đŸ’„Join UPSC 2027,2028 Mentorship (July Batch) + XFactor Notes & Microthemes PDF
Talk to Mentor

Civilsdaily

Login

Subject: Polity

  • Upper House, a question

    Context

    This article seeks to re-articulate a question pertaining to the composition of the Council of States.

    Historical background and CAD over the issue of second chamber

    • Lokanath Misra led the charge against a federal second chamber in the Constituent Assembly stating that there was not need for the second chamber and also that it will not serve any useful purpose.
    • Shibban Lal Saksena, was equally emphatic: He said that as per their experience, the Upper House acts as a clog in the wheel of progress.
    • They were not the only ones who had concerns. Other members expressed them too in different contexts during the Constituent Assembly debate on draft Article 67.

    Issues with the role of Rajya Sabha

    • Unable to protect the interest of the States: Article 1(1) of the Indian Constitution states “India, that is Bharat, shall be a Union of States.”
    • Therefore, the primary responsibility of a Council of States would be to protect the interests of the states vis a vis the Union.
    • There is hardly any empirical evidence that substantiates that the Rajya Sabha has measured upto the task ever since it came into existence on April 3r 1952.
    • No focus on states: From 1952 to 2003, at least there was a veneer of a state focus when it was mandatory that any citizen desirous of contesting a Rajya Sabha election had to be an elector from that particular state.
    • By amending Section 3(1) of the Representation of People’s Act 1952 and doing away with the domicile requirement, the Government removed this fig leaf also in 2003.
    •  A five-judge bench did not uphold tha challenge to this judgement.
    •  This amendment and the subsequent judgment buried the earlier practice of individuals entering the Rajya Sabha from anywhere based upon rather dodgy but still some form of domicile credentials.
    • All states do not have bicameral legislature: Twenty-four states have unicameral legislatures, that is, only one legislative body, and only six states are bicameral.
    • If the bulk of the states can make do with one House why not the Centre?
    • Rajya Sabha as continuous house argument: It is also argued that the Rajya Sabha is a continuous House as opposed to the Lok Sabha that gets mandatorily dissolved every five years if not sooner.
    • That can be fixed with a simple amendment to Article 83 (2) that should state that “Lok Sabha would remain in existence till the time its successor body/house is not constituted.
    • Article 83 (1) would stand deleted and consequential amendments can be carried out to other parts of the Constitution.

    Conclusion

    It would be instructive to keep in mind that the Basic Structure doctrine enunciated by the Supreme Court in Re: Kesvananda Bharti holds parliamentary democracy to be basic structure, not bicameralism.

    UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)

  • Group wants new order on MGNREGA workers revoked

    Certain groups has asked to discontinue manual attendance for Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS) work sites with more than 20 workers and use a mobile phone-based application.

    What is MGNREGA?

    • The MGNREGA stands for Mahatma Gandhi National Rural Employment Guarantee Act of 2005.
    • This is labour law and social security measure that aims to guarantee the ‘Right to Work’.
    • The act was first proposed in 1991 by P.V. Narasimha Rao.

    Features of the scheme

    • MGNREGA is unique in not only ensuring at least 100 days of employment to the willing unskilled workers, but also in ensuring an enforceable commitment on the implementing machinery i.e., the State Governments, and providing a bargaining power to the labourers.
    • The failure of provision for employment within 15 days of the receipt of job application from a prospective household will result in the payment of unemployment allowance to the job seekers.
    • Employment is to be provided within 5 km of an applicant’s residence, and minimum wages are to be paid.
    • Thus, employment under MGNREGA is a legal entitlement.

    What is so unique about it?

    • MGNREGA is unique in not only ensuring at least 100 days of employment to the willing unskilled workers, but also in ensuring an enforceable commitment on the implementing machinery i.e., the State Governments, and providing a bargaining power to the labourers.
    • The failure of provision for employment within 15 days of the receipt of job application from a prospective household will result in the payment of unemployment allowance to the job seekers.
    • Any Indian citizen above the age of 18 years who resides in rural India can apply for the NREGA scheme. The applicant should have volunteered to do unskilled work.
    • Employment is to be provided within 5 km of an applicant’s residence, and minimum wages are to be paid.
    • Thus, employment under MGNREGA is a legal entitlement.

    Answer this PYQ in the comment box:

    Q.Among the following who are eligible to benefit from the “Mahatma Gandhi national rural employment guarantee act”?

    (a) Adult members of only the scheduled caste and scheduled tribe households.

    (b) Adult members of below poverty line (BPL) households.

    (c) Adult members of households of all backward communities.

    (d) Adult members of any household.

     

     

    [wpdiscuz-feedback id=”vp15cpmv62″ question=”Please leave a feedback on this” opened=”1″]Post your answers here.[/wpdiscuz-feedback]

     

    UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)

  • Anti-defection Law

    The unfolding political crisis in Maharashtra has thrown the spotlight on the anti-defection law, and the roles of the Deputy Speaker and the Governor.

    What is the news?

    • Some legislators have aligned themselves with the party’s rebel leader and are camping in Guwahati.
    • The party has warned its MLAs that their absence from the meeting would lead to the presumption they wanted to leave the political party.
    • And this would therefore lead to action against them under the anti-defection law.

    What is the Anti-Defection Law?

    • The anti-defection law provides for the disqualification of MLAs who, after being elected on the ticket of a political party, “voluntarily give up their party membership”.
    • The Supreme Court has interpreted the term broadly and ruled an MLA’s conduct can indicate whether they have left their party.
    • The law is also applicable to independent MLAs.
    • But the anti-defection law does not apply if the number of MLAs who leave a political party constitute two-thirds of the party’s strength in the legislature.
    • These MLAs can merge with another party or become a separate group in the legislature.

    How does the two-thirds rule work in the current situation in Maharashtra?

    • Reports indicate that 30 MLAs are with rebel leader.
    • Taking this number at face value means it does not reach the two-thirds (37) mark of the 55 MLAs the party has in the Maharashtra Assembly.
    • Therefore, the protection under the anti-defection law would not be available to the rebel group.

    What adds more to this high-stage political drama?

    • It is the Assembly Speaker who decides whether an MLA has left a party or a group that constitutes two-thirds of a party.
    • The position of the Speaker of the Maharashtra Assembly is, however, currently vacant.
    • Article 180(1) of the Constitution states that the Deputy Speaker performs the Speaker’s duties when the office is vacant.
    • Since then, the Deputy Speaker has been acting as the Speaker.

    How would a decision be taken whether the anti-defection law applies in this case?

    Under the current circumstances, two ways would lead to adjudication under the law.

    (1) Approaching the acting Speaker to file defection petition

    • First, any MLA of the Assembly can petition that certain MLAs have defected from their political party.
    • Such a petition has to be accompanied by documentary evidence.
    • The Deputy Speaker would then forward the petition to the MLAs against whom their colleagues are making the charge of defection.
    • The MLAs would have seven days or such time that the Deputy Speaker decides is sufficient to enable them to put across their side of the story.

    (2) Proving of two-third majority

    • Rebel leader and MLAs supporting too can write to the Deputy Speaker with evidence claiming that they represent two-thirds of the strength and claim protection under the anti-defection law.
    • In either case, Speakers will decide the matter after hearing all parties, which could take time.

    How much time does it usually take? Why delay occurs?

    • In recent years, one of the fastest decisions in a defection proceeding was delivered by Rajya Sabha Chairman Venkaiah Naidu.
    • However in state legislatures, defection petitions have taken much longer.
    • For example, in 2020, the Supreme Court used its extraordinary power to remove a Manipur minister from his position.
    • But whether the Speaker decides quickly or takes time, the Speaker is usually challenged in court, which further delays the decision.
    • Both Venkaiah Naidu and the Supreme Court have recommended that Speakers decide on defection cases in three months.

    What is the Governor’s role?

    (1) Declaration of Presidents Rule (NA)

    • The Governor has a crucial role when there is political instability in a state.
    • Before 1994, Governors were quick to dismiss a state government, charging that it did not have a majority in the state legislature and recommending the imposition of the President’s rule in the state.
    • But the Supreme Court ended this practice with its judgment in the S R Bommai case in 1994.

     (2) Holding Assembly

    • In this landmark case, the court ruled that the place for deciding whether a government has lost its majority was in the legislature.
    • Hence, Maharashtra Governor can ask Chief Minister to convene the Assembly and prove his majority on the floor of the House.

     (3) Governors Discretion

    • The CM can recommend to the Governor to dissolve the legislature before the end of its five-year term and call for elections under Article 174(2)(b).
    • Here, the Governor’s discretion comes into play.
    • The Governor may choose not to dissolve the legislature.
    • This is when if he or she believes that the recommendation is coming from a council of ministers who do not enjoy the confidence of the state legislature.

    Note: In 2020, the Supreme Court, in Shivraj Singh Chouhan & Ors versus Speaker, MP Legislative Assembly & Ors, upheld the powers of the Speaker to call for a floor test if there is a prima facie view that the government has lost its majority.

    (4) Floor test

    • Under Article 175(2), the Governor can summon the House and call for a floor test to prove whether the government has the numbers.
    • In a detailed judgment, the Court also explained the scope of the power of the Governor and the law revolving around floor tests.
    • When the House is in session, it is the Speaker who can call for a floor test.
    • But when the Assembly is not in session, the Governor’s residuary powers under Article 163 allow him to call for a floor test.

    Conclusion

    • The spectacle of rival political parties whisking away their MLAs to safe destinations does little credit to the state of our democratic politics.
    • It is an unfortunate reflection on the confidence which political parties hold in their own constituents and a reflection of what happens in the real world of politics.
    • Political bargaining, or horse-trading, as we noticed, is now an oft repeated usage in legal precedents.

     

    UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)

  • Judicial Reforms in India

    Context

    Following are the reforms needed in the various aspects of the higher judiciary

    Removing the disparity between retirement ages of HC and SC judges

    • High Court judges now retire at 62 and Supreme Court judges at 65.
    • It is high time that we did away with the disparity between the retirement ages of High Court and Supreme Court judges.
    • There is no good reason for this difference.
    • Intense pressure and competition: The obvious negative fallout of a differential retirement age simply is intense pressure and competition to make it to the top court and thus get three more years.
    • If this is done away with, several judges of mettle would prefer to be Chief Justices and senior judges in the High Courts exercising wide power of influence rather than being a junior judge on a Bench of the Supreme Court.
    • There is good work to be done in the High Courts, and we need good men there.

    Create a cadre of public service for retired judges

    • SeveralSupreme Court judges focus on arbitrations after retirement.
    • A minority of judges devote themselves to public service; sadly, this is a very small minority.
    • Another lot are appointed to various constitutional posts and tribunals and commissions.
    • It would be worthwhile reform to create a cadre of public service for retired judges and from this pool make appointments to the constitutional and statutory posts and special assignments.
    • Such judges should receive the full pay and the facilities of a judge of the Supreme Court for life.
    • We should have a culture of public service for senior judges, and those who do not fit in such culture should not be a part of senior ranks.

    Reform in the process of appointment of Chief Justice of India

    • No constitutional basis: It is generally assumed that the seniormost judge of the Supreme Court should be the Chief Justice of India.
    • The Constitution mandates no such thing.
    • Article 124 merely states that the President will appoint every judge of the Supreme Court, and this includes the Chief Justice, and each of these judges shall hold office until they attain the age of 65 years.
    • The requirement about appointing the seniormost judge to be the CJI was devised in the Second Judges case (1993) and the consequent Memorandum of Procedure which is an usurpation of the President’s power.
    • There is no good reason why any one particular person should have a vested interest in the top job, and we are better served by eliminating such expectation.
    • Let all serve equally under the constitutional throne for the entire length of their tenure.

    But who then shall be the CJI?

    • As per the Constitution the judges of the High Court, senior advocates and distinguished jurists are eligible for the appointment as the judge of the Supreme Court.
    • Chief Justice of HC: When a serving CJI retires, his successor should be the best reputed Chief Justice of a High Court who has proved himself worthy both in judicial office as well as administrative leadership and has those qualities of heart and head which mark a good leader.
    • The same process is followed in the appointment of the Chief Justice of the United States Supreme Court.
    • Security of tenure: The appointee should have a clear three-year term.
    • He should not function as the primus super pares — calling the shots and having their unfettered way.
    • He should instead function in a true collegiate manner, especially in regard to the roster of allotment of cases, especially the sensitive ones, and appointments to the Supreme Court and High Courts and other important matters of judicial and administrative importance.

    Conclusion

    Though there are several issues that need reforms in the higher judiciary, the above reforms can serve as the precursor to the other reforms to come.

    UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)

  • EC deletes 111 ‘Non-existent’ Parties from List

    The Election Commission has ordered the deletion of 111 registered unrecognized political parties that it found to be “non-existent” and referred three of the parties to the Department of Revenue for legal action for “serious financial impropriety”.

    What is the news?

    • The Representation of the People Act, 1951 provides ECI to register and de-register the political parties.
    • This was the second such action in the recent past against registered parties that have been found violating the RP Act, 1951.

    Registering a Political Party

    • The registration of all political parties is governed by the provisions of the Representation of the People Act, 1951.
    • According to the Election Commission (EC), any party seeking registration has to submit an application to the Commission within a period of 30 days.
    • This is done as per guidelines prescribed by the EC in exercise of the powers conferred by Article 324 of the Constitution and Section 29A of the RP Act, 1951.

    Note: There is no procedure available for de-registration of dormant political parties.

    Process of registration

    • The applicant is asked to publish a proposed party name in two national daily newspapers and two local daily newspapers, and provide two days for submitting objections, if any.
    • The notice for publication is also displayed on the website of the Election Commission.

    Why registering with the EC is important?

    • It is not mandatory to register with the Election Commission.
    • However, registering as a political party with the EC has its advantage in terms of intending to avail itself of the provisions of the RP Act, 1951.
    • The candidates set up by a political party registered with the EC will get preference in the matter of allotment of free symbols vis-Ă -vis purely independent candidates.
    • More importantly, these registered political parties, over course of time, can get recognition as a ‘state party’ or a ‘national party’.

    How EC recognizes a political party as a state or national party?

    For recognition as a NATIONAL PARTY, the conditions specified are:

    1. a 6% vote share in the last Assembly polls in each of any four states, as well as four seats in the last Lok Sabha polls; or
    2. 2% of all Lok Sabha seats in the last such election, with MPs elected from at least three states; or
    3. recognition as a state party in at least four states.

    For recognition as a STATE PARTY, any one of five conditions needs to be satisfied:

    1. two seats plus a 6% vote share in the last Assembly election in that state; or
    2. one seat plus a 6% vote share in the last Lok Sabha election from that state; or
    3. 3% of the total Assembly seats or 3 seats, whichever is more; or
    4. one of every 25 Lok Sabha seats (or an equivalent fraction) from a state; or
    5. an 8% state-wide vote share in either the last Lok Sabha or the last Assembly polls.

    Benefits for recognized parties

    • This is subject to the fulfilment of the conditions prescribed by the Commission in the Election Symbols (Reservation and Allotment) Order, 1968.

    (a) Reserved Symbol

    • If a party is recognised as a ‘state party’, it is entitled for exclusive allotment of its reserved symbol to the candidates set up by it in the state in which it is so recognised. If a party is recognised as a ‘national party’ it is entitled for exclusive allotment of its reserved symbol to the candidates set up by it throughout India.

    (b) Proposer for nomination

    • Recognised ‘state’ and ‘national’ parties need only one proposer for filing the nomination.

    (c) Campaigning benefits

    • They are also entitled for two sets of electoral rolls free of cost and broadcast/telecast facilities over state-owned Akashvani/Doordarshan during the general elections.

     

    UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)

  • Back in news: Central Vista Project

    The Central Vista Avenue is set to open in the next few days after remaining closed to the public since February 2021 for redevelopment.

    Central Vista Project

    • The project aims to renovate and redevelop 86 acres of land in Lutyens’s Delhi.
    • In this, the landmark structures of the government, including Parliament House, Rashtrapati Bhavan, India Gate, North Block and South Block, etc. stand.
    • This dream project of redeveloping the nation’s administrative heart was announced by the Ministry of Housing and Urban Affairs back in September 13, 2019.

    This project has three main parts:

    1. New parliament building
    2. New secretariat complex to bring all the central govt ministries in one place
    3. Development of the Rajghat and the area around it
    • This project will involve demolition of some non-heritage buildings in the area, and construction of new buildings in place of them.

    Why need this Project?

    The most significant aspect of the project is the construction of a new parliament building.  There are several reasons for needing a new building.

    • Pre Independence building: The current one was built in 1927to house the legislative council and was not intended to house a bicameral legislature that the country has today.
    • Lack of Space: The current building will be under more stress when the number of seats to Lok Sabha and Rajya Sabha are raised. Both Houses are already packed and members have to sit on plastic chairs when joint sessions are held, diminishing the dignity of the House.
    • Safety Concerns: The existing building does not conform to fire safety norms. Water and sewer lines are also haphazard and this is damaging its heritage nature. Security concerns in the wake of the 2001 Parliament attack shows its vulnerable nature. It is also not quake-proof.
    • Cost Advantage: Many central ministries are housed in different buildings with the result that the government ends up paying rent for many of them. The new building, a new central secretariat will help avoid this.
    • Environmental Benefits: The fact that people and officials have to run around the city to go to different ministries also increases traffic and pollution. The project also proposes interlinking of metro stations which will minimise use of vehicles.

    Due to these reasons, a pressing need was felt to construct a new parliament building.

    Significance of the project

    • Modernising parliament’s facilities: The new Parliament building will be India’s first purpose-designed parliament, equipped with state-of-the-art infrastructure to meet all needs of an expanded parliament.
    • Improving productivity and efficiency: All ministries of the government will be consolidated in one place and will be served by highly energy-efficient and sustainable infrastructure.
    • Strengthening cultural and recreational facilities: The National Museum will be relocated and conceptualized to present the rich heritage and achievements of the nation.
    • Providing modern and secure infrastructure: A modern, secure, and appropriately equipped executive enclave is proposed to house executive offices and facilities.
    • Providing residential facilities for the PM: Modern and secure residential facilities for the vice president and the PM are proposed to the north of North Block and south of South Block respectively.
    • Cultural significance: The overall objective of works planned on the Central Vista is to ensure environmental sustainability, restore the vista’s architectural character, protect its heritage buildings, expand and improve public space, and to extend its axis.

    Criticism

    • The Opposition, environmentalists, architects and citizens have raised many concerns even before the pandemic brought in extra issues.
      • They have questioned the lack of studies to ascertain the need for the project and its impact on the environment, traffic and pollution.
    • Several key approvals for the proposed Parliament building have been pushed during the lockdown. This led to allegations of a lack of transparency.
    • They argue that in the situation created by the pandemic, the project must be deferred as the country can’t afford it at this time.

    Back2Basics: Making of New Delhi

    • The Central Vista was designed by Edwin Lutyens and Herbert Baker, to house the capital of British India.
    • The top of the Raisina Hill and adjacent hills in the area was flattened to create space for the buildings.
    • At his coronation as Emperor of India on December 12, 1911, Britain’s King George V announced the transfer of the seat of the Government from Calcutta to the ancient Capital of Delhi.
    • Thereafter, a 20-year-long project to build modern New Delhi was spearheaded by architects Edwin Lutyens and Herbert Baker.
    • They built Parliament House, Rashtrapati Bhavan, North and South Blocks, Rajpath, India Gate, National Archives and the princes’ houses around India Gate.
    • Thus, New Delhi was unveiled in 1931.

     

    UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)

  • Parliament & Women

    Context

    Due to systemic issues, Parliament continues to alienate women. The number of women representatives is still considerably small, but even more subtly, Parliament as a workspace continues to be built exclusively for men.

    Women’s participation in the initial years

    • In 1952, when the Indian Republic held its first Parliamentary session, there were 39 strong, intelligent, and passionate women as its member.
    • Leading in the world in inclusiveness: At a time when women formed only 1.7% of the total members of the United States Congress and 1.1% of the Parliament of the United Kingdom, India was leading the way in the fight towards more inclusive world democracies with 5.5% women representation.
    • Women played an important role in India’s struggle for independence and that contribution was reflected in their presence in the parliament.
    • What happened in 1952 was a highly progressive step, but 70 years hence, it seems we have strayed from that path.

    Electoral representation of women in India: Current scenario

    • 14.6 per cent in current Lock Sabha: In India, women currently make up 14.6 per cent of MPs (78 MPs) in the Lok Sabha, which is a historic high.
    • Although the percentage is modest, it is remarkable because women barely made up 9 per cent of the overall candidates in 2019.
    • In electoral representation, has fallen several places in the Inter-Parliamentary Union’s global ranking of women’s parliamentary presence, from 117 after the 2014 election to 143 as of January 2020. 
    • In terms of electoral quotas, there were two outstanding exceptions in the 2019 general elections.
    • Voluntary parliamentary quota: West Bengal under Mamata Banerjee and Odisha under Naveen Patnaik opted for voluntary parliamentary quotas, fielding 40 per cent and 33 per cent women candidates, respectively.
    • Women reservation bill: The bill to reserve 33 per cent seats for women in Parliament and state legislatures was passed in the Rajya Sabha in 2010, but it was never introduced in the Lok Sabha.
    • India ranks a dismal 146th in women’s representation in the national Parliament.
    • At the turn of the century, it ranked 66th.
    • The decline has come because progress has been piecemeal — several other countries have improved their share of women in Parliament far more rapidly.

    Struggle for inclusivity

    • Despite a good start in the past, our struggle with inclusivity has not eased.
    • Due to systemic issues, Parliament continues to alienate women.
    • The number of women representatives is still considerably small, but even more subtly, Parliament as a workspace continues to be built exclusively for men.

    Lack of inclusivity in the Parliament

    • Absence of gender-neutral language: A closer look at our parliamentary discourse and communication reveals a concerning and disconcerting absence of gender-neutral language.
    • After 75 years of Independence, Parliament often refers to women in leadership positions as Chairmen and party men.
    • In the Rajya Sabha, the Rules of Procedure continue to refer to the Vice-President of India as the ex-officio Chairman, stemming from the lack of gender-neutral language in the Constitution of India.
    • The alarming degree of usage of masculine pronouns assumes a power structure biased towards men.
    • Lack of gender-neutral Acts: The issue further extends to law-making.
    • In the last decade, there have hardly been any gender-neutral Acts.
    • Acts have made references to women not as leaders or professionals (such as policemen), but usually as victims of crimes.
    • The root of such instances lies with a gender-conforming Constitution.
    • In its present state, the Constitution reinforces historical stereotypes that women and transgender people cannot be in leadership positions, such as the President and the Vice-President of India.
    • This represents the failure of the many Union Governments which did not take the initiative of amending it.
    • In the past, amendments have been brought about to make documents gender neutral.
    •  In 2014, under the leadership of the then Speaker of the Lok Sabha, Meira Kumar, the Rules of Procedure of the Lok Sabha were made entirely gender neutral.

    Way forward

    • Correcting the language: Internationally, even mature democracies that legalised universal suffrage after India, such as Canada (1960 for Aboriginal women), Australia (1962 for Indigenous women), and the United States (1965 for women of African-American descent), have now taken concrete measures towards gender-inclusive legislation and communication..
    • Amendments: India can and must begin with an amendment to the Constitution and the entire reservoir of laws.
    • Focus on the deeper issues of aspiration: Once the language is corrected, the entire country, including Parliament, can focus on the deeper issues of the aspirations and growth of its woman workforce.
    • Women staff in Parliament: Women are not adequately represented in Parliament staff,.
    • We need a single, transparent appointment and promotion process for women staff in Parliament.
    • We need to make sure that their professional growth is not being hindered by other issues such as harassment and domestic responsibilities.

    Conclusion

    In the 21st century, when people of all genders are leading the world with compassion, strength and ambitions, the Indian Parliament needs to reflect on its standing.

    UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)

  • Explained: Inter-State Council

    Tamil Nadu CM M K Stalin wrote to PM asking that at least three meetings of the Inter-State Council should be held every year to “strengthen the spirit of cooperative federalism”.

    What is the news?

    • TN CM suggested that bills of national importance should be placed before the Council before being tabled in Parliament.
    • He said this was because there is no “effective and interactive communication” between the states and the Centre on issues of common interest.

    What is the Inter-State Council?

    • The Inter-State Council is a mechanism that was constituted “to support Centre-State and Inter-State coordination and cooperation in India”.
    • It was established under Article 263 of the Constitution, which states that the President may constitute such a body if a need is felt for it.
    • The Council is basically meant to serve as a forum for discussions among various state governments.

    Its establishment

    • In 1988, the Sarkaria Commission suggested the Council should exist as a permanent body, and in 1990 it came into existence through a Presidential Order.

    Functions of the Inter-State Council

    • The main functions of the Council are:
    1. Inquiring into and advising on disputes between states
    2. Investigating and discussing subjects in which two states or states and the Union have a common interest
    3. Making recommendations for the better coordination of policy and action

    Its composition

    • The Prime Minister is the chairman of the Council, whose members include the Chief Ministers of all states and UTs with legislative assemblies, and Administrators of other UTs.
    • Six Ministers of Cabinet rank in the Centre’s Council of Ministers, nominated by the Prime Minister, are also its members.
    • Its procedure states that the council should meet at least three times a year.

    What issues has TN CM raised?

    • The leader has flagged the lack of regular meetings.
    • The Council has met only once in the last six years — and that there has been no meeting since July 2016.
    • Since its constitution in 1990, the body has met only 11 times,

    Recent development: Reconstitution of the Council

    • The CM appreciated the reconstitution of the Council, carried out last month.
    • The body will now have 10 Union Ministers as permanent invitees, and the standing committee of the Council has been reconstituted with Home Minister Amit Shah as Chairman.
    • Finance Minister Nirmala Sitharaman and the Chief Ministers of Maharashtra, UP, and Gujarat are some of the other standing committee members.

    Why did TN raise this issue?

    • Many CM frequently disagreed with the central government’s policies on matters of taxation, on the medical examination NEET, and often talked about the rights of states.
    • What could be settled amicably among the executive branches is often taken to the doorsteps of the judicial branch.

    Role of TN in the Council’s formation

    Tamil Nadu has long advocated the need for a Council.

    • In 1969, late leader M Karunanidhi, spoke about setting up an expert committee to study Centre-state relations.
    • Months later, his government appointed a committee headed by P V Rajamannar, a former Madras High Court Chief Justice, which submitted a report in 1971.
    • It then recommended “the Inter-State Council should be constituted immediately”.

    What happened in the last meeting of the Inter State Council?

    • In 2016, the meeting included consideration of the Punchhi Commission’s recommendations on Centre-State Relations that were published in 2010.
    • At the time, M Karunanidhi had criticised then CM J Jayalalithaa for not personally attending the meeting.
    • The meeting saw detailed discussion on the recommendations.
    • States asked for maintaining the federal structure amid growing “centralisation”.
    • Imposition of Article 356 of the Constitution, which deals with the imposition of President’s Rule in states, was a matter of concern.
    • Bihar Chief Minister demanded that the post of Governor should be abolished!

     

    UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)

  • Procedural gaps in death penalty sentencing

    Context

    In a judgment delivered last month, the Supreme Court, in Manoj & others v. State of MP, embarked on a significant attempt to reform the administration of the death penalty.

    Background: Crisis in the death penalty sentencing

    • There has long been a judicial crisis in death penalty sentencing on account of unprincipled sentencing, arbitrariness and worrying levels of subjectivity.
    • The crisis has been acknowledged by the Supreme Court, the Law Commission of India, research scholars and civil society groups.
    • Crime-centric nature: Death penalty sentencing has been, by and large, crime-centric.
    • This approach goes against the requirements imposed on sentencing judges by the Supreme Court in Bachan Singh (1980).

    The framework laid down in the Bachan Singh case

    • Take into account factors relating to crime and the accused: This framework made it binding for the sentencing judges to take into account factors relating to both the crime and accused and assign them appropriate weight.
    • Judges couldn’t decide to impose the death penalty only on the basis of the crime.
    • The background of the accused, the personal circumstances, mental health and age were considerations a sentencing judge had to account for.
    • Judges were required to weigh “mitigating” and “aggravating” factors to ascertain if a case was fit for the death sentence and also determine if the option of life imprisonment was “unquestionably foreclosed”.

    Why there is a crisis in death penalty sentencing?

    • The four decades since Bachan Singh have shown us that this framework has been followed more in breach.
    • There is utter confusion across all levels of the judiciary on the requirements of the framework laid down in the Bachan Singh case and its implementation.
    • Nature of crime a dominant consideration: An important reason for the breakdown is that factors relating to the crime — the nature of the crime and its brutality — are often dominant considerations, and there is barely any consideration of mitigating factors.
    • Little discussion on mitigating factors: There has been very little discussion on bringing the socioeconomic profile of death row prisoners as a mitigating factor into the courtroom.

    Significance of the SC judgment in Manoj & others v. State of MP

    • Efforts to plug the gap: The judgement identifies the lacuna as an explicit concern, states the consequences that flow from such a vital gap, and suggests measures to plug it.
    • Recognising reformation: A striking part of the judgment is its commitment to recognising reformation as integral to the Indian criminal justice system, especially death penalty sentencing.
    • Procedural threshold: The judgment is clear that certain procedural thresholds must be met for sentencing to be fair and explicitly rejects (once again) the idea that death sentences can be determined solely on crime-based considerations.
    • The verdict recognises that aspects of the accused’s life, both pre-offence and post-offence in prison, are relevant.
    • As practical steps in this process, the judgment asks courts to call for reports from the probation officer as well as prison and independent mental health experts.
    • Right of the accused to present mitigating factors: The right of the accused to present mitigating factors and rebut the state, if necessary, is also recognised.
    • Psychological and philosophical aspect taken into account: There is now overwhelming evidence from psychology that criminality cannot just be reduced to terrible decisions by individuals in the exercise of their free will.
    • All our actions are a result of a complex web of biological, psychological, and social factors and that understanding has a very significant bearing on discussions on criminality and punishment.

    Challenges

    • Implementation issue: Apart from this issue of implementation, even if detailed and high-quality sentencing information is to come into our courtrooms, a bigger challenge awaits.
    • The judicial treatment of sentencing information is a Pandora’s box that will inevitably have to be opened.
    • Requirement for normative basis: The Supreme Court will have to provide a rigorous normative basis for consideration of these factors.
    • In the absence of such foundations, death penalty sentencing will continue to be unprincipled and sentencing judges are not going to understand the need for this wide range of sentencing information.

    Conclusion

    The significance of last month’s judgment, authored by Justice Ravindra Bhat, is that it takes this problem head-on. It identifies the lacuna as an explicit concern, states the consequences that flow from such a vital gap, and suggests measures to plug it.

    UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)

  • New norms for Sentence Remission

    The Union Home Ministry issued a set of guidelines to the States and the Union Territories on the grant of special remission to prisoners to commemorate the 75th year of Independence.

    What is the news?

    • The decision comes as part of the Azadi Ka Amrit Mahotsav celebrations.
    • The special remission would be granted to a certain category of prisoners, and they would be released in three phases.

    What is Remission?

    • The suspension is the stay or postponement of the execution of the sentence.
    • In remission, the duration of the sentence is reduced, without changing the nature of the sentence.
    • In remission, the nature of the sentence is remained untouched, while the duration is reduced i.e. the rest of the sentence need not be undergone.
    • The effect of the remission is that the prisoner is given a certain date on which he shall be released and the eyes of the law he would be a free man.
    • However, in case of breach of any of the condition of remission, it will be cancelled and the offender has to serve the entire term for which he was originally sentenced.

    Constitutional provisions for Remission

    • ‘Prisons’ is a State subject under the State List of the Seventh Schedule of the Constitution.
    • Indian laws provide pardoning power sourcing from statuary and constitutional authorities.
    • By virtue of Article 72 and 161 of the Constitution of India, the President and Governor can grant pardon, to suspend, remit or commute a sentences passed by the courts.

    What are the new norms?

    The prisoners who would qualify for premature release under the scheme are:

    • Women and transgender convicts of ages 50 and above
    • Male convicts of 60 and above who have completed 50% of their total sentence period without counting the period of general remission earned
    • Physically challenged or disabled convicts with 70% disability and more who have completed 50% of their total sentence period
    • Terminally ill convicts
    • Convicted prisoners who have completed two-thirds (66%) of their total sentence
    • Poor or indigent prisoners who have completed their sentence but are still in jail due to non-payment of fine imposed on them by waiving off the fine
    • Persons who committed an offence at a young age (18-21) and with no other criminal involvement or case against them and who have completed 50% of their sentence period would also be eligible for the remission

    Exceptions to these norms

    Following persons would not be eligible for the grant of special remission:

    • Persons convicted with death sentence or where death sentence has been commuted to life imprisonment or persons convicted for an offence for which punishment of death has been specified as one of the punishments
    • Persons convicted with sentence of life imprisonment
    • Convicts involved in terrorist activities or persons convicted under the Terrorist and Disruptive (Prevention) Act, 1985, Prevention of Terrorist Act, 2002, Unlawful Activities (Prevention) Act, 1967, Explosives Act, 1908, National Security Act, 1982, Official Secrets Act, 1923, and Anti-Hijacking Act, 2016

    Back2Basics: Pardoning powers in India

    • Under the Constitution of India (Article 72), the President of India can grant a pardon or reduce the sentence of a convicted person, particularly in cases involving capital punishment.
    • A similar and parallel power vests in the governors of each state under Article 161.
    1. President
    1. 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 offence.
    2. The pardoning powers of the Indian President are elucidated in Art 72 of the Indian Constitution. There are five different types of pardoning which are mandated by law.
    • Pardon: means completely absolving the person of the crime and letting him go free. The pardoned criminal will be like a normal citizen.
    • 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.
    • 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.
    • Respite: means reducing the quantum or degree of the punishment to a criminal in view of some special circumstances, like pregnancy, mental condition etc.
    • 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;
    • in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
    • in all cases where the sentence is a sentence of death.
    1. Governor
    • Similarly, as per article 161: Governor of a State has 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 offence against any law.
    • It must be relating to a matter to which the executive power of the state extends.
    • Please note that President can grant pardon to a person awarded death sentence. But a governor of a state does not enjoy this power.

    Nature of the Pardoning Power

    • The question is whether this power to grant pardon is absolute or this power of pardon shall be exercised by the President on the advice of Council of Ministers.
    • 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 President 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.

     

    UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)