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Subject: Polity

  • 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!

     

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  • 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.

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  • 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.

     

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  • Back in news: Article 142 of the Constitution

    The Supreme Court has crafted a victory for a disabled student by using its special powers under Article 142 to declare the successful completion of her Master of Designs course from the Indian Institute of Technology (IIT).

    What is Article 142?

    Article 142 titled ‘Enforcement of decrees and orders of the Supreme Court and orders as to discovery, etc.’ has two clauses:

    [1] Article 142(1)

    • The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.
    • Any decree so passed or order so made shall be enforceable throughout the territory of India.
    • It may be in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.

    [2] Article 142(2)

    • The Supreme Court shall have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.

    Important instances when Article 142 was invoked

    • Bhopal Gas tragedy case: The SC awarded a compensation of $470 million to the victims and held that “prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the constitutional powers under Article 142.”
    • Babri Masjid demolition case: The Supreme Court ordered framing of a scheme by the Centre for formation of trust to construct Ram Mandir at the Masjid demolition site in Ayodhya.
    • Liquor sale ban case: The Supreme Court banned liquor shops within a distance of 500 metres from National as well as State highways in order to prevent drunken driving.
    • Ex-PM Assassin case: In the case of Perarivalan, the Supreme Court invoked Article 142(1) under which it was empowered to pass any order necessary to do complete justice in any matter pending before it.

    Try this PYQ from CSP 2019:

    Q.With reference to the Constitution of India, prohibitions or limitations or provisions contained in ordinary laws cannot act as prohibitions or limitations on the constitutional powers under Article 142. It could mean which one of the following?

     

    (a) The decisions taken by the Election Commission of India while discharging its duties cannot be challenged in any court of law.

    (b) The Supreme Court of India is not constrained in the exercise of its powers by laws made by the Parliament.

    (c) In the event of grave financial crisis in the country, the President of India can declare Financial Emergency without the counsel from the Cabinet.

    (d) State Legislatures cannot make laws on certain matters without the concurrence of Union Legislature.

     

    [wpdiscuz-feedback id=”ymyde3o963″ question=”Please leave a feedback on this” opened=”1″]Post your answers here.[/wpdiscuz-feedback]

     

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  • E-Vidhan System for Paperless Legislation

    A delegation of MLAs from Gujarat visited the UP Legislative Assembly to learn about the novel e-Vidhan system for paperless proceedings that has been recently adopted by the UP state assembly.

    E-Vidhan System

    • The National e-Vidhan Application (NeVA) is a system for digitising the legislative bodies of all Indian states and the Parliament through a single platform.
    • It includes a website and a mobile app.
    • The house proceedings, starred/unstarred questions and answers, committee reports etc. will be available on the portal.
    • Nagaland became the first state to implement NeVA, in March this year.

    Significance of NeVA

    • There has been a shift towards digitisation in recent years by the government.
    • NeVA aims for streamlining information related to various state assemblies, and to eliminate the use of paper in day-to-day functioning.
    • PM Modi mentioned the idea of “One Nation One Legislative Platform” in November 2021.
    • A digital platform not only gives the necessary technological boost to our parliamentary system, but also connects all the democratic units of the country.

    Has this been done elsewhere?

    • Himachal Pradesh’s Legislative Assembly implemented the pilot project of NeVA in 2014, where touch-screen devices replaced paper at the tables of the MLAs.
    • Though both Houses of Parliament have not gone fully digital yet, governments world over are heading towards embracing the digital mode.
    • In December last year, the Government of Dubai became the world’s first government to go 100 percent paperless.
    • It announced all procedures were completely digitised.
    • This, as per a government statement, would cut expenditure by USD 350 million and also save 14-million-man-hours.

    What are the challenges?

    • Access to devices and reliable internet and electricity was an issue particularly for legislators representing rural constituencies.
    • Lack of training and heightened concerns over security are some more recent issues in the road to digitization.

     

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  • Presidential polls scheduled for July 18

    The presidential polls are expected to be held in July to decide on the successor of President Ram Nath Kovind, who will complete his term on July 24, 2022.

    The President of India

    • The President of India is recognised as the first citizen of the country and the head of the state.
    • The elected President of India is a part of the Union Executive along with several other members of the parliament including the Prime Minister, Attorney-General of India and the Vice – president.

    Electing the President

    • The provisions of the election of the President are laid down in Article 54 of the Constitution of India.
    • The Presidential and Vice-Presidential Election Act 1952 led to the establishment of this Constitutional provision.

    Qualifications to become the President of India

    The qualification of be the President of India are given below:

    • He/ She must be an Indian citizen
    • A person must have completed the age of 35.
    • A person must be qualified for election as a member of the House of the People.
    • Must not hold a government (central or state) office of profit
    • A person is eligible for election as President if he/she is holding the office of President or Vice-President.

    Actual course of election

    • The President of India is elected indirectly by an Electoral College following the system of proportional representation utilizing a single transferable vote system and secret ballots.
    • MPs and MLAs vote based on parity and uniformity values.

    Electoral College composition-

    (1) Legislative Assemblies of the States:

    • According to the provision of Article 333, every state’s Legislative Assembly must consist of not less than 60 members but not more than 500 members.

    (2) Council of States:

    • 12 members are nominated by the President of India based on skills or knowledge in literature, arts, science, and social service to act as the members of the Council of States.
    • In total, 238 represent act as representatives from both the States and Union Territories.

    (2) House of the People:

    • The composition of the House of People consists of 530 members (no exceeding) from the state territorial constituencies.
    • They are elected through direct election.
    • The President further elects 20 more members (no exceeding) from the Union Territories.

    Uniformity in the scale of representation of states

    To maintain the proportionality between the values of the votes, the following formula is used:

    Value of vote of an MLA= total no. of the population of the particular state/ number of elected MLAs of that state divided by 1000.

    Single vote system-

    • During the presidential election, one voter can cast only one vote.
    • While the MLAs vote may vary state to state, the MPs vote always remain constant.

    MPs and MLAs vote balance-

    • The number of the total value of the MPs votes must equal the total value of the MLAs to maintain the State and the Union balance.

    Quotas:

    • The candidate reaching the winning quota or exceeding it is the winner.
    • The formula sued is ‘Winning quota total number of poll/ no.of seats + 1’.

    Voters’ preference:

    • During the presidential election, the voter casts his vote in favor of his first preferred candidate.
    • However, in case the first preference candidate does not touch the winning quota, the vote automatically goes to the second preference.
    • The first preferred candidate with the lowest vote is eliminated and the votes in his/her favor are transferred to the remaining candidates.

    Why need Proportional representation?

    • The President of India is elected through proportional representation using the means of the single transferable vote (Article 55(3)).
    • It allows the independent candidates and minority parties to have the chance of representation.
    • It allows the practice of coalition with many voters under one government.
    • This system ensures that candidates who are elected don’t represent the majority of the electorate’s opinion.

    Why is President indirectly elected?

    If Presidents were to be elected directly, it would become very complicated.

    • It would, in fact, be a disaster because the public doesn’t have the absolute clarity of how the president-ship runs or if the candidate fits the profile of a president.
    • Another reason why the direct election system isn’t favorable is that the candidate running for the president’s profile will have to campaign around the country with the aid of a political party.
    • And, this will result in a massive political instability.
    • Moreover, it would be difficult and impossible for the government to hand out election machinery (given the vast population of India).
    • This will cost the government financially, and may end up affecting the economy as well.
    • The indirect election system is a respectable system for the First Man of India (rightly deserving).
    • The system/method of indirect electing of the president also allows the states to maintain neutrality and minimize hostility.

     

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  • Implications of GST Council ruling

    Context

    The Supreme Court of India recently ruled that “The recommendations of the GST Council are not binding on either the Union or the States…”.

    About GST Council

    • The GST Council is a federal body that aims to bring together states and the Centre on a common platform for the nationwide rollout of the indirect tax reform.
    • Article 279 (1) of the amended Indian Constitution states that the GST Council has to be constituted by the President within 60 days of the commencement of the Article 279A.
    • According to the article, the GST Council will be a joint forum for the Centre and the States. It consists of the following members:
    • 1] The Union Finance Minister will be the Chairperson.
    • 2] As a member, the Union Minister of State will be in charge of Revenue of Finance.
    • 3] The Minister in charge of finance or taxation or any other Minister nominated by each State government, as members.
    • The Council has to function as a platform to bring the Union and State governments together.
    • As a mark of cooperative federalism, the Council shall, unanimously or through a majority of 75% of weighted votes, decide on all matters pertaining to GST and recommend such decisions to the Union and State governments.
    • Article 279A (4) specifies that the Council will make recommendations to the Union and the States on the important issues related to GST, such as the goods and services will be subject or exempted from the Goods and Services Tax.
    • Article 246A confers simultaneous or concurrent powers on Parliament and the state legislatures to make laws relating to GST.
    • This article is in sharp contrast to the constitutional scheme that prevailed till 2017.

    Background of the case

    • In Union of India Anr. vs Mohit Minerals Pvt. Ltd., the Supreme Court of India on May 19, 2022 ruled on a petition relating to the levy of Integrated Goods and Services Tax (IGST) on ocean freight paid by the foreign seller to a foreign shipping company.
    • Mohit Minerals had filed a writ petition before the Gujarat High Court challenging notifications levying IGST on the ground that customs duty is levied on the component of ocean freight and the levy of IGST on the freight element in the course of transportation would amount to double taxation.
    • GST is paid by the supplier, but if the shipping line is located in a non-taxable territory, then GST is payable by the importer, the recipient of service.
    • Ocean freight is a method of transport by which goods and cargo is transported by ships through shipping lines.

    Important aspects of the judgement

    • Power to legislate simultaneously: Article 246A gives powers to the Union and State governments simultaneously to legislate on the GST.
    • In other words, the two tiers of the Indian Union can simultaneously legislate on matters of the GST (except the IGST, which is in the legislative domain of the Union government).
    • In this case, the Government of India had argued that “Neither can Article 279A override Article 246A nor can Article 246A be made subject to Article 279A.”
    • However, cooperative federalism is to operate through the GST Council to bring in harmony and alignment in matters pertaining to the GST from both governments.
    • Given this background, the Union government had almost delegated the powers to create laws under the GST Act Section 5(1) to the GST Council.
    • Persuasive value only: The Supreme Court of India adjudicated that the GST Council’s recommendations are non-qualified and the simultaneous legislating powers of the Union and State governments give only persuasive value to the Council’s recommendations.
    • The power of the recommendations rests on the practice of cooperative federalism and collaborative decision-making in the Council.

    Issues with voting rights in GST council

    • Inbalance in voting rights: The Union government holds one-third weight for its votes and all States have two-thirds of the weight for their votes.
    • This gives automatic veto power to the Union government because a resolution can be passed with at least three-fourths of the weighted votes.
    • This imbalance in the voting rights between the Union and State governments, makes democratic decision-making difficult.
    • Equal weight to all states creates political problems: Though all the States are not equal in terms of tax capacity, everyone has equal weight for their votes.
    • This creates another political problem as the smaller States with lesser economic stakes can be easily influenced by interest groups.
    • Debate on political lines: The debates in the GST Council will be on political lines rather than on the economics of taxation.
    •  When the States governed by Opposition parties are vocal on counter-points, the States governed by the same party at the Union government are mute spectators.

    Way forward

    • Work in a harmonised manner: The Supreme Court has recorded, “Since the Constitution does not envisage a repugnance provision to resolve inconsistencies between the Central and State laws on GST, the GST Council must ideally function, as provided by Article 279A(6) in a harmonised manner to reach a workable fiscal model through cooperation and collaboration.”
    • Cooperative federalism: The nuanced understanding of cooperative federalism shows that there is no space for one-upmanship in either of the two tiers of the Indian federal government and particularly for the Union government under a quasi-federal Constitution.

    Conclusion

    Given the lopsided power structure favouring the Union government in the GST Council, it is against the spirit of democracy and federalism that the finances of governments can be left to such bodies.

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  • How are Rajya Sabha MPs elected?

    Ahead of Rajya Sabha elections in four states, various parties have accommodated legislators from at least three states in resorts, away from potential poaching by rival parties.

    Do you know?

    • Only two UTs elect members to the Rajya Sabha, not all.
    • Polling is held only if the number of candidates exceeds the number of vacancies.
    • Independent members can also be elected etc.

    Read this newscard for all such interesting facts which can be directly asked in the prelims.

    Rajya Sabha Polls

    • A third of MPs in the Rajya Sabha (which is a permanent House and is not subject to dissolution), from each State, retire once in two years and polls are held to fill up the vacancies.
    • Only elected members of the State Legislative Assemblies can vote in a Rajya Sabha election.
    • The legislators send a batch of new members to the Upper House every two years for a six-year term.
    • In addition, vacancies that arise due to resignation, death or disqualification are filled up through by-polls after which those elected serve out the remainder of their predecessors’ term.

    Composition of Rajya Sabha

    • A bloc of MPs belonging to one or more parties can elect a member of their choice if they have the requisite numbers.
    • This is to avoid the principle of majority, which would mean that only candidates put up by ruling parties in the respective States will be elected.
    • The Delhi and Puducherry Assemblies elect members to the Rajya Sabha to represent the two UTs.

    What is the election process?

    • Polling for a Rajya Sabha election will be held only if the number of candidates exceeds the number of vacancies.
    • Since the strength of each party in the Assembly is known, it is not difficult to estimate the number of seats a party would win in the Rajya Sabha poll.
    • In many states, parties avoid a contest by fielding candidates only in respect to their strength. Where an extra candidate enters the fray, voting becomes necessary.
    • Candidates fielded by political parties have to be proposed by at least 10 members of the Assembly or 10% of the party’s strength in the House, whichever is less.
    • For independents, there should be 10 proposers, all of whom should be members of the Assembly.

    Voting procedure

    • Voting is by single transferable vote, as the election is held on the principle of proportional representation.
    • A single transferable vote means electors can vote for any number of candidates in order of their preference.
    • A candidate requires a specified number of first preference votes to win. Each first choice vote has a value of 100 in the first round.
    • To qualify, a candidate needs one point more than the quotient obtained by dividing the total value of the number of seats for which elections are taking place plus one.

    Example: If there are four seats and 180 MLAs voting, the qualifying number will be 180/5= 36 votes or value of 3,600.

    Why do not the Rajya Sabha polls have a secret ballot?

    • The Rajya Sabha polls have a system of the open ballot, but it is a limited form of openness.
    • As a measure to check rampant cross-voting, which was taken to mean that the vote had been purchased by corrupt means.
    • There is a system of each party MLA showing his or her marked ballots to the party’s authorised agent (called Whip), before they are put into the ballot box.
    • Showing a marked ballot to anyone other than one’s own party’s authorised agent will render the vote invalid.
    • Not showing the ballot to the authorised agent will also mean that the vote cannot be counted.
    • And independent candidates are barred from showing their ballots to anyone.

    Is there any NOTA option in voting?

    • The ECI issued two circulars, on January 24, 2014, and November 12, 2015, giving Rajya Sabha members the option to press the NOTA button in the Upper House polls.
    • However, in 2018, the Supreme Court struck down the provision, holding that the ‘none of the above’ option is only for general elections.
    • It cannot be applied to indirect elections based on proportional representation.

    Does cross-voting attract disqualification?

    • The Supreme Court, while declining to interfere with the open ballot system, ruled that not voting for the party candidate will not attract disqualification under the anti-defection law.
    • As voters, MLAs retain their freedom to vote for a candidate of their choice.
    • However, the Court observed that since the party would know who voted against its own candidate, it is free to take disciplinary action against the legislator concerned.

    Can a legislator vote without taking oath as a member of the Assembly?

    • While taking oath as a member is for anyone to function as a legislator, the Supreme Court has ruled that a member can vote in a Rajya Sabha election even before taking oath as a legislator.
    • It ruled that voting at the Rajya Sabha polls, being a non-legislative activity, can be performed without taking the oath.
    • A person becomes a member as soon as the list of elected members is notified by the ECI, it said.
    • Further, a member can also propose a candidate before taking the oath.

    Try this PYQ:

    Q. Consider the following statements:

    1. The Rajya Sabha has no power either to reject or to amend a Money Bill.
    2. The Rajya Sabha cannot vote on the Demands for Grants.
    3. The Rajya Sabha cannot discuss the Annual Financial Statement.

    Which of the statements given above is/are correct?

    (a) Only 1

    (c) 2 and 3 only

    (b) 1 and 2 only

    (d) 1, 2 and 3

     

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    Also read

    [Sansad TV] Perspective – Rajya Sabha: The Upper House

     

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  • British PM faces No-Confidence Vote

    British Prime Minister will face a no-confidence vote that could oust him from power.

    What is No-Confidence Vote?

    • If the government has to demonstrate its strength on the floor of the House, it can have a motion of confidence.
    • However, the opposition parties (or any member) can move a motion expressing want of confidence (no confidence) in the Council of Ministers.
    • The procedure is laid down under Rule 198 of the rules of procedure and conduct of the business of the Lok Sabha.
    • A no-confidence motion need not set out any grounds on which it is based.
    • Even when grounds are mentioned in the notice and read out in the House, they do not form part of the no-confidence motion.

    Its procedure

    • A no-confidence motion can be moved by any member of the House.
    • It can be moved only in the Lok Sabha and not Rajya Sabha.
    • Rule 198 of the Rules of Procedure and conduct of Lok Sabha specifies the procedure for moving a no-confidence motion.
    • The member has to give written notice of the motion before 10 am which will be read out by the Speaker in the House.
    • A minimum of 50 members have to accept the motion and accordingly, the Speaker will announce the date for discussion for the motion.
    • The allotted date has to be within 10 days from the day the motion is accepted. Otherwise, the motion fails and the member who moved the motion will be informed about it.
    • If the government is not able to prove its majority in the House, then the government of the day has to resign.

    How is the voting done?

    These are the modes by which voting can be conducted:

    1. Voice vote: In a voice vote, the legislators respond orally.
    2. Division vote: In case of a division vote, voting is done using electronic gadgets, slips or in a ballot box.
    3. Ballot vote: The ballot box is usually a secret vote – just like how people vote during state or parliamentary elections.

    What happens if there is a tie?

    • Following the vote, the person who has the majority will be allowed to form the government.
    • In case there is a tie, the speaker can cast his vote.

    Try this PYQ:

    Q.Consider the following statements regarding a No-Confidence Motion in India:

    1. There is no mention of a No-Confidence Motion in the Constitution of India.
    2. A Motion of No-Confidence can be introduced in the Lok Sabha only.

    Which of the statements given above is / are correct?

    (a) 1 only

    (b) 2 only

    (c) Both 1 and 2

    (d) Neither 1 nor 2

     

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    Back2Basics:  What is a Trust-Vote?

    • A confidence motion or a trust vote is a procedure for the government to prove its majority in the House.
    • A trust vote can take place by way of a motion of confidence which is moved by the government or brought by the opposition.
    • It is a motion normally proposed by the Prime Minister to test the majority in the Lok Sabha.
    • Such an exercise normally takes place when a new government is set to be formed.
    • Any party will first have to prove its majority on the floor of the House before taking over.
    • A trust vote can also be brought about if a government resigns and another party stakes a claim to form the government.

     

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  • Issues with Frivolous PIL Petitions

    A Public Interest Litigation (PIL) petitioner in the Supreme Court barely escaped having to pay ₹18 lakh for indulging in a “luxury litigation”.

    What is the news?

    • A Supreme Court Bench of Justice B.R. Gavai and Hima Kohli initially asked the litigant to pay ₹18 lakh, that is, ₹1 lakh for every one of the 18 minutes the case took up.
    • However, the court later, in its order, slashed the amount to ₹2 lakh on the request of the litigant’s counsel.

    Why did the apex court got disgusted?

    • The bench criticized the highly derogatory practice of filing frivolous petitions encroaching valuable judicial time.
    • This time can otherwise be utilised for addressing genuine concerns.

    What is Public Interest Litigation (PIL)?

    • PIL refers to litigation undertaken to secure public interest and demonstrates the availability of justice to socially-disadvantaged parties.
    • It was introduced by Justice P. N. Bhagwati in 1979.
    • It is the chief instrument through which judicial activism has flourished in India.
    • It is suited to the principles enshrined in Article 39A[a] of the Constitution to protect and deliver prompt social justice with the help of law.

    How was it introduced?

    • PIL is a relaxation on the traditional rule of locus standi.
    • Before 1980s the judiciary and the Supreme Court of India entertained litigation only from parties affected directly or indirectly by the defendant.
    • It heard and decided cases only under its original and appellate jurisdictions.
    • However, the Supreme Court began permitting cases on the grounds of PIL, which means that even people who are not directly involved in the case may bring matters of public interest to the court.
    • It is the court’s privilege to entertain the application for the PIL.

    Filing a PIL

    Any citizen can file a public case by filing a petition:

    • Under Art 32 of the Indian Constitution, in the Supreme Court
    • Under Art 226 of the Indian Constitution, in the High Court
    • Under 133 of the Criminal Procedure Code, in a Magistrate’s Court

    Parties against whom PILs can be filed

    • A PIL may be filed against state government, central government, municipal authority, private party.
    • Also, private person may be included in PIL as ‘Respondent’, after concerned of state authority.
    • g. a private factory in Mumbai which is causing pollution then PIL can be filed against the government of Mumbai, state pollution central board including that private factory of Mumbai.

    Importance of PIL

    • PIL gives a wider description to the fundamental rights to equality, life and personality, which is guaranteed under part III of the Constitution of India.
    • It also functions as an effective instrument for changes in the society or social welfare.
    • Through PIL, any public or person can seek remedy on behalf of the oppressed class by introducing a PIL.

    Issues with PIL

    • Off late, PILs have become a tool for publicity.
    • People file frivolous petitions which result in the wastage of time of the courts.
    • People have used them with a political agenda as well.
    • They unnecessarily burden the judiciary.
    • Even if the petition is eventually dismissed, the courts spend time and effort on them before dismissing them.

    How do frivolous petitions waste time?

    • At present, only judges have the power to dismiss a petition.
    • The Registry of the SC or HC only ensures that the technical requirements of filing a petition are fulfilled.
    • As a result of which petitions are admitted to the court irrespective of the merits of the case.

    Way forward: Preventing frivolous PILs

    The Supreme Court had issued eight directions in its Balwant Singh Chaufal Judgment to help constitutional courts separate genuine PIL petitions from the barmy ones:

    • It had asked every High Court to frame its own rules to encourage bona fide PIL petitions and curb the motivated ones
    • Verifying the credentials of the petitioner before entertaining the plea
    • Checking the correctness of the contents
    • Ensuring the petition involves issues of “larger public interest, gravity and urgency” which requires priority
    • Ensuring there is no personal gain, or oblique motive behind the PIL
    • Ensuring that it is aimed at redressal of genuine public harm or public injury

    Conclusion

    • PIL petitions have had a beneficial effect on the Indian jurisprudence and has alleviated the conditions of the citizens in general.
    • Such petitions bring justice to people who are handicapped by ignorance, indigence, illiteracy.

     

     

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