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Subject: Polity

  • Reservation in Public Employment: Key Events

    This newscard is an excerpt from the original article published in the TH.

    Reservation in Promotion

    • The jurisprudence of reservation relies on the symbiotic coexistence of constitutionally guaranteed equality of opportunity in public employment under Article 16 (1) of the Constitution of India.
    • The classifications were various clauses of the same article, especially Article 16(4) and Article 16 (4 A).
    • It specifically aimed to provide reservation in promotion to Scheduled Castes and Scheduled Tribes, respectively.
    • These articles vested a discretion on the government to consider providing reservations for the socially and educationally backward sections of the society.

    Reservation not a fundamental Right

    • It is a settled law, time and again reiterated by the Supreme Court, that there is no fundamental right to reservation or promotion under Article 16(4) or Article 16(4 A) of the Constitution.
    • Rather they are enabling provisions for providing reservation, if the circumstances so warrant (Mukesh Kumar and Another vs State of Uttarakhand & Ors. 2020).
    • However, these pronouncements no way understate the constitutional directive under Article 46.
    • Article 46 mandates that the state shall promote with special care the educational and economic interests of the weaker sections of the people and in particular SCs and STs.
    • However such provisions resulted in the ever-evolving jurisprudence of affirmative action in public employment.

    Major events

    (1) Mandal storm

    • Reservation in employment which was otherwise confined to SC and STs got extended to new section called the Other Backward Classes (OBCs).
    • This was the basis of the recommendations of the Second Backward Class Commission as constituted, headed by B.P. Mandal.
    • The Mandal Commission (1980) provided for 27% reservation to OBC in central services and public sector undertakings.
    • This was over and above the existing 22.5% reservation for SCs and STs, was sought to be implemented by the V.P. Singh Government in 1990.
    • The same was assailed in the Supreme Court resulting in the historic Indra Sawhney Judgment.

    (2) Indra Sawhney Judgment (1992)

    • In the judgment, a nine-judge bench presided by CJI MH Kania upheld the constitutionality of the 27% reservation.
    • But it put a ceiling of 50% unless exceptional circumstances warranting the breach, so that the constitutionally guaranteed right to equality under Article 14 would remain secured.
    • While Article 16(1) is a fundamental right, Article 16(4) is an enabling provision and not an exception.
    • Further, the Court directed the exclusion of creamy layer by way of horizontal division of every other backward class into creamy layer and non-creamy layer.

    (3) The Constitution (Seventy-seventh Amendment) Act, 1995

    • In Indra Sawhney Case, the Supreme Court had held that Article 16(4) of the Constitution of India does not authorise reservation in the matter of promotions.
    • However, the judgment was not to affect the promotions already made and hence only prospective in operation, it was ruled.
    • By the Constitution (Seventy-seventh Amendment) Act, 1995, which, Article 16(4-A), was inserted.
    • It aimed to provide the State for making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State.
    • This was to be in favour of the SCs and the STs which, in the opinion of the State, are not adequately represented in the services under the State.
    • Later, two more amendments were brought, one to ensure consequential seniority and another to secure carry forward of unfilled vacancies of a year.

    (4) M. Nagaraj (2006) Case

    • A five-judge bench of Supreme Court declared the 1995 amendment as not vocative of basic structure of the Constitution.
    • It laid down ceratin conditions which included the collection of quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment.
    • The bench held that the creamy layer among SCs and STs is to be excluded from reservation.

    (5) Jarnail Singh vs Lachhmi Narain Gupta (2018)

    • It was authored by Justice Rohinton Nariman and indicates a critical turn in the jurisprudence of reservation.
    • In this case, a constitution bench of Supreme Court was called on to examine wisdom of the 2006 judgment.
    • This task was to examine the constitutionally recognised socio-economic backwardness of the SCs and STs which may not require any further substantiation.
    • It was also contended that the requirement to identify creamy lawyer among SC and STs fell foul of Indra Sawhney decision.
    • The constitution bench invalidated the requirement to collect quantifiable data in relation to SCs and STs.
    • It upheld the principle of applicability of creamy lawyer in relation to SCs and STs.

    (6) The Constitution (103rd Amendment) Act, 2019

    • The 10% reservation for Economically Weaker Sections (EWS) other SCs, STs and backward classes for government jobs and admission in educational institutions.
    • This is currently under challenge before the Supreme Court which has referred the same to a constitution bench.
    • This was a critical milestone to specifically include economic backwardness without social backwardness as is traditionally seen.

    (7) Dr. Jaishri Laxmanrao Patil vs Chief Minister (2021)

    • Despite the Indra Sawhney ruling, there have been attempts on the part of many States to breach the rule by way of expanding the reservation coverage.
    • The Maharashtra Socially and Educationally Backward Classes Act 2018, (Maratha reservation law) came under challenge before the Supreme Court.
    • This case was referred to a bench of five judges to question whether the 1992 judgment needs a relook.
    • Interestingly, the Supreme Court affirmed the Indra Sawhney decision, and struck down Section 4(1)(a) and Section 4(1)(b) of the Act which provided 12% reservation for Marathas in educational institutions and 13% reservation in public employment respectively.
    • This judgment gave out a strong message that some State governments blatantly disregard the stipulated ceiling on electoral gains rather than any exceptional circumstances.

     

     

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  • Digitization of Judiciary

    Context

    The Indian judiciary has increasingly started using technology and the change is reflected in the legal profession in general as well.

    Increasing use of digital technology in the judiciary

    • With the digitisation of judicial records and the establishment of e-courts, significant developments had taken place in 2020.
    • Use of technology to better utilise potential: It is imperative that the use of digital technology be discussed to better utilise its potential, particularly in terms of digitisation of court records, e-filing of cases and their virtual hearing, live streaming of court proceedings.

    Background

    • In India, e-governance in the field of administration of justice began in the late 1990s, but it accelerated after the enactment of the Information and Technology Act, 2000.
    • In the year of 2006, e-courts were launched as a part of the National e-Governance Plan (NEGP).

    Digitisation of case files

    • When he was the Chief Justice of Allahabad HC, Justice D Y Chandrachud had conceptualised and initiated the project to digitise approximately one crore case files in one year.
    • Saving of space and preservation of old documents: This was necessary as not only was a large space required to store so many files, it was also becoming difficult to manually preserve the decades-old documents.
    • Traceability: Another purpose was to ensure that these files are traceable electronically as and when required.
    • It has also been observed that cases are adjourned simply because affidavits filed several years ago were not restored with the record or were not traceable.
    • Once the documents are digitised and e-filed by counsels, at least the cases would not get adjourned by the courts on this account.
    • Reducing the risk of missing court records: In State of Uttar Pradesh v. Abhay Raj Singh, it was held by the Supreme Court that if court records go missing and re-construction is not possible, the courts are bound to set aside the conviction.
    • Saving of time: With digitisation, it will take much less time for the lower courts to transmit the records as and when called for.
    • The lawyers benefit because they or their staff are no longer required to visit the reporting sections or other sections of the court to know about the status of their cases.
    • This has been sought to be implemented by the e-Committee of the Supreme Court by issuing directions to ensure that e-filing of cases/petitions by state governments in all matters be made mandatory from January 1, 2022.

    Scope for virtual hearing in certain cases

    • Cases related to matrimonial issues and domestic violence bounced cheques, motor accident compensation referred to mediation centres and lok adalats could be included in the list of cases fit for disposal through the virtual hearing.
    • The hearing of matrimonial cases through video-conferencing was approved by the Supreme Court in the matter of Krishna Veni Nagam v Harish Nagam (2017).
    • The direction was short-lived and a coordinate bench of the Supreme Court in the case of Santhini v Vijaya Venkatesh (2018) referred the matter for reconsideration before a larger bench.
    • Virtual hearings cannot be a substitute for physical court hearings in all cases.
    • However, in appropriate cases and certain categories of cases as identified by the court administration in consultation with the members of the Bar, virtual hearing should be made mandatory.

    Live streaming of cases

    • In 2018, the Supreme Court allowed the live-streaming of cases of constitutional and national importance on the basis of the judgment in Swapnil Tripathi.
    • Step towards transparency: The livestreaming of court proceedings is a step towards ensuring transparency and openness.
    • While several reservations were expressed against it, the Gujarat HC in July 2021 became the first court in the country to livestream its proceedings.
    • Its example was followed by other HCs like Karnataka, Odisha, Madhya Pradesh and Patna.

    Challenges

    • Internet connectivity issues and the need for a well-equipped space where lawyers can conduct their cases are some of the major problems requiring attention.
    • Political will and the support of judges and lawyers are also necessary.
    • Awareness and training: Judges, court staff and lawyers are not well-versed with digital technology and its benefits.
    • The need of the hour is for them to be made aware of these and receive adequate training.

    Conclusion

    Adoption of technology will bring drastic changes in the field of law and will transform the Court system.

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  • Criminal justice system

    Context

    The key to an improved criminal justice system is quality forensic labs and well-trained staff, not more legislation and harsher punishments.

    About forensic science

    • Forensic science is the application of scientific perspectives and techniques to the legal process, including investigations and courtroom protocol.
    • It is the use of scientific data and procedures specifically for the legal system.
    • There is rigorous procedure involved, including controlled conditions, reliable data collection and the attempt to disprove hypotheses.
    • Methodologies like the autopsy procedures, fingerprinting, testing and matching for poisons, blood spatter analysis, matching guns to bullets fired (ballistics), voice sample matches, handwriting assessments and DNA analysis are all facets of forensic science.

     Inadequate state forensic facilities

    • We have a woefully inadequate number of forensic science laboratories (FSL).
    • There are seven central forensic laboratories in India at Hyderabad, Kolkata, Chandigarh, New Delhi, Guwahati, Bhopal and Pune.
    • Six of these laboratories, barring Delhi, are under the control of the Directorate of Forensic Science Services (DFSS), and its mission is to render high quality and credible forensic services to the justice delivery system.
    • A National Forensic Sciences University was established in Gandhinagar, Gujarat in 2020.
    • The existing National Institute of Criminology and Forensic Science in Delhi has been integrated into this new university.
    • There are 32 state FSLs and about 529 mobile FSL units, of which Delhi has one state FSL and six mobile units.
    • The DNA tests discovered in 1985 are used to identify individuals involved in alleged crimes.
    • In 2017, The Hindu reported that while the United Kingdom completes DNA testing on over 60,000 crimes annually, India with over 13 times the population completes such tests on less than 7,500 cases.
    • The average pendency at each lab is huge.
    • In all states, there were over 50 per cent vacancies in personnel at their facilities.

    Way forward

    • More investment: We certainly need more investment in the establishment of FSL laboratories, the training and appointment of personnel adept at forensic methodologies and reforms within our police to establish a trained and skilled detective cadre tasked with solving complex and heinous crimes.
    • Quality training and accreditation: There is a desperate need for good quality training facilities, standards of accreditation and continuous education programmes for our forensic experts.

    Conclusion

    It is not more legislation and harsher punishments that will solve crimes, but well-trained forensic staff plying their craft in good quality laboratories that will aid our criminal justice system.

  • A new road for India’s fiscal federalism

    Context

    On May 19, in Union of India vs Mohit Minerals, the Supreme Court of India delivered a ruling which is likely to have an impact far wider than what the Centre might have imagined when it brought the case up on appeal.

    Background

    • At stake was the validity of a levy imposed on importers, of Integrated Goods and Services Tax (IGST) on ocean freight paid by foreign sellers to foreign shipping lines.
    • The Gujarat High Court had declared the tax illegal.
    • The Supreme Court affirmed the ruling and held that the levy constituted double taxation — that is, that the importer, which was already paying tax on the “composite” supply of goods, could not be asked to pay an additional tax on a perceived “service” that it may have received.

    Why the ruling could transform the future of fiscal federalism in India

    • Equal powers to legislate on GST: While delivering the judgement, the Supreme Court held that both Parliament and the State legislatures enjoy equal power to legislate on Goods and Services Tax (GST).
    • The Court said that the Goods and Services Tax Council’s recommendations were just that: recommendations that could never be binding on a legislative body.
    • Until now, governments across India have treated the GST Council’s recommendations — even where they disagreed with them — as sacrosanct, because they believed that this was indeed the law.
    • According to the Court, State legislatures possess the authority to deviate from any advice rendered by the GST Council and to make their own laws by asserting, in the process, their role as equal partners in India’s federal architecture.
    • Conflicting taxation regimes: Because of the ruling, the State governments will be free to exercise independent power to legislate on GST.
    • It is possible that this might lead to conflicting taxation regimes, with the idea of ‘One Nation One Tax’ rendered nugatory.
    • Constitutional power cannot be limited through statute: The Court’s ruling does not mean that a legislature — whether Parliament or the States’ — cannot through statutory law make the Council’s recommendations binding on executive bodies.
    • But a constitutional power, in the Court’s ruling, can never be limited through statute. Such curbs must flow only from the Constitution.
    • And in this case, in the Court’s analysis, no restrictions on legislative power can be gleaned on a meaningful reading of the Constitution.

    Background of 101st constitutional Amendment

    • Unification of tax administration: When, in July 2017, the Union government introduced the GST regime through the 101st constitutional Amendment, it did so based on an underlying belief that tax administration across India needed unification.
    • To give effect to this idea, many entries in the State list of Schedule VII of the Constitution were either deleted or amended.
    • A power to legislate on GST was inserted through a newly introduced Article 246A.
    •  No longer could State governments legislate on sale or purchase of goods barring a few exceptions, such as petroleum and liquor through the ordinary legislative route.
    • GST Council: In addition, the 101st Amendment also established, through Article 279A, a GST Council.
    • The Council was given the power to “make recommendations to the Union and States” on several different matters.

    Implications of the judgement

    • The use of the word “recommendations” suggested on the one hand that its decisions would be advisory, at best.
    • But, at the same time, the fact that Article 279A directed the establishment of a mechanism to adjudicate disputes between governments on decisions taken by the Council suggested that those governments would, in fact, be bound by any advice rendered to them.
    • GST would be in jeopardy: If the former reading was to be deployed, the purpose behind the introduction of a common GST would be in jeopardy.
    • But the latter interpretation effectively entailed the destruction of the well-laid plans of the Constituent Assembly.
    • Fiscal responsibilities that had been divided with much care and attention between the Union and the States would now stand dissolved.

    Federal compact

    • Although States had until now proceeded on a tacit belief that the GST Council’s recommendations were binding, such an approach, in Justice Chandrachud’s words, would run counter both to the express words of the Constitution and the philosophical values underlying the language deployed.
    • Article 246A, which was introduced by the 101st Amendment provides concomitant power both to the Union and to the State governments to legislate on GST.
    • It does not discriminate between the two in terms of its allocation of authority.
    • That allocation, according to the Court, cannot be limited by a reading of Article 279A, which establishes a GST Council, and which treats the Council’s decisions as “recommendations”.

    Conclusion

    GST was conceived as a product of what some described as “pooled sovereignty”. But perhaps it is only in an administrative area, animated by contestation, where we can see synergy between different sovereign units, where our nation can take a genuine turn towards a more “cooperative federalism”.

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  • RTI Act and Armed Forces

    Veterans of the Indian Armed Forces have urged PM against exempting defense services from purview of RTI (Right to Information) Act, 2005.

    Why in news?

    • Last year, late CDS Rawat had urged the government making a pitch for defence services to be exempted from the RTI Act.
    • He had stated that none of the Central Armed Police Forces (CAPF) are under its purview and defence services, being even more sensitive, should be fully exempted too.

    What is RTI?

    • RTI is an act of the parliament which sets out the rules and procedures regarding citizens’ right to information.
    • It replaced the former Freedom of Information Act, 2002.
    • Under the provisions of RTI Act, any citizen of India may request information from a “public authority” (a body of Government or “instrumentality of State”) which is required to reply expeditiously or within 30.
    • In case of the matter involving a petitioner’s life and liberty, the information has to be provided within 48 hours.
    • The Act also requires every public authority to computerize their records for wide dissemination and to proactively publish certain categories of information so that the citizens need minimum recourse to request for information formally.

    Constitutional status of RTI

    • Since RTI, is implicit in the Right to Freedom of Speech and Expression under Article 19 of the Indian Constitution, it is an implied FR.
    • These are backed by the right to constitutional remedies that is, the right to approach the supreme court and high court under Article 32 and 226 respectively in case of infringement of any of FRs.

    Benefits of RTI

    • Greater accessibility of information: A person can seek information from any public authority in the form of copies, floppy disks, sample material etc under RTI.
    • Efficient governance: RTI Act helps us in knowing the efficiency of the government’s functioning.
    • Citizen’s participation: Information under RTI can be sought easily by requesting the public officer and assistant public officer in any public authority.
    • Government obligation: Obtaining information from any public authority is obligatory for them.
    • Maintenance of public record: Under RTI Act, it is the duty of public authorities to maintain records for easy access and to publish within 120 days the name of the particular officers who should give the information and in regard to the framing of the rules, regulations etc.
    • Empowerment of Citizens: Every citizen has been empowered to be informed about anything that affects their life directly or indirectly.

    Why do Veterans want RTI?

    • The RTI has remained a powerful tool with the veterans and serving community to obtain information and documents concerning their service and pensioner issues.
    • RTI Act has ensured maximum transparency in official establishments dealing with such cases.
    • Even innocuous documents such as medical board proceedings concerning disabled soldiers and old service records of veterans are only made available through the RTI Act.
    • Requesting that defence services are not be placed in Schedule 2 of the RTI Act, 2005, the lobby said that adequate protection is already available in Sections 8 and 9 of the Act.
    • Armed forces can hold back information related to operational and security-related issues.

    Necessity for RTI in armed forces

    • Any such move will be a blow to transparency and will lead to an exponential increase in litigation and grievances.
    • And any irregularities in defence procurements would also go under the carpet, besides massive discrepancies in promotions.
    • Already they are so opaque and have faced so many strictures by the courts.
    • Denying such a right of a powerful public-oriented tool to military personnel, veterans, military widows and their families would place them at a sharp disadvantage compared to citizens.
    • This would also result in litigation blast with affected persons approaching judicial forums for minor issues.

     

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  • Why transfer of case to district judge by Supreme Court sends the wrong signal

    Context

    The Supreme Court order of May 20, transferring the suit on the Gyanvapi Masjid dispute from the civil judge (senior division) Varanasi to the district judge casts aspersion, though unintended, on the competence of civil judges in general.

    Background

    • The matter had reached the Supreme Court on a petition filed by the Mosque Management Committee, which challenged the civil judge’s orders.
    • The order permitted inspection, survey, and videography of the mosque’s complex to collect evidence about the alleged existence of idols of Hindu deities inside the mosque, which is adjacent to the Kashi Vishwanath Temple.
    • The Mosque Management Committee had filed an application before the civil judge seeking the rejection of the plaint on the ground that it was barred by the Places of Worship (Special Provisions) Act, 1991.
    • Places of Worship (Special Provisions) Act, 1991 prohibits individuals and groups of people from converting, in full or in part, a place of worship of any religious denomination into a place of worship of a different religious denomination, or even a different segment of the same religious denomination.
    • It was argued before the SC that given the said Act, the suit was liable to be rejected at the threshold as the civil judge had no jurisdiction to entertain the same, much less to pass the aforesaid interim orders.
    • The SC has not found any fault with the order of the civil judge, though there is also a view that it was mandatory on the part of the civil judge to have first passed an order on whether he had the jurisdiction to entertain the suit.
    • However, it appears that in the SC’s view, this was not a serious infraction.
    • So, in a way, the SC has affirmed the orders of the civil judge.
    • The civil court had territorial and pecuniary jurisdiction to deal with the matter.
    • The question that arises is: Why has the Supreme Court transferred the matter to the court of the district judge?

    Issues with the SC transferring the case to the district judge

    • The SC has seemingly declared civil judges to be not competent to decide a matter alleged to be complex.
    • When the Civil Procedure Code, the High Court Rules and Orders invest a civil judge with jurisdiction, why take it away merely on the plea that the matter is complex?
    • Unhealthy precedent: Fransfer of the case to the district judge has set an unhealthy precedent and will have a demoralising effect on the subordinate judiciary.
    • In the recent past, many lower-level judicial officers have passed outstanding orders in matters concerning the liberties of the citizens, which are under threat as never before.
    • The subordinate judiciary provides the foundation of our judicial system.

    Conclusion

    Supreme Court order inadvertently casts aspersions on competence of subordinate judiciary. District court should not be weighed down by SC observation.

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  • India needs parliamentary supervision of trade pacts

    Context

    India is negotiating and signing several free trade agreements (FTAs) with countries like Australia, the UK, Israel, and the EU. While the economic benefits of these FTAs have been studied, there is very little discussion on the lack of parliamentary scrutiny of these treaties.

    Provisions in the Constitution

    • In the Constitution, entry 14 of the Union list contains the following item — “entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries”.
    • According to Article 246, Parliament has the legislative competence on all matters given in the Union list.
    • Thus, Parliament has the power to legislate on treaties. 
    • This power includes deciding how India will ratify treaties and thus assume international law obligations.
    • Article 253  elucidates that the power of Parliament to implement treaties by enacting domestic laws also extends to topics that are part of the state list.

    Lack of parliamentary oversight and its implications

    • No law laying down the process: While Parliament in the last seven decades has passed many laws to implement international legal obligations imposed by different treaties, it is yet to enact a law laying down the processes that India needs to follow before assuming international treaty obligations.
    • Given this legislative void, and under Article 73(the powers of the Union executive are co-terminus with Parliament), the Centre has been not just negotiating and signing but also ratifying international treaties and assuming international law obligations without much parliamentary oversight.
    • Arguably, Parliament exercises control over the executive’s treaty-making power at the stage of transforming a treaty into the domestic legal regime.
    • However, this is a scenario of ex-post parliamentary control over the executive.
    • In such a situation, Parliament does not debate whether India should or should not accept the international obligations; it only deliberates how the international law obligations, already accepted by the executive, should be implemented domestically.
    • Against the practice in other liberal democracies: This practice is at variance with that of several other liberal democracies.
    • In the US, important treaties signed by the President have to be approved by the Senate.
    • In Australia, the executive is required to table a “national interest analysis” of the treaty it wishes to sign in parliament, and then this is examined by a joint standing committee on treaties – a body composed of Australian parliamentarians.

    Way forward

    • Indian democracy needs to inculcate these healthy practices of other liberal democracies.

    Conclusion

    Effective parliamentary supervision will increase the domestic acceptance and legitimacy of international treaties, especially economic agreements, which are often critiqued for imposing undue restraints on India’s economic sovereignty.

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  • Centre reconstitutes Inter-State Council (ISC)

    The Inter-State Council, which works to promote and support cooperative federalism in the country, has been reconstituted with PM Modi as Chairman and CMs of all States and six Union Ministers as members.

    What is Inter-State Council (ISC)?

    Genesis of ISC

    • The Constitution of India in Article 263, provides for the establishment of Inter-State Council (ISC).
    • The objective of the ISC is to discuss or investigate policies, subjects of common interest, and disputes among states.

    Temporary or permanent?

    • The articles says that ISC may be established “if at any time it appears to the President that the public interests would be served by the establishment of a Council”.
    • Therefore, the constitution itself did not establish the ISC, because it was not considered necessary at the time the constitution was being framed, but kept the option for its establishment open.

    Establishment as permanent body

    • This option was exercised in 1990.
    • The ISC was established as a permanent body on 28 May 1990 by a presidential order on the recommendation of the Sarkaria Commission.
    • It had recommended that a permanent Inter-State Council called the Inter-Governmental Council (IGC) should be set up under Article 263.
    • It cannot be dissolved and re-established.
    • Therefore, the current status of ISC is that of a permanent constitutional body.

    Aims of the ISC

    • Decentralisation of powers to the states as much as possible
    • More transfer of financial resources to the states
    • Arrangements for devolution in such a way that the states can fulfil their obligations
    • Advancement of loans to states should be related to as ‘the productive principle’
    • Deployment of Central Armed Police Forces in the states either on their request or otherwise

    Composition

    The Inter-State Council composes of the following members:

    • Prime Minister, Chairman.
    • Chief Ministers of all states.
    • Chief Ministers of the union territories having legislative assemblies.
    • Administrators of the union territories not having legislative assemblies.
    • 6 Union Cabinet Ministers, including Home Minister, to be nominated by the Prime Minister.
    • Governors of the states being administered under President’s rule.

    Standing Committee

    • Home Minister, Chairman
    • 5 Union Cabinet Ministers
    • 9 Chief Ministers

     

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  • As Indian economy grows, Centre and states must work together

    Context

    The ongoing discords between the Centre and states over issues ranging from the allocation of financial resources to fixing of GST rates has once again brought to the fore issues pertaining to our federal structure, the resolution of which is essential for the country’s growth.

    Combination of cooperative and competitive spirit

    • Positive competition: It is undeniable that cooperation is key to the smooth functioning of federal design.
    • However, if it is coupled with positive competition among the states, then the overall result would be large-scale economic development across the country.
    • The competitive aspect of federalism can positively be harnessed by encouraging states to adopt each other’s best practices.
    • Exclusivity and mutualism: Indian federalism today enables the Centre and states to function with both exclusivity and mutualism.
    • Vertical and horizontal level: Cooperation between the Centre and states is required at both vertical (between Centre and states) and horizontal (among states) levels and on various fronts.
    • What does it mean? This includes fine-tuning of developmental measures for desired outcomes, development-related policy decisions, welfare measures, administrative reforms, strategic decisions, etc.

    Steps in the direction of cooperation

    • Recent efforts in this direction, such as according greater leeway to states in the functioning of the NITI Aayog, frequent meetings of the prime minister with chief ministers as well as with chief secretaries and district magistrates, periodic meetings of the President of India with governors, and the functioning of “PRAGATI” to review the progress of developmental efforts have generated the requisite synergy between the Centre and states.
    • Positive efforts of states towards attracting investment can create a conducive environment for economic activities in urban and backward regions alike.
    • Healthy competition coupled with a transparent ranking system would ensure the full materialisation of the vast but least utilised potential of the federal framework.
    • Sector specific indices: In this direction, NITI Aayog’s initiatives such as launching sector-specific indices like the School Education Quality Index, Sustainable Development Goals Index, State Health Index, India Innovation Index, Composite Water Management Index, Export Competitiveness Index, etc. could prove to be a great contribution.
    • Central efforts toward synchronisation of cooperation and competition can be observed in the implementation of the 14th and 15th Finance Commission reports, which have greatly contributed to resource devolution.
    • Recent reform measures in the form of the New Labour Code and other amendments/enactments by the legislature also exhibit this trend.

    Conclusion

    The rising stature of the Indian economy on the world stage can only be strengthened by a tailored approach to cooperation and competition. The mandate to marry the two would inevitably be the collective responsibility of the Centre and the states. Any ideological differences between them will have to be inevitably put on the backburner for the great Indian federal structure to succeed and prosper.

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  • The constitutional battle between governor and government

    Context

    The Supreme Court’s action in ordering the release of A G Perarivalan, a convict in the Rajiv Gandhi assassination case, has resulted in mixed reactions.

    Background

    • After the assassination of Rajiv Gandhi, the assailants were tried under the notorious Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA).
    • All 26 accused were given the death sentence by the Special Court for various offences, including under TADA (1998).
    • Fortunately, the SC held that the offences under TADA were not made out since there was no case to proceed for acts of terrorism.
    • It also modified the death penalty for 22 persons and confirmed the same only for Nalini, Perarivalan, Murugan and Santhan (1999).
    • Petition for mercy under Article 161: They petitioned the governor of Tamil Nadu for mercy under Article 161.
    • The then governor of Tamil Nadu dismissed their petition without any advice from the cabinet.
    • The Madras High Court ruled that the governor cannot exercise the power of pardon without the advice of the council of ministers.
    • The cabinet advised the governor to give reprieve only to Nalini Sriharan and rejected the case of the other three, including Perarivalan.
    • Perarivalan and the two other convicts appealed to the president with a mercy plea under Article 72. 
    •  Two successive presidents of India – K R Narayanan and APJ Abdul Kalam — did not pass any mercy orders.
    • But all of a sudden, their mercy pleas were rejected after a delay of 11 years by President Pratibha Patil.
    • When they were about to be executed, the convicts moved the Madras HC challenging the execution of the death warrant issued against them.
    • The cases were transferred to the SC, which decided that the president’s action in not considering the mercy plea within a reasonable time was improper and since the three prisoners had been on death row for 11 years, it was a fit case for commuting their sentence to life imprisonment.
    • Meanwhile, on February 19, 2014, the TN cabinet advised the governor to grant reprieve to all seven accused.
    • Once again, all of them applied for remission from the governor.
    • The state cabinet also advised the governor to grant pardon.
    • WhenPerarivalan’s mother, filed a case for parole, the court noting the inordinate delay observed: “the Governor of T N, a constitutional authority, cannot sit on the state’s recommendation on the release of all seven life convicts in the Rajiv Gandhi assassination case for so long” (July 2020).
    • The court was informed that the governor was awaiting the final report of the CBI’s Multi-Disciplinary Monitoring Agency (MDMA).

    Role of MDMA

    • The role of MDMA itself came up for criticism by the SC in January 2018 and it observed that the agency did not appear to have made “much headway”.
    • The court observed that the question of reopening the case against them will not arise as they had been already convicted for murder and conspiracy.
    • Article 20(2) of the Constitution guarantees that no person can be prosecuted and punished for the same offence more than once.

    Use of powers under Article 142 by the Supreme Court

    • Once again, the process of granting mercy to the seven accused began with a resolution passed by the T N Assembly on September 9, 2018.
    • On the same day, the state cabinet advised the governor to give reprieve to all seven prisoners.
    • On being compelled by the court, the governor stated that the matter was to be dealt with by the President.
    • It was at this stage the matter went back to the SC.
    • It was finally decided that the authority to grant pardon is with the governor and he is bound by the advice of the state government.
    • The court also ruled that the action of the governor in delaying the matter for more than 2.5 years was unacceptable.
    • Exercising its power under Article 142 as well as considering all the relevant circumstances, the SC ordered Perarivalan’s release.

    Limitations on governor’s power

    • Giving reprieve to persons sentenced to the death penalty, even in the exercise of the plenary powers by a governor, has limitations.
    • In 1978, Parliament amended the Criminal Procedure Code and introduced Sec 433A by which in such cases, prisoners cannot be released from prison unless they had served a minimum of 14 years in prison. 

    Reformatory penal system of India

    • India’s penal system is undoubtedly reformatory and not retributive.
    • The SC ruled on this issue by stating “a barbaric crime does not have to be visited with a barbaric penalty.”
    • It is also surprising that the successive governments at the Centre appeared to be guided in this case by geopolitical considerations rather than this country’s laws.

    Conclusion

    The question now is whether the six other prisoners will receive the same relief or will there be a confrontation between the state government and governor once again. Let us hope that wisdom prevails and the governor’s office is not manipulated for narrow political considerations.

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