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Subject: Polity

  • Back in debate: Uniform Civil Code

    Poll-bound Uttarakhand CM’s announcement to prepare a draft of the Uniform Civil Code (UCC) in the State, raises questions over whether an individual State can bring its own family law code.

    What is a Uniform Civil Code?

    • A Uniform Civil Code is one that would provide for one law for the entire country, applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption, etc.
    • Article 44, one of the directive principles of the Constitution lays down that the state shall endeavor to secure a Uniform Civil Code for the citizens throughout the territory of India.
    • These, as defined in Article 37, are not justiciable (not enforceable by any court) but the principles laid down therein are fundamental in governance.

    Why need UCC?

    • UCC would provide equal status to all citizens
    • It would promote gender parity in Indian society.
    • UCC would accommodate the aspirations of the young population who imbibe liberal ideology.
    • Its implementation would thus support the national integration.

    Hurdles to UCC implementation

    • There are practical difficulties due to religious and cultural diversity in India.
    • The UCC is often perceived by the minorities as an encroachment on religious freedom.
    • It is often regarded as interference of the state in personal matters of the minorities.
    • Experts often argue that the time is not ripe for Indian society to embrace such UCC.

     UCC vs. Right to Freedom of Religion

    • Article 25 lays down an individual’s fundamental right to religion;
    • Article 26(b) upholds the right of each religious denomination or any section thereof to “manage its own affairs in matters of religion”;
    • Article 29 defines the right to conserve distinctive culture.
    • An individual’s freedom of religion under Article 25 is subject to “public order, health, morality” and other provisions relating to FRs, but a group’s freedom under Article 26 has not been subjected to other FRs.
    • In the Constituent Assembly, there was division on the issue of putting UCC in the fundamental rights chapter. The matter was settled by a vote.
    • By a 5:4 majority, the fundamental rights sub-committee headed by Sardar Patel held that the provision was outside the scope of FRs and therefore the UCC was made less important.

    Enacting and Enforcing UCC: A reality check

    • Fundamental rights are enforceable in a court of law.
    • While Article 44 uses the words “the state shall endeavor”, other Articles in the ‘Directive Principles’ chapter use words such as “in particular strive”; “shall, in particular, direct its policy”; “shall be an obligation of the state” etc.
    • Article 43 mentions “state shall endeavor by suitable legislation” while the phrase “by suitable legislation” is absent in Article 44.
    • All this implies that the duty of the state is greater in other directive principles than in Article 44.

    What are more important — fundamental rights or directive principles?

    • There is no doubt that fundamental rights are more important.
    • The Supreme Court held in Minerva Mills (1980): Indian Constitution is founded on the bedrock of the balance between Parts III (Fundamental Rights) and IV (Directive Principles).
    • To give absolute primacy to one over the other is to disturb the harmony of the Constitution.
    • Article 31C inserted by the 42nd Amendment in 1976, however, lays down that if a law is made to implement any directive principle, it cannot be challenged on the ground of being violative of the FRs under Articles 14 and 19.

    What about Personal Laws?

    • Citizens belonging to different religions and denominations follow different property and matrimonial laws which are an affront to the nation’s unity.
    • If the framers of the Constitution had intended to have a UCC, they would have given exclusive jurisdiction to Parliament in respect of personal laws, by including this subject in the Union List.
    • But “personal laws” are mentioned in the Concurrent List.

    Various customary laws

    • All Hindus of the country are not governed by one law, nor are all Muslims or all Christians.
    • Muslims of Kashmir were governed by a customary law, which in many ways was at variance with Muslim Personal Law in the rest of the country and was, in fact, closer to Hindu law.
    • Even on registration of marriage among Muslims, laws differ from place to place.
    • In the Northeast, there are more than 200 tribes with their own varied customary laws.
    • The Constitution itself protects local customs in Nagaland. Similar protections are enjoyed by Meghalaya and Mizoram.
    • Even reformed Hindu law, in spite of codification, protects customary practices.

    Minority opinion in the Constituent Assembly

    • Some members sought to immunize Muslim Personal Law from state regulation.
    • Mohammed Ismail, who thrice tried unsuccessfully to get Muslim Personal Law exempted from Article 44, said a secular state should not interfere with the personal law of people.
    • B Pocker Saheb said he had received representations against a common civil code from various organizations, including Hindu organizations.
    • Hussain Imam questioned whether there could ever be uniformity of personal laws in a diverse country like India.
    • B R Ambedkar said, “no government can use its provisions in a way that would force the Muslims to revolt”.
    • Alladi Krishnaswami, who was in favor of a UCC, conceded that it would be unwise to enact UCC ignoring strong opposition from any community.
    • Gender justice was never discussed in these debates.

     Conclusion

    • Article 44 of the Constitution creates an obligation upon the State to endeavour to secure for citizens a Uniform Civil Code throughout the country.
    • The purpose behind UCC is to strengthen the object of “Secular Democratic Republic” as enshrined in the Preamble of the Constitution.
    • This provision is provided to effect the integration of India by bringing communities on the common platform on matters which are at present governed by diverse personal laws.
    • Hence UCC should be enforced taking into confidence all the sections of Indian society.
    • Goa’s Portuguese Civil Code of 1867 is an example of a common family law existing in harmony.

     

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  • What is Habeas Corpus?

    The Supreme Court has decided to examine a habeas corpus plea made by the children of a Pakistan national who they believe has been unlawfully detained for seven years.

    What is Habeas Corpus?

    • Habeas corpus is a recourse in law through which a person can report an unlawful detention or imprisonment to a court.
    • He/she can request that the court order the custodian of the person, usually a prison official, to bring the prisoner to court, to determine whether the detention is lawful.
    • In India the power to issue a writ of habeas corpus is vested only in the Supreme Court and the High Court.
    • Habeas corpus is the writ which was visualized as an effective means to provide a quick remedy to a person who has lost his personal liberty without any legal justification.

    What is Article 32?

    • Article 32 deals with the ‘Right to Constitutional Remedies’, or affirms the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred in Part III of the Constitution.
    • It is one of the fundamental rights listed in the Constitution that each citizen is entitled.
    • It states that the Supreme Court “shall have the power to issue directions or orders or writs for the enforcement of any of the rights conferred by this Part”.
    • The right guaranteed by this Article “shall not be suspended except as otherwise provided for by this Constitution”.
    • Dr B R Ambedkar has called it the very soul and heart of the Constitution. It cannot be suspended except during the period of Emergency.

    Rights protected by A32

    • The article is included in Part III of the Constitution with other fundamental rights including to Equality, Freedom of Speech and Expression, Life and Personal Liberty, and Freedom of Religion.
    • Only if any of these fundamental rights is violated can a person can approach the Supreme Court directly under Article 32.

    Types of Writs under it

    Both the High Courts and the Supreme Court can be approached for violation or enactment of fundamental rights through five kinds of writs:

    1. Habeas corpus (related to personal liberty in cases of illegal detentions and wrongful arrests)
    2. Mandamus — directing public officials, governments, courts to perform a statutory duty;
    3. Quo Warranto — to show by what warrant is a person holding public office;
    4. Prohibition — directing judicial or quasi-judicial authorities to stop proceedings which it has no jurisdiction for; and
    5. Certiorari — re-examination of an order given by judicial, quasi-judicial or administrative authorities.
    • In civil or criminal matters, the first remedy available to an aggrieved person is that of trial courts, followed by an appeal in the High Court and then the Supreme Court.
    • When it comes to violation of fundamental rights, an individual can approach the High Court under Article 226 or the Supreme Court directly under Article 32.

     

     

    Try this PYQ:

    Q.Which of the following is included in the original jurisdiction of the Supreme Court?

    1. Dispute between the Government of India and one or more States
    2. A dispute regarding elections to either House of the parliament or that of Legislature of a State
    3. A dispute between the Government of India and Union Territory
    4. A dispute between two or more States.

    Select the correct answer using the codes given below:

    (a) 1 and 2

    (b) 2 and 3

    (c) 1 and 4

    (d) 3 and 4

     

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  • Governor and Related issues

    Last week, West Bengal CM blocked its Governor on Twitter. Days earlier, the Tamil Nadu government had taken exception to Governor’s R-Day speech articulating the benefits of NEET.

    These are two of many examples of bitterness between states and Governors.

    Who is a Governor?

    • Parallel to President: The Governors of the states of India have similar powers and functions at the state level as those of the President of India at the Central level.
    • Nominal head: The governor acts as the nominal head whereas the real power lies with the Chief Ministers of the states and her/his councils of ministers.
    • Similar offices: Governors exist in the states while Lieutenant Governors or Administrators exist in union territories including National Capital Territory of Delhi.
    • Non-local appointees: Few or no governors are local to the state that they are appointed to govern.

    Governor-State Relations

    • Acting on aid and advice: Although envisaged as an apolitical head who must act on the advice of the council of ministers, the Governor enjoys certain powers granted under the Constitution.
    • Discretion: He has monopoly for giving or withholding assent to a Bill passed by the state legislature, or determining the time needed for a party to prove its majority, or which party must be called first do so, generally after a hung verdict in an election.
    • Apparatus of interaction: There are no provisions laid down for the manner in which the Governor and the state must engage publicly when there is a difference of opinion. The management of differences has traditionally been guided by respect for each other’s boundaries.

    Various friction points

    In recent years, these have been largely about:

    1. Selection of the party to form a government
    2. Deadline for proving majority
    3. Sitting on Bills
    4. Passing negative remarks on the state administration

    Recent contentious case

    • J&K: In November 2018, then J&K Governor dissolved the Assembly amid indications that various parties were coming together to form the government.
    • Maharashtra: In 2019, after a hung verdict in Maharashtra Governor quietly invited a party leader and administered him oath as CM at 6am early morning. This government lasted just 80 hours.
    • Nagaland: Governor has criticised affairs of the state and allegedly interfered in administration.

    Is such friction recent?

    • Allegations of the Centre using the Governor’s position to destabilise state governments have been made since the 1950s.
    • In 1959, Kerala’s government was dismissed merely based on a report by the Governor.
    • Several state governments have been dismissed since then, including 63 through President’s Rule orders issued by Governors between 1971 and 1990.

    Why does this happen?

    • Political appointment: This is because Governors have become political appointees. Politicians become Governors and then resign to fight elections.
    • Nature of appointment: In the Constitution, there are no guidelines for exercise of the Governor’s powers, including for appointing a CM or dissolving the Assembly.
    • Defying constituent assembly: The Constituent Assembly envisaged governor to be apolitical.
    • Nature of appointment: The CM is answerable to the people. But the Governor is answerable to no one except the Centre.
    • Constitutional vacuum: Once can sugercoat it with ideas of constitutional morality and values, but the truth is there is a fundamental defect in the Constitution.
    • Security of Tenure: There is no provision for impeaching the Governor, who is appointed by the President on the Centre’s advice. While the Governor has 5-year a tenure, he can remain in office only until the pleasure of the President.
    • Powers in legislation: There is no limit set for how long a Governor can withhold assent to a Bill.

    What reforms have been suggested?

    • From the Administrative Reforms Commission of 1968 to Sarkaria Commission of 1988 and the one mentioned above, several panels have recommended reforms, such as:
    1. Selection of the Governor through a panel comprising the PM, Home Minister, Lok Sabha Speaker and the CM,
    2. Fixing his tenure for five years
    3. Provision to impeach the Governor by the Assembly
    • No government has implemented any of these recommendations.

     

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  • What is Privilege Motion?

    An MP from Telangana submitted a Privilege Motion against PM regarding his remarks over the bifurcation of the erstwhile state of Andhra Pradesh.

    What is Parliamentary Privilege?

    • Parliamentary privilege refers to the right and immunity enjoyed by legislatures.
    • The legislators are granted protection against civil or criminal liability for actions done or statements made in the course of their legislative duties.
    • They are granted so that the MPs/MLAs can effectively discharge their functions.
    • The powers, privileges, and immunities of either House of the Indian Parliament and of its members and committees are laid down in Article 105 of the Constitution.
    • Article 194 deals with the powers, privileges and immunities of the State Legislatures, their members and their committees.

    What is a Privilege Motion?

    • When any of the rights and immunities are disregarded, the offence is called a breach of privilege and is punishable under the law of Parliament.
    • A notice is moved in the form of a motion by any member of either House against those being held guilty of breach of privilege.
    • Each House also claims the right to punish as contempt actions which, while not breach of any specific privilege, are offenses against its authority and dignity.

    What are the rules governing privilege?

    • Rule No 222 in Chapter 20 of the Lok Sabha Rule Book and correspondingly Rule 187 in Chapter 16 of the Rajya Sabha rulebook govern privilege.
    • It says that a member may, with the consent of the Speaker or the Chairperson, raise a question involving a breach of privilege either of a member or of the House or of a committee thereof.
    • The rules however mandate that any notice should be relating to an incident of recent occurrence and should need the intervention of the House.
    • Notices have to be given before 10 am to the Speaker or the Chairperson.

    What is the role of the Speaker/Rajya Sabha Chair?

    • The Speaker/RS chairperson is the first level of scrutiny of a privilege motion.
    • The Speaker/Chair can decide on the privilege motion himself or herself or refer it to the privileges committee of Parliament.
    • If the Speaker/Chair gives consent under Rule 222, the member concerned is given an opportunity to make a short statement.

    What is the Privileges Committee?

    • In the Lok Sabha, the Speaker nominates a committee of privileges consisting of 15 members as per respective party strengths.
    • A report is then presented to the House for its consideration. The Speaker may permit a half-hour debate while considering the report.
    • The Speaker may then pass final orders or direct that the report be tabled before the House.
    • A resolution may then be moved relating to the breach of privilege that has to be unanimously passed.
    • In the Rajya Sabha, the deputy chairperson heads the committee of privileges, which consists of 10 members.

    Answer this PYQ in the comment box:

    Q.With reference to the Parliament of India, which of the following Parliamentary Committees scrutinizes and reports to the House whether the powers to make regulations, rules, sub-rules, by-laws etc. conferred by the constitution of delegated by the Parliament are being properly exercised by the Executive within the scope of such delegation?

    (a) Committee on Government Assurances

    (b) Committee on Subordinate Legislation

    (c) Rules Committee

    (d) Business Advisory Committee

     

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  • Central Media Accreditation Guidelines 2022

    The Centre has issued a new policy on the accreditation of journalists, introducing an entire section about reasons that can result in the suspension of the accreditation.

    What is the Policy for Accreditation?

    • The new policy lays down guidelines on how PIB accreditation will be granted to eligible journalists.
    • It is prepared by the Ministry of Information and Broadcasting (I&B) and issued by the Press Information Bureau.
    • At the moment there are 2,457 PIB-accredited journalists in the country.

    Conditions laid

    • For the first time, it specifies conditions that can result in the journalist losing accreditation.
    • The new policy has ten points that may result in the accreditation being canceled, including if a journalist is charged with a “serious cognizable offense”.
    • If a journalist acts in a manner that is prejudicial to the following conditions, his/ her accreditation can be canceled:
    1. Sovereignty and integrity of India
    2. Security of the nation
    3. Friendly relations with foreign states
    4. Public order
    5. Decency or morality or
    6. Defamation or incitement of an offense
    7. In relation to Contempt of Court
    • Accreditation is also liable to be withdrawn/suspended if it is found to have been misused.

    Who is eligible for accreditation?

    • Applications for accreditation are vetted by a Central Press Accreditation Committee headed by the DG, PIB.
    • After a journalist applies, a mandatory security check is conducted by the Home Ministry, which includes police verification of the journalist’s residence.

    (1) Journalists

    • But a journalist needs to have a minimum of five years of professional experience as a full-time working journalist or a cameraperson in a news organization, or a minimum of 15 years as a freelancer to become eligible.
    • Veteran journalists, with over 30 years of experience, and who are older than 65 years of age, too are eligible.
    • Accreditation is only available for journalists living in the Delhi NCR region.
    • Similar rules apply to foreign news organizations and foreign journalists.

    (2) Newspapers

    • A newspaper or a periodical needs to have a minimum daily circulation of 10,000, and news agencies must have at least 100 subscribers.

    (3) Digital platforms and others

    • The policy has introduced a provision that journalists working with digital news platforms are also eligible, provided the website has a minimum of 10 lakh unique visitors per month.

    How does accreditation help?

    • Professional status: The policy mentions that the accreditation does not “confer any official or special status” on the journalists, but only recognizes them as “professional working journalists”.
    • Reporting important offices: In certain events where VVIPs or dignitaries such as the President, the Vice President, or the Prime Minister are present, only accredited journalists are allowed to report from the premises.
    • Source Identity: Accreditation ensures that a journalist is able to protect the identity of his or her sources.
    • Authencity: An accredited journalist does not have to disclose who he or she intends to meet when entering offices of union ministries, as the accreditation card is valid for entry.
    • Perks and benefits: Accreditation brings certain benefits for the journalist and his or her family, like being included in the Central Government Health Scheme, and some concessions on railway tickets.

    What concerns does this raise?

    • Intimidation: This could result, at times, in such powers trying to intimidate journalists or to block information from coming out.
    • Alleged defamation: A common tool used by powerful people is filing of defamation cases against journalists and media platforms.
    • Prevents constructive criticism: Journalists often report on issues and policy decisions that the government may not like.
    • Subjectivity of criteria: The new policy’s provision about acting “in manner which is prejudicial to the sovereignty and integrity of India can be subjective.
    • No watchdog: The policy is silent on who will decide if a journalist’s conduct violates any of these conditions.
    • Media trials: Any investigative story on sensitive issues could be held to be in violation of any of these provisions.

     

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  • Opinion polls

    Every election season, we find television channels flooded with opinion polls and subsequently exit polls after the casting of votes.

    What are Opinion Polls?

    • Opinion polls are similar to surveys or an inquiry designed to gauge public opinion about a specific issue or a series of issues in a scientific and unbiased manner.
    • This term has got wide recognition for assessing outcomes of elections in India.
    • In most democracies, opinion and exit polls are common during elections.
    • In India, the ECI allows the dissemination of the exit poll results half an hour after the end of polling on the last poll day.

    How are they conducted?

    • Interviewers/reporters ask questions of people chosen at random from the population being measured.
    • Responses are given, and interpretations are made based on the results.
    • It is important in a random sample that everyone in the population being studied has an equal chance of participating.
    • Otherwise, the results could be biased and, therefore, not representative of the population.

    Need of such polls

    • Popular opinion: Polls are simply a measurement tool that tells us how a population thinks and feels about any given topic.
    • Specific viewpoint: Polls tell us what proportion of a population has a specific viewpoint.
    • Opportunity to express: Opinion polling gives people who do not usually have access to the media an opportunity to be heard.

    Issues with such polls (in context to elections)

    • Authenticity: Critics have often questioned their authenticity.
    • Manipulation of voters: This largely manipulates the voting behavior.
    • Sensationalization by media: The media, on the other hand, invariably opposes the idea of a ban as seat forecasts attract primetime viewership.
    • Ridiculing the public mandate: The exit polls largely disrespect public opinions inciting confusion regarding the election mandate.

    Why does it persist in India?

    Ans. Exercise of Free Speech

    • The opposition to the ban in India is mainly on the ground that freedom of speech and expression is granted by the Constitution (Article 19).
    • What is conveniently forgotten is that this freedom is not absolute and allows for “reasonable restrictions” in the same article.

    Limited restrictions that we have in India

    • RP Act: The Indian Penal Code and Representation of the People Act, 1951 do contain certain restrictions against disinformation.
    • Restrictions on A19: While the Constitution allows for reasonable restrictions on freedom of expression, its mandate to the ECI for free and fair elections is absolute.
    • Supreme Court interpretations: The Supreme Court (SC), in a series of judgments, has emphasized this requirement.
    • Basic structure doctrine: It considers free and fair elections is the basic structure of the Constitution (PUCL vs Union of India, 2003; NOTA judgment, 2013).

    Examples of restrictions

    • Restrictions are imposed in many countries, extending from two to 21 days prior to the poll — Canada, France, Italy, Poland, Turkey, Argentina, Brazil, Colombia, to name a few examples.
    • In India, all political parties too have opposed these polls, demanding a ban — except when they are shown as winning.

    Why does the ECI feel that opinion polls interfere with free and fair elections?

    • Prevalence of paid news in India: Having seen “paid news” in action, it apprehends that some opinion polls may be sponsored, motivated and biased.
    • Opacity: Almost all polls are non-transparent, providing little information on the methodology.
    • Propaganda: Subtle propaganda on casteist, religious and ethnic basis as well as by the use of sophisticated means like the alleged poll surveys create public distrust in poll process.
    • Disinformation: With such infirmities, many “polls” amount to misinformation that can result in “undue influence”, which is an “electoral offense” under IPC Section 171 (C). It is a “corrupt practice” under section 123 (2) of the RP Act.
    • Betting: The polling agencies manipulate the margin of error, victory margin for candidates, seat projections for a party or hide negative findings.

    Call for a ban in India

    • The demand for a ban on opinion polls is not new.
    • At all-party meets called by the Election Commission in 1997 and 2004, there was unanimous demand for a ban.
    • The difference of opinion was only on whether the ban should apply from the announcement of the poll schedule or the date of notification.

    Moves by ECI

    • In 1998, the ECI issued guidelines that were challenged in the SC.
    • A five-judge Constitution Bench asked the ECI how it would enforce these decisions in the absence of a law.
    • Realizing its weakness, the ECI withdrew the guidelines.
    • Unfortunately, this left the constitutionality of the issue

    Way forward

    • Independent regulator: Ideally a body like the British Polling Council would be a viable option. India could set up its own professional, self-regulated body on the same lines say Indian Polling Council.
    • Mandatory disclosure: All polling agencies must disclose for scrutiny the sponsor, besides sample size, methodology, time frame, quality of training of research staff, etc.

     

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  • Information and Broadcasting Ministry’s powers to regulate content on TV

    The Kerala High Court will pronounce its judgment on an Information and Broadcasting Ministry (I&B) order banning a Malayalam news channel over its connections with radical groups.

    Sectors regulated by I&B Ministry

    • Until last year, it had the power to regulate content across all sectors barring the internet.
    • The sectors include TV channels, newspapers and magazines, movies in theatres and on TV, and the radio.
    • Since Feb 2021, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, extended its regulatory powers over internet content.
    • It now exercises powers especially on digital news and OTT platforms such as Netflix, Amazon Prime, or Hotstar.

    What kind of powers does it have?

    (a) Film Censoring

    • For example, the Central Board of Film Certification (CBFC) has a mandate to give any film that will be played in a theatre, a rating indicating the kind of audience it is suitable for.
    • In practice, however, the CBFC has often suggested changes or cuts to a film before giving it a certification.
    • While it isn’t the CBFC’s mandate to censor a film, it can withhold giving a rating unless the filmmaker agrees to its suggestions.

    (b) TV Censoring

    • When it comes to TV channels, the government last year came up with a three-tier grievance redressal structure for viewers to raise concerns, if any.
    • A viewer can successively approach the channel, then a self-regulatory body of the industry, and finally the I&B Ministry, can issue a show-cause notice to the channel,.
    • It can then refer the issue to an inter-ministerial committee (IMC).

    (c) OTT and other platforms

    • For content on OTT platforms too, there is a similar structure.

    Power to Ban news channels

    • It has in the past issued orders to temporarily ban news and other channels.
    • In November 2016, it imposed a one-day ban on NDTV for its reporting of the Pathankot terror attack.
    • Violation can lead to revocation of a channel’s uplinking license (for sending content to a satellite) or downlinking license (for broadcasting to viewers through an intermediary).
    • In print, based on the recommendations of the Press Council of India, the government can suspend its advertising to a publication.
    • And last year’s IT rules allow I&B Ministry to issue orders to ban websites based on their content.

    What kind of content is not allowed?

    • There are no specific laws on content allowed or prohibited in print and electronic media, radio, films, or OTT platforms.
    • The content on any of these platforms has to follow the free speech rules of the country.
    • Article 19(1) while protecting the freedom of speech, also lists certain “reasonable restrictions” including content related to the security of the state, friendly relations with foreign states, public order, decency, morality, etc.
    • Action can be taken if any of these restrictions are violated.

    Do other agencies play a role?

    • There is no direct involvement, as the powers to regulate content rest only with the I&B Ministry.
    • However, the ministry relies on inputs from other ministries, as well as intelligence agencies.
    • In the recent case, its licenses were revoked because the Home Ministry had denied it security clearance, which is essential as part of the policy.
    • There is also a new mechanism the I&B Ministry adopts.
    • It has used emergency powers it has under the new IT Rules to block certain YouTube channels and social media accounts based on inputs from intelligence agencies.

     

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  • Upsetting the Centre-state balance

    Context

    The proposed amendment to Rule 6 of the IAS (Cadre) Rules 1954, seeks to do away with the consent of both the officer and the state government.

    What makes All-India services different?

    • Article 309: Under Article 309 of the Constitution, the Centre and states are empowered to erect and maintain services for running their administration.
    • Both the Centre and the states exercise full control over their services independently of each other.
    • Article 312: Unlike a central service or state service, an All-India Service is compositely administered under Article 312.
    • While recruitment and allotment to a cadre (state) are determined by the Centre, the states determine the work and posting.
    • Balance between Centre and states: Hence, All-India Services are carefully balanced between the Centre and the states.
    • The Indian Administrative Service (IAS), Indian Police Service (IPS), and Indian Forest Service (IFS) are the three All-India Services.
    • Being an All-India Service, officers of the IAS are posted to the states, from where they are deputed to the Centre with the tripartite consent of the officer, the state government and the central government.

    Issues with the proposed changes

    • The proposed amendment to Rule 6 of the IAS (Cadre) Rules 1954, seeks to do away with the consent of both the officer and the state government.
    • Reasons for amendment: The reason for the amendment, as declared by the central government, is to ensure adequate availability of IAS officers for central deputation, which at present is “not sufficient to meet the requirement at the Centre”.
    • However, the central government has gone beyond its declared reason and stretched the cadre rules to also allow for appropriation of IAS officers “in public interest”.
    • The Centre has virtually conferred upon itself the plenipotentiary power to pull out any number of IAS officers from the states.
    • States may divest IAS officers of key posts: To protect their administration from becoming paralysed, states may resort to altering their Transaction of Business Rules to divest IAS officers of key posts in the state, and vesting the same with the state officers.
    • Alternately, states may conjure provisional berths for retired bureaucrats to re-enter administration as special appointees, outside the cadre rules.
    • Flouting of cadre rules by States: As it is, the implementation of cadre rules is left to the mercy of the states, with the Centre showing a disinclination to enforce them.
    • Some states openly flout the cadre rules with impunity in matters of postings and transfers.
    • The Civil Services Board has been rendered impotent, non-cadre officers are being unilaterally appointed to IAS cadre posts, and the minimum tenure guarantee is openly flouted.
    • Against federalism: Not only could it allow distrust to fester in Centre-state relations, it would also result in the functional depreciation of the IAS in the states.

    Conclusion

    It is important for the states to be reassured that they are in control of their administration, and for the service to not lose its relevance.

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  • Legislative Powers of Governor

    Tamil Nadu CM has charged that the Governor that he had failed to perform the duty vested in him by the Constitution when it came to deciding on the Bill adopted in the Legislative Assembly against the National Eligibility cum Entrance Test (NEET).

    What is the issue?

    • The Governor had returned the Bill to the Assembly Speaker instead of forwarding it for Presidential assent.

    Constitutional Powers of the Governor

    • Article 154: The executive power of the state shall be vested in the
      governor and shall be exercised by him either directly or through
      officers subordinate to him in accordance with this Constitution.
    • Article 163 (1): There shall be a council of ministers with the chief minister as the head to aid and advise the governor in the exercise of his functions, except in so far as he is required to exercise his functions in his discretion.
    • Article 163 (2): If any question arises whether a matter falls within the governor’s discretion or not, the decision of the governor is final and the validity of anything done by him cannot be called in question on the ground that he ought or ought not to have acted in his discretion.
    • The governor has constitutional discretion in the following cases:
      a) Reservation of a bill for the consideration of the President (Articles 200 and 201).
      b) Recommendation for the imposition of the President’s Rule in the state (Article 356).
      c) While exercising his functions as the administrator of an adjoining Union territory (in case of an additional charge).
      d) Special responsibility in 5th and 6th schedule areas.
      e) Seeking information from the chief minister with regard to the administrative and legislative matters of the state.
    • Also, the governor has situational discretion (i.e., the hidden discretion derived from the exigencies of a prevailing political situation) in the following cases:
      a) Appointment of the chief minister when no party has a clear-cut majority in the state legislative assembly or when the chief minister in office dies suddenly and there is no obvious successor.
      b) Dismissal of the council of ministers when it cannot prove the confidence of the state legislative
      assembly.
      c) Dissolution of the state legislative assembly if the council of ministers has lost its majority.

    What are the Legislative Powers of Governor?

    Governor summons the sessions of both houses of the state legislature and prorogues them.

    • The governor can even dissolve the State Legislative Assembly.
    • These powers are formal and the governor’s use of these powers must comply with the advice of the Council of Ministers headed by the Chief Minister.
    • He addresses the first session of the state legislature after the general elections in the state.

    Appointments to the legislature

    • He appoints 1/6th members of the State Legislative Council in states wherever there is a bicameral legislature.
    • He nominates one member in the state legislative assembly from the Anglo-Indian Community if in view; the community is not well represented.
    • Governor is empowered under Article 192 to disqualify a member of the State legislature when the election commission recommends that the legislator is no longer complying with provisions of Article 191.

    Passing of Bills

    • All the bills passed by the state legislatures are sent to the Governor for assent.
    • Once a bill is sent to Governor for assent, he can:
      a) Give assent to the bill
      b) Withhold the assent
      c) Return the bill to the legislature for reconsideration if it is not a money bill.
      d) If the bill is re-passed by the legislature with or without amendment, the governor has to give assent to the bill.
      e) Reserve the bill for consideration of the President.

    When is the Bill sent to the President?

    This is done under the circumstances when a bill:

    1. Violates the constitution or against directive principles of state policy (DPSP)
    2. Conflict with union powers
    3. Against the larger interest of the country and people
    4. May endanger the position of the high court in the state.

    Ordinance making power

    • When the state legislature is not in session and the governor considers it necessary to have a law, then the governor can promulgate ordinances.
    • These ordinances are submitted to the state legislature at its next session.
    • They remain valid for no more than six weeks from the date the state legislature is reconvened unless approved by it earlier.

    Others

    • As per Articles 165 and 177, Governor can ask the Advocate General to attend the proceedings of both houses of the state legislature and report to them any unlawful functioning if any.

    Concerns with the role of governor

    • Misuse of discretionary powers: States allege that this provision has often been misused by the governor who acts on the behest of the union government which is opposed to the basic scheme of the Indian Constitution.
    • Appointment by centre: This often leads to the appointment of persons aligning with the party’s ideology to the post of Governor and he/she remains faithful to the Union government of the day rather than acting on the advice of the State Executive.
    • Arbitrary removal: Even after Supreme Court Judgement in B.P. Singhal v. Union of India calling for a fixed tenure for Governors to encourage neutrality and fairness in the discharge of their duties, it is not being implemented on the ground.

     

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  • Comprehensive Amendment of Criminal Laws

    The Central government has initiated the process for comprehensive amendment of criminal laws in India in consultation with all stakeholders

    Criminal Laws in India

    Indian criminal laws are divided into three major acts:

    1. Indian Penal Code, 1860: It is a comprehensive code intended to cover all substantive aspects of criminal law.
    2. Code of Criminal Procedure, 1973: CrPC defines the rules with which substantive laws can be enforced.
    3. Indian Evidence Act, 1872: It contains a set of rules and allied issues governing the admissibility of evidence in the Indian courts of law.

    Other laws

    Besides these major acts, special Criminal Laws are also passed by the Indian Parliament which includes:

    • Narcotic Drugs and Psychotropic Substances Act
    • Prevention of Corruption Act
    • Food Adulteration Act
    • Dowry Prohibition Act
    • The Defence of India Act, etc.

    Issues with these laws

    • Colonial ideas prevail in the code.
    • Some laws don’t reflect the aspirations of India’s liberal Constitution
    • It does not recognize the individual agency of citizens of free India
    • Too many laws promote patriarchal attitudes, biased against women
    • Sedition laws are misused by the state
    • Tech crimes, cyber crimes, sexual offenses need to be defined
    • Risk of excessive policing, which leads to harassment of people.
    • Need to harmonize statute books with court rulings, which have often expanded the rights of people.
    • Some provisions are disadvantageous for the underprivileged who are trapped in jail for long but favour the powerful, who get bail very easily
    • Influence of media trials on the judiciary while using the IPC.

    Why amend them?

    • The evolution of criminal laws is a continuous process.
    • They need to be made in accordance with the contemporary needs and aspirations of people.
    • Malimath Committee has called for reform in India’s criminal justice system.

    Progress made to date

    • The entire procedure is a long-drawn-out one and no time limit can be fixed or given for this legislative process.
    • Legislation of such laws is a complex and lengthy exercise given the spectrum of divergent views of stakeholders.
    • The Home Ministry is seeking suggestions from various stakeholders and judicial luminaries in this regard.

     

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