Narrower scope: The members questioned the non-applicability of the provisions to non-commercial disputes involving the Government and its agencies.
    • No bar of experienced professionals: The MCI, established to regulate the profession of mediators, may not have representation of practising mediators with adequate experience.
    • Prior approval from centre: The MCI requires prior approval from the central government before issuing regulations related to its essential functions.  It is not clear why such prior approval is required.
    • Domestic conduct of mediation: The Bill applies to international mediations only if they are conducted in India and not outside.

    Why need a law on Mediation?

    • Fast: Because the amount of time necessary for the parties and therefore the Mediator to organize for the mediation is significantly way less as that needed for trial or arbitration, a mediation of dispute can occur relatively early.
    • Flexible: There exists no set formula for mediation. Different Mediators employ different styles. Procedures are often modified to satisfy the requirements of a specific case.
    • Cost Efficient: Because mediation generally requires less preparation, is very less formal than trial or arbitration, and may occur at an early stage of the dispute.
    • Brings Parties Together: Parties can save and sometimes rebuild their relationship like during a family dispute or commercial dispute.
    • Convenient: The parties can control the time, location, and duration of the proceedings to large extent. Scheduling isn’t subject to the convenience of courts.
    • Creative: Resolutions that aren’t possible through arbitration or judicial determination could also be achieved.
    • Confidential: What’s said during mediation are often kept confidential. Parties wishing to avoid the glare of publicity can use mediation to stay their disputes low-key and personal
    • Control: The parties control the result of the mediation and either party has the advantage of terminating the mediation, if it’s felt that it’s not within the interest of the said party.

     

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  • In news: Pardoning Power of the President

    The Supreme Court has held that the Centre was “bound to advise” the President to remit the life sentence of gangster Abu Salem in the 1993 Mumbai blasts case on his completion of 25 years of his jail term.

    What did the SC say?

    • On the appellant completing 25 years of his sentence, the Central government is bound to advise the President for the exercise of his powers under Article 72 of the Constitution.
    • The Centre could itself consider remission on the completion of 25 years’ sentence in terms of Sections 432 and 433 of the Code of Criminal Procedure.

    What is Pardon?

    • A pardon is a government/executive decision to allow a person to be absolved of guilt for an alleged crime or other legal offense as if the act never occurred.

    Why need Pardon?

    • Pardons can be granted when individuals are deemed to have demonstrated that they have “paid their debt to society”, or are otherwise considered to be deserving of them.
    • Pardons are sometimes offered to persons who were either wrongfully convicted or who claim that they were wrongfully convicted.
    • Pardons are sometimes seen as a mechanism for combating corruption, allowing a particular authority to circumvent a flawed judicial process to free someone that is seen as wrongly convicted.

    What is the Article 72?

    • Article 72 says that the president shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offense.
    • There are five different types of pardoning:
    1. Pardon: means completely absolving the person of the crime and letting him go free. The pardoned criminal will be like a normal citizen.
    2. Commutation: means changing the type of punishment given to the guilty into a less harsh one, for example, a death penalty commuted to a life sentence.
    3. Reprieve: means a delay allowed in the execution of a sentence, usually a death sentence, for a guilty person to allow him some time to apply for Presidential Pardon or some other legal remedy to prove his innocence or successful rehabilitation.
    4. Respite: means reducing the quantum or degree of the punishment to a criminal in view of some special circumstances, like pregnancy, mental condition etc.
    5. Remission: means changing the quantum of the punishment without changing its nature, for example reducing twenty year rigorous imprisonment to ten years.

    Cases as specified by art. 72

    In all cases where the punishment or sentence:

    • is by a court-martial
    • is for an offence against any law relating to a matter to which the executive power of the Union extends
    • is a sentence of death

    Nature of the Pardoning Power

    • The pardoning power of the president is not absolute. It is governed by the advice of the Council of Ministers.
    • This has not been discussed by the constitution but is the practical truth.
    • Further, the constitution does not provide for any mechanism to question the legality of decisions of presidents or governors exercising mercy jurisdiction.
    • But the SC in Epuru Sudhakar Case has given a small window for judicial review of the pardon powers of President and governors for the purpose of ruling out any arbitrariness.
    • The court has earlier held that court has retained the power of judicial review even on a matter which has been vested by the Constitution solely in the Executive.

    Some traditions

    • It is important to note that India has a unitary legal system and there is no separate body of state law.
    • All crimes are crimes against the Union of India.
    • Therefore, a convention has developed that the governor’s powers are exercised for only minor offenses.
    • While requests for pardons and reprieves for major offenses and offenses committed in the UTs are deferred to the President.

    Try this PYQ:

    Who/Which of the following is the custodian of the Constitution of India?

    (a) The President of India

    (b) The Prime Minister of India

    (c) The Lok Sabha Secretariat

    (d) The Supreme Court of India

     

    [wpdiscuz-feedback id=”crdo8vqaam” question=”Please leave a feedback on this” opened=”1″]Post your answers here.[/wpdiscuz-feedback]

     

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  • KHADC to invite talks on Instrument of Accession

    The Khasi Hills Autonomous District Council (KHADC) in Meghalaya has called for a meeting of traditional heads to revisit the Instrument of Accession that made the Khasi domain a part of the Indian Union.

    About KHADC

    • KHADC is an autonomous district council in the state of Meghalaya in India.
    • It is one of the three autonomous district councils within Meghalaya, and one of twenty-five autonomous regions of India.
    • Meghalaya is divided into three regions dominated by as many matrilineal communities — the Khasis, Garos and Jaintias.
    • The Khasi hills straddle 25 Himas or States that formed the Federation of Khasi States.

    Why in news?

    • Some members of the KHADC agreed that the Instrument of Accession and Annexed Agreement signed with the Dominion of India between December 15, 1947 and March 19, 1948, should be studied.
    • The treaty was signed by Governor General of India, Chakravarti Rajagopalachari, on August 17, 1948.

    What is Instrument of Accession?

    • It was a legal document first introduced by the Government of India Act, 1935.
    • It was used in 1947 to enable each of the rulers of the princely states under British paramountcy to join one of the new dominions of India or Pakistan created by the Partition.
    • The instruments of accession executed by the rulers, provided for the accession of states to the Dominion of India (or Pakistan) on three subjects, namely, defence, external affairs and communications.

    Back2Basics: Autonomous District Council (ADC)

    • The Sixth Schedule of the Indian Constitution allows for the formation of autonomous administrative divisions which have been given autonomy within their respective states.
    • Most of these ADC are located in North East India with the exception of two in Ladakh and one in West Bengal.
    • Presently, 10 Autonomous Councils in Assam, Meghalaya, Mizoram and Tripura are formed by virtue of the Sixth Schedule with the rest being formed as a result of other legislations.

    Powers and competencies

    (1) Executive and legislative powers

    Under the provisions of the Sixth Schedule, ADCs can make laws, rules and regulations in the following areas:

    • Land management
    • Forest management
    • Water resources
    • Agriculture and cultivation
    • Formation of village councils
    • Public health
    • Sanitation
    • Village and town level policing
    • Appointment of traditional chiefs and headmen
    • Inheritance of property
    • Marriage and divorce
    • Social customs
    • Money lending and trading
    • Mining and minerals

    (2) Judicial powers

    • ADCs have powers to form courts.
    • They can hear cases where both parties are members of Scheduled Tribes (STs) and the maximum sentence is less than 5 years in prison.

    (3) Taxation and revenue

    • Autonomous district councils have powers to levy taxes, fees and tolls on: building and land, animals, vehicles, boats, entry of goods into the area, roads, ferries, bridges, employment and income and general taxes for the maintenance of schools and roads.

     

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