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Subject: Polity

  • 25 years of Panchayats (Extension to the Scheduled Areas) Act, 1996 (PESA)

    The Ministry of Tribal Affairs has celebrated the 25th year of the inauguration of the Panchayats (Extension to Scheduled Areas) Act 1996 (PESA)’ as a part of Azadi Ka Amrit Mahotsav.

    What is PESA?

    • The PESA is a law enacted by the govt. for ensuring self-governance through traditional Gram Sabhas for people living in the Scheduled Areas of India.
    • Scheduled Areas are areas identified by the Fifth Schedule of the Constitution of India.

    What are Scheduled Areas?

    • “Scheduled Areas” mean the Scheduled Areas as referred to in Clause (1) of Article 244 of the Constitution.
    • They are found in ten states of India which have predominant population of tribal communities.
    • At present, Scheduled Areas have been declared in the States of AP (including Telangana), Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, MP, Maharashtra, Odisha and Rajasthan.

    Powers granted to Gram Sabha/Panchayats

    • Land acquisition: To be consulted on matters of land acquisition and resettlement.
    • Mining licencing: Grant prospecting license for mining lease for minor minerals and concessions for such activities.
    • Water Bodies: Planning and management of minor water bodies.
    • Regulation of Liquor: The power to enforce prohibition or to regulate or restrict the sale and consumption of any intoxicant.
    • Minor Forest Produces: The ownership of MFPs
    • Land reforms: The power to prevent alienation of land and to restore any unlawfully alienated land of a scheduled tribe.
    • Village Markets: The power to manage village markets.
    • Money Lending: The power to exercise control over money lending to scheduled tribes.

    Role of Governor in Implementation of PESA

    (1) Report as sought by the President:

    • As per para 3 of the Fifth Schedule, the Governor therein is required to make a report to the President regarding the administration of the Scheduled Areas.
    • The Attorney General had advised the Home Ministry that the role of the governor in sending this report is discretionary.

    (2) Applicability of certain laws:

    • An even more significant role of the Governor in scheduled areas arises out of the powers inherent in sub-para (1) of Para 5 of the Fifth Schedule.
    • Governor may direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled Area or any part thereof in the State or shall apply to a Scheduled Area.

    (3) Modification of laws:

    • The regulation-making powers of the Area is bound neither by the advice of the Tribes Advisory Council or the assent of the President.
    • The provision lays down the responsibility on the Governor to ensure that laws that are contrary to the interests of Scheduled Areas may be suitably modified.

    Why was PESA enacted?

    • Filling the constitutional vacuum: These Areas were not covered by the 73rd Constitutional Amendment or Panchayati Raj Act of the Indian Constitution as provided in Part IX of the Constitution.
    • Self-governance: PESA sought to enable the Panchayats at appropriate levels and Gram Sabhas to implement a system of self-governance.
    • Customary regulation: It includes a number of issues such as customary resources, minor forest produce, minor minerals, minor water bodies, selection of beneficiaries, sanction of projects, and control over local institutions.

    Significance of PESA

    • Tribal autonomy: PESA was seen as a panacea for many of these vulnerabilities where the tribal communities in such Scheduled Areas were to decide by themselves the pace and priorities of their development.
    • Tribal way of development: PESA was viewed as a positive development for tribal communities in Scheduled Areas that had earlier suffered tremendously from engagement with modern development processes.
    • Sustainable access to forests: The loss of access to forest, land, and other community resources had increased their vulnerability.
    • Easing of tribal distress: Rampant land acquisition and displacement due to development projects had led to large-scale distress in tribal communities living in Scheduled Areas.

    Issues with PESA

    • Dilution of the role of Tribal Advisory Councils: PESA mandates Tribal Advisory Councils to oversee tribal affairs and also gives extrajudicial, extra-constitutional powers to the Governors.
    • Politicization: The councils, with the CM as their chairperson, have evolved into a non-assertive institution amid the machinations of upper-class politics.
    • Non-involvement: The Governors, in order to have friendly relations with the Chief Ministers, have desisted from getting involved in tribal matters.
    • Lack of coordination at Centre: Two different ministries, the Ministry of Panchayati Raj and the Ministry of Tribal Affairs, have an overlapping influence and they function almost without any coordination.
    • Lack of operationalization: In most of the state the enabling rules are not in place more than eight years after the adoption of the Act suggests the reluctance to operationalize the PESA mandate.
    • Ignoring the spirit of PESA: The state legislations have omitted some of the fundamental principles without which the spirit of PESA can never be realised.
    • Ambiguous definitions: No legal definition of the terms like minor water bodies, minor minerals etc. exist in the statute books.

    Related question in CS Mains:

    Q. What are the two major legal initiatives by the State since Independence addressing discrimination against Scheduled Tribes (STs)? (2017, 150W)

    —

    Also try answering this PYQ:

    In the areas covered under the Panchayat (Extension to the Scheduled Areas) Act, 1996, what is the role/power of Gram Sabha?

    1. Gram Sabha has the power to prevent alienation of land in the Scheduled Areas.
    2. Gram Sabha has the ownership of minor forest produce.
    3. Recommendation of Gram Sabha is required for granting prospecting license or mining lease for any mineral in the Scheduled Areas.

    Which of the statements given above is/are correct?

    (a) Only 1

    (b) 1 and 2 only

    (c) 2 and 3 only

    (d) 1, 2 and 3

     

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  • HC presses Centre on Uniform Civil Code

    Stating that the Uniform Civil Code “is a necessity and mandatorily required today,” the Allahabad High Court has called upon the Central Government to forthwith initiate the process for its implementation.

    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 endeavour 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.

    Issues with UCC

    • 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.

    Greater role for State

    • Fundamental rights are enforceable in a court of law.
    • While Article 44 uses the words “state shall endeavour”, other Articles in the ‘Directive Principles’ chapter use words such as “in particular strive”; “shall in particular direct its policy”; “shall be obligation of the state” etc.
    • Article 43 mentions “state shall endeavour 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 bed-rock 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.

    Does India not already have a uniform code in civil matters?

    • Indian laws do follow a uniform code in most civil matters – Indian Contract Act, Civil Procedure Code, Sale of Goods Act, Transfer of Property Act, Partnership Act, Evidence Act etc.
    • States, however, have made hundreds of amendments and therefore in certain matters, there is diversity even under these secular civil laws.
    • Recently, several states refused to be governed by the uniform Motor Vehicles Act, 2019.

    What about personal laws?

    • If the framers of the Constitution had intended to have a Uniform Civil Code, 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.
    • Last year, the Law Commission concluded that a Uniform Civil Code is neither feasible nor desirable.

    Is there one common personal law for any religious community governing all its members?

    • All Hindus of the country are not governed by one law, nor are all Muslims or all Christians.
    • Not only British legal traditions, even those of the Portuguese and the French remain operative in some parts.
    • In Jammu and Kashmir until August 5, 2019, local Hindu law statutes differed from central enactments.
    • The Shariat Act of 1937 was extended to J&K a few years ago but has now been repealed.

    Various customary laws

    • 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. It was compulsory in J&K (1981 Act), and is optional in Bengal, Bihar (both under 1876 Act), Assam (1935 Act) and Odisha (1949 Act).
    • 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.

    How does the idea of a Uniform Civil Code relate to the fundamental right to 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 fundamental rights
    • 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 than freedom of religion.

    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 organisations, including Hindu organisations.
    • 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 favour 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.

    How did the debate on a common code for Hindus play out?

    • In June 1948, Rajendra Prasad, President of the Constituent Assembly, warned Nehru that to introduce “basic changes” in personal law was to impose “progressive ideas” of a “microscopic minority” on the Hindu community as a whole.
    • Others opposed to reforms in Hindu law included Sardar Patel, Pattabhi Sitaramayya, M A Ayyangar, M M Malaviya and Kailash Nath Katju.
    • When the debate on the Hindu Code Bill took place in December 1949, 23 of 28 speakers opposed it.
    • On September 15, 1951, President Prasad threatened to use his powers of returning the Bill to Parliament or vetoing it. Ambedkar eventually had to resign.
    • Nehru agreed to the trifurcation of the Code into separate Acts and diluted several provisions.

     

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  • Speaker’s powers on Anti-Defection Cases

    The All-India Presiding Officers’ Conference (AIPOC) ended with the delegates failing to reach a consensus on whether the Speaker’s powers under the anti-defection law should be limited.

    What is Anti-defection Law?

    • The Anti-Defection Law under the Tenth Schedule of the Constitution punishes MPs/ MLAs for defecting from their party by taking away their membership of the legislature.
    • It gives the Speaker of the legislature the power to decide the outcome of defection proceedings.
    • It was added to the Constitution through the Fifty-Second (Amendment) Act, 1985 when Rajiv Gandhi was PM.
    • The law applies to both Parliament and state assemblies.

    Cases considered under the anti-defection law

    The law covers three scenarios with respect to shifting of political parties by an MP or an MLA.

    (1) Voluntary give-up

    • The first is when a member elected on the ticket of a political party “voluntarily gives up” membership of such a party or votes in the House against the wishes of the party.
    • Such persons lose his seat.

    (2) Independent members

    • When a legislator who has won his or her seat as an independent candidate joins a political party after the election.
    • In both these instances, the legislator loses the seat in the legislature on changing (or joining) a party.

    (3) Nominated MPs

    • In their case, the law gives them six months to join a political party, after being nominated.
    • If they join a party after such time, they stand to lose their seat in the House.

    Powers to disqualification

    • Under the anti-defection law, the power to decide the disqualification of an MP or MLA rests with the presiding officer of the legislature.
    • The law does not specify a time frame in which such a decision has to be made.
    • As a result, Speakers of legislatures have sometimes acted very quickly or have delayed the decision for years — and have been accused of political bias in both situations.

    Significant role of the Speaker/Presiding Officer

    • Pandit Nehru had referred to the Speaker as “the symbol of the nation’s freedom and liberty” and emphasized that Speakers should be men of “outstanding ability and impartiality”.
    • Several judgments on the anti-defection law have been rendered by the Supreme Court.
    • A common factor that shows up in these rulings is the blatant, partisan conduct of speakers in state assemblies.

    Reasons for Speakers’ bias

    • The Speaker continues to belong to a particular political party.
    • The electoral system and conventions in India have ‘not been developed to ensure protection to the office, there are cogent reasons for Speakers to retain party membership.
    • It would be unrealistic to expect a speaker to completely abjure all party considerations while functioning.
    • There are structural issues regarding the manner of appointment of the Speaker and her tenure in office.

    Way forward

    • Parliament may seriously consider a Constitutional amendment to bring in a permanent Tribunal for dealing with defection cases.
    • It is suggested that a scheme should be brought wherein Speakers should renounce all political affiliations, membership, and activity once they have been elected.
    • We can learn from the UK model. In practice, once elected, the Speaker gives up all-partisan affiliation, as in other Parliaments of British tradition.
    • He/she remains in office until retirement, even though the majority may change and does not express any political views during debates.

    Conclusion

    • Impartiality, fairness, and autonomy in decision-making are the hallmarks of a robust institution.
    • It is the freedom from interference and pressures which provide the necessary atmosphere where one can work with an absolute commitment to the cause of neutrality as a constitutional value.

     

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  • What is Privilege Motion?

    A chief whip of the largest party in opposition in the Rajya Sabha has moved a privilege motion against Culture Minister over the appointment of the chairperson of the National Monuments Authority.

    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 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 offences 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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  • Mumbai-Karnataka Region renamed as Kittur Karnataka

    Karnataka has renamed the Mumbai-Karnataka region, consisting of seven districts, as Kittur Karnataka.

    What is the Mumbai-Karnataka Region?

    • The erstwhile Mumbai-Karnataka region consisted of Uttara Kannada, Belagavi, Dharwad, Vijayapura, Bagalkote, Gadag and Haveri districts.

    Reasons behind renaming

    • The Karnataka government has meant to dissociate itself from any ties with the erstwhile Presidency or colonial-era nomenclature in regions that came under the newly formed state of Karnataka in 1956.
    • The renaming is also to detach itself from any ties with Maharashtra.

    Claims made by Maharashtra

    • Maharashtra has staked claim to an area of over 7,000 sq. km along its border with Karnataka.
    • It comprised 814 villages in the districts of Belagavi, Uttara Kannada, Bidar and Gulbarga, and the towns of Belagavi, Karwar and Nippani.
    • Maharashtra wants to annex all these areas.
    • The erstwhile Bombay Presidency, a multilingual province, included present-day Karnataka districts of Vijayapura, Belagavi, Dharwad and Uttara Kannada.
    • The States Reorganisation Act of 1956 made Belagavi and 10 talukas of Bombay State a part of the then Mysore State (which was renamed Karnataka in 1973).

    A case pending in the Supreme Court

    • Successive governments in Maharashtra have demanded their inclusion within the state– a claim that Karnataka contests.
    • In 2004, the Maharashtra government moved the Supreme Court for a settlement of the border dispute under Article 131(b) of the Constitution.
    • It demanded 814 villages from Karnataka on the basis of the theory of village being the unit of calculation, contiguity and enumerating linguistic population in each village.
    • The case is pending in the apex court.

     

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  • A new jurisprudence for political prisoners

    Context

    In Thwaha Fasal vs Union of India, the Court has acted in its introspective jurisdiction and deconstructed the provisions of the Unlawful Activities (Prevention) Act (UAPA) with a great sense of legal realism. This paves the way for a formidable judicial authority against blatant misuse of this law.

    Background of the case

    • In this case from Kerala, there are three accused.
    • The police registered the case and later the investigation was handed over to the National Investigation Agency (NIA).
    • During the investigation, some materials containing radical literature were found, which included a book on caste issues in India and a translation of the dissent notes written by Rosa Luxemburg to Lenin.
    • Thus, the provisions of the UAPA were invoked.
    • After initial rejection of the pleas, the trial judge granted bail to both the accused in September 2020.
    • The Supreme Court was emphatic and liberal when it said that mere association with a terrorist organisation is not sufficient to attract the offences alleged.
    • Unless and until the association and the support were “with intention of furthering the activities of a terrorist organisation”, offence under Section 38 or Section 39 is not made out, said the Court.

    Issues with UAPA

    • Section 43D(5) of the UAPA says that for many of the offences under the Act, bail should not be granted, if “on perusal of the case diary or the report (of the investigation), there are reasonable grounds for believing that the accusation is prima facie true”.
    • Thus, the Act prompts the Court to consider the version of the prosecution alone while deciding the question of bail.
    • Unlike the Criminal Procedure Code, the UAPA, by virtue of the proviso to Section 43D(2), permits keeping a person in prison for up to 180 days, without even filing a charge sheet.
    • Prevents examination of the facts: The statute prevents a comprehensive examination of the facts of the case on the one hand, and prolongs the trial indefinitely by keeping the accused in prison on the other.
    • Instead of presumption of innocence, the UAPA holds presumption of guilt of the accused.
    • In Zahoor Ahmad Shah Watali, the Court said that by virtue of Section 43D(5) of UAPA, the burden is on the accused to show that the prosecution case is not prima facie true.
    • The proposition in Zahoor Ahmad Shah Watali is that the bail court should not even investigate deeply into the materials and evidence and should consider the bail plea, primarily based on the nature of allegations, for, according to the Court, Section 43D(5) prohibits a thorough and deeper examination.
    • The top court has now altered this terrible legal landscape.

    Key takeaways from the judgement

    • The text of the laws sometimes poses immense challenge to the courts by limiting the space for judicial discretion and adjudication.
    • The courts usually adopt two mutually contradictory methods in dealing with such tough provisions.
    • One is to read and apply the provision literally and mechanically which has the effect of curtailing the individual freedom as intended by the makers of the law.
    • In contrast to this approach, there could be a constitutional reading of the statute, which perceives the issues in a human rights angle and tries to mitigate the rigour of the content of the law.

    Conclusion

    The judgment should be invoked to release other political prisoners in the country who have been denied bail either due to the harshness of the law or due to the follies in understanding the law or both.

  • All India Judicial Service (AIJS): The centralised recruitment debate

    The central government is preparing to give a fresh push to the establishment of an All India Judicial Service (AIJS) on the lines of the central civil services.

    All India Judicial Service (AIJS)

    • The AIJS is a reform push to centralize the recruitment of judges.
    • It would work at the level of additional district judges and district judges for all states.
    • In the same way that the UPSC conducts a central recruitment process and assigns successful candidates to cadres, judges of the lower judiciary are proposed to be recruited centrally and assigned to states.
    • This idea has been debated in legal circles for decades, and remains contentious.

    How are district judges currently recruited?

    • Articles 233 and 234 of the Constitution of India deal with the appointment of district judges, and place it in the domain of the states.
    • The selection process is conducted by the State Public Service Commissions and the concerned High Court since High Courts exercise jurisdiction over the subordinate judiciary in the state.
    • Panels of High Court judges interview candidates after the exam and select them for an appointment.
    • All judges of the lower judiciary up to the level of district judge are selected through the Provincial Civil Services (Judicial) exam.

    Why has the AIJS been proposed?

    The idea was to ensure:

    • Efficient subordinate judiciary
    • Address structural issues such as varying pay and remuneration across states
    • Fill vacancies faster
    • Ensure standard training across states

    Beginning of the debate

    • The idea of a centralized judicial service was first proposed in the Law Commission 1958 ‘Report on Reforms on Judicial Administration’.
    • It was proposed again in the Law Commission Report of 1978, which discussed delays and arrears of cases in the lower courts.
    • In 2006, the Parliamentary Standing Committee backed the idea of a pan-Indian judicial service, and also prepared a draft Bill.

    What is the judiciary’s view on the AIJS?

    • 1992: the Supreme Court directed the Centre to set up an AIJS in All India Judges’ Assn. vs Union of India
    • 1993: In review of the judgment, the court left the Centre at liberty to take the initiative on the issue.
    • 2017: The Supreme Court took suo motu cognizance of the issue of appointment of district judges, and mooted a “Central Selection Mechanism”.

    What is the opposition to the AIJS?

    • Blow to federalism: AJIS is seen as an affront to federalism and an encroachment on the powers of states granted by the Constitution.
    • Language of Business: Language and representation, for example, are key concerns highlighted by states. Judicial business is conducted in regional languages, whi ch could be affected by central recruitment.
    • Quotas: Also, reservations based on caste, and even for rural candidates or linguistic minorities in the state, could be diluted in a central test, it has been argued.
    • Separation of power: The opposition is also based on the constitutional concept of the separation of powers.
    • Not a complete remedy: Additionally, legal experts have argued that the creation of AIJS will not address the structural issues plaguing the lower judiciary.

    Why is the government seeking to revive the idea of AIJS?

    • The government has targeted the reform of the lower judiciary in its effort to improve India’s Ease of Doing Business ranking.
    • It will act as efficient dispute resolution is one of the key indices in determining the rank.
    • AIJS is a step in the direction of ensuring an efficient lower judiciary.

    Centre’s argument for AJIS

    • The government has cited IAS officers’ examples.
    • It has argued that if a central mechanism can work for administrative services — IAS officers learn the language required for their cadre — it can work for judicial services too.

     

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  • In news: National Commission for Scheduled Castes (NCSC)

    The National Commission for Scheduled Castes (NCSC) will examine the complaint of a decorated Narcotics Control Bureau (NCB) officer against caste-based allegations by a Maharashtra minister.

    About National Commission for Scheduled Castes

    • NCSC is a constitutional body under Article 338 of the Indian Constitution.
    • It functions under the jurisdiction of Ministry of Social Justice and Empowerment.
    • It was established with a view to provide safeguards against the exploitation of Scheduled Castes.
    • It aims to promote and protect their social, educational, economic and cultural interests, special provisions were made in the Constitution.

    How were they established?

    • The original constitution provided for the appointment of a Special Officer under Article 338.
    • The special officer was designated as the Commissioner for Scheduled Castes and Scheduled Tribes.
    • The 65th Constitutional Amendment Act 1990, amended Article 338 of the Constitution to introduce a joint NC for SCs and STs.
    • Later by 89th Amendment, NC for Scheduled Castes (NCSC) and NC for Scheduled Tribes (NCST) were separated by creating a new Article 338-A.

    Functions

    • To investigate and monitor all matters relating to the safeguards provided for the SCs
    • To inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes
    • To participate and advise on the planning process of socio-economic development of the SCs
    • To evaluate the progress of their development under the Union and any State
    • To present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards
    • To make in such reports recommendations as to the measures that should be taken by the Union or any State
    • To discharge such other functions as the President may, subject to the provisions of any law made by Parliament, by rule specify

    Note: National Commission for Backward Castes is also a constitutional body too. According to article 340, President shall establish a commission to examine the condition of social and backward class.

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  • The Supreme Court is walking the talk on citizens’ rights

    Context

    When the bench of the Chief Justice of India passed an order appointing a committee in the Pegasus matter, it served the interest of every Indian.

    What led to the appointment of committee by the Supreme Court

    • Pegasus has allegedly been used against politicians and individuals across the globe, including against politicians, journalists and other private individuals in India.
    • The issue rocked Parliament, but the government was not willing to share any information pertaining to the software or its use, citing national security as a reason.
    • The alleged victims of the software turned to the Supreme Court, and prayed for setting up of an independent enquiry.
    • The government, on being called upon by the Supreme Court, cited national security, contending that any information it let out would become a matter of public debate, which could be used by terror groups to hamper national security.
    • Its unrelenting stand left the court with no option but to take a call on whether to blindly accept the government’s refusal to share no information whatsoever, or lean in favour of a citizen’s right to privacy, a fundamental right guaranteed under the Constitution.
    • The Supreme Court chose the latter course.

    Balancing the fundamental rights  nad judicial review with national security

    • The Supreme Court has observed that “the state cannot get a free pass every time the spectre of national security is raised”.
    • It goes on to say that national security “cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning. Although this court should be circumspect in encroaching upon the domain of national security, no omnibus prohibition can be called for against judicial review”.

    Conclusion

    The Pegasus order upholding the individual’s right to a life of dignity and privacy, is music to the ears of those who believe in constitutional values and rule of law.
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  • The Court’s order on Pegasus still falls short

    Context

    The Supreme Court of India appointed an independent committee to inquire into charges that the Union government had used the mobile phone spyware Pegasus to invade, access, and snoop into devices used by India’s citizens.

    Background

    • The petitioners before the Supreme Court relied on an investigation conducted by a consortium of global media.
    • These reports revealed that hundreds of phone numbers from India had appeared on a global list of more than 50,000 numbers that were selected for surveillance by clients of the Israeli firm, the NSO Group.
    • The NSO has since confirmed that its spyware is sold only to governments, chiefly for the purposes of fighting terrorism.

    Government’s defence

    • In response to the allegations made against it, the Government invoked national security.
    • What is more, according to it, the very adoption of this argument virtually forbade the Court from probing further.
    • In matters purportedly involving national security, the Court has shown an extraordinary level of deference to the executive.
    • The cases also posed another hurdle: a contest over facts.
    • The petitioners were asserting the occurrence of illegal surveillance.
    • The Government was offering no explicit response to their claims.
    • Now, to some degree, in its order appointing a committee, the Court has bucked the trend of absolute deference.
    • The Court has held that there is no magic formula to the Government’s incantation of national security, that its power of judicial review is not denuded merely because the state asserts that the country’s safety is at stake.

    Accountability on part of the government

    • The order recognises, correctly, that spying on an individual, whether by the state or by an outside agency, amounts to an infraction of privacy.
    • This is not to suggest that all surveillance is illegal.
    • In holding thus, the Court has effectively recognised that an act of surveillance must be tested on four grounds:
    • First, the action must be supported by legislation.
    • Second, the state must show the Court that the restriction made is aimed at a legitimate governmental end.
    • Third, the state must demonstrate that there are no less intrusive means available to it to achieve the same objective;
    • Finally, the state must establish that there is a rational nexus between the limitation imposed and the aims underlying the measure.
    • The test provides a clear path to holding the Government accountable.

    Way forward

    • The absence of a categorical denial from the Government, the order holds, ought to lead to a prima facie belief, if nothing else, that there is truth in the petitioners’ claims.
    •  Having held thus, one might have expected the Court to frame a set of specific questions demanding answers from the state.
    • If answers to these questions were still not forthcoming, elementary principles of evidence law allow the Court to draw what is known as an “adverse inference”. 
    • A party that fails to answer questions put to it will only risk the Court drawing a conclusion of fact against it.
    • If, on this basis, the petitioners’ case is taken as true, there can be little doubt that there has been an illegitimate violation of a fundamental right.
    • It is, therefore, unclear why we need a committee at all.
    • Ultimately, in the future, the Court must think more carefully about questions of proof and rules of evidence.

    Conclusion

    Ad hoc committees — sterling as their members might be — cannot be the solution. Far too many cases are consigned to the back burner on the appointment of external panels, and, in the process, civil liberties are compromised.

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