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Subject: Polity

  • 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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  • What is Collegium System?

    The Supreme Court Collegium headed by Chief Justice N.V. Ramana has recommended to the Centre the names of six judicial officers for appointment as judges of the Delhi High Court.

    What is Collegium System?

    • The Collegium of judges is the Indian Supreme Court’s invention.
    • It does not figure in the Constitution, which says judges of the Supreme Court and High Courts are appointed by the President and speaks of a process of consultation.
    • In effect, it is a system under which judges are appointed by an institution comprising judges.
    • After some judges were superseded in the appointment of the CJI in the 1970s, and attempts made subsequently to effect a mass transfer of High Court judges across the country.
    • Hence there was a perception that the independence of the judiciary was under threat. This resulted in a series of cases over the years.

    Evolution: The Judges Cases

    • First Judges Case (1981) ruled that the “consultation” with the CJI in the matter of appointments must be full and effective.
    • However, it rejected the idea that the CJI’s opinion, albeit carrying great weight, should have primacy.
    • Second Judges Case (1993) introduced the Collegium system, holding that “consultation” really meant “concurrence”.
    • It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the Supreme Court.
    • Third Judges Case (1998): On a Presidential Reference for its opinion, the Supreme Court, in the Third Judges Case (1998) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

    The procedure followed by the Collegium

    Appointment of CJI

    • The President of India appoints the CJI and the other SC judges.
    • As far as the CJI is concerned, the outgoing CJI recommends his successor.
    • In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
    • The Union Law Minister forwards the recommendation to the PM who, in turn, advises the President.

    Other SC Judges

    • For other judges of the top court, the proposal is initiated by the CJI.
    • The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
    • The consultees must record their opinions in writing and it should form part of the file.
    • The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.

    For High Courts

    • The CJs of High Courts are appointed as per the policy of having Chief Justices from outside the respective States. The Collegium takes the call on the elevation.
    • High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
    • The proposal, however, is initiated by the Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
    • The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.

    Does the Collegium recommend transfers too?

    • Yes, the Collegium also recommends the transfer of Chief Justices and other judges.
    • Article 222 of the Constitution provides for the transfer of a judge from one High Court to another.
    • When a CJ is transferred, a replacement must also be simultaneously found for the High Court concerned. There can be an acting CJ in a High Court for not more than a month.
    • In matters of transfers, the opinion of the CJI “is determinative”, and the consent of the judge concerned is not required.
    • However, the CJI should take into account the views of the CJ of the High Court concerned and the views of one or more SC judges who are in a position to do so.
    • All transfers must be made in the public interest, that is, “for the betterment of the administration of justice”.

    Loopholes in the Collegium system

    • Lack of Transparency: Opaqueness and a lack of transparency, and the scope for nepotism are cited often.
    • Judges appointing Judge: The attempt made to replace it with a ‘National Judicial Appointments Commission’ was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.
    • Criteria: Some do not believe in full disclosure of reasons for transfers, as it may make lawyers in the destination court chary of the transferred judge.

    Way ahead

    • In respect of appointments, there has been an acknowledgment that the “zone of consideration” must be expanded to avoid criticism that many appointees hail from families of retired judges.
    • The status of a proposed new memorandum of procedure, to infuse greater accountability, is also unclear.
    • Even the majority opinions admitted the need for transparency, now Collegiums’ resolutions are now posted online, but reasons are not given.

     

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  • Jammu and Kashmir Delimitation Commission likely to get another extension

    The J&K Delimitation Commission is likely to get a second extension of its term this month.

    What is Delimitation and why is it needed?

    • Delimitation is the act of redrawing boundaries of an assembly or Lok Sabha seat to represent changes in population over time.
    • This exercise is carried out by a Delimitation Commission, whose orders have the force of law and cannot be questioned before any court.
    • The objective is to redraw boundaries (based on the data of the last Census) in a way so that the population of all seats, as far as practicable, be the same throughout the State.
    • Aside from changing the limits of a constituency, the process may result in a change in the number of seats in a state.

    Delimitation in J&K

    • Assembly seats in J&K were delimited in 1963, 1973 and 1995.
    • Prior to August 5, 2019, carving out of J&K’s Assembly seats was carried out under the J&K Constitution and Jammu and Kashmir Representation of the People Act, 1957.
    • Until then, the delimitation of Lok Sabha seats in J&K was governed by the Constitution of India.
    • However, the delimitation of the state’s Assembly was governed by the J&K Constitution and J&K Representation of the People Act, 1957.
    • There was no census in the state in 1991 and hence no Delimitation Commission was set up by the state until 2001 census.

    Why is it in the news again?

    • After the abrogation of J&K’s special status in 2019, the delimitation of Lok Sabha and Assembly seats in the newly-created UT would be as per the provisions of the Indian Constitution.
    • On March 6, 2020, the government set up the Delimitation Commission, headed by retired Supreme Court judge Ranjana Prakash Desai, which was tasked with winding up delimitation in J&K in a year.
    • As per the J&K Reorganization Bill, the number of Assembly seats in J&K would increase from 107 to 114, which is expected to benefit the Jammu region.

    Factors considered during Delimitation

    • The number of districts had increased from 12 to 20 and tehsils from 52 to 207 since the last delimitation.
    • The population density ranged from 29 persons a square km in Kishtwar to 3,436 persons a square km in Srinagar.
    • The remoteness of the place, inaccessibility etc are also considered during the exercise.

    Concerns raised over Delimitation

    • Jammu vs. Kashmir: Concerns had been expressed over how the delimitation process may end up favoring the Jammu region over Kashmir in terms of the seats.
    • Under-representation of Ladakh: Arguments have been made on how Ladakh has been underrepresented, with demands for statehood/sixth schedule.
    • Non-proportionate reservations: It is argued that seats for STs should’ve been divided in both Jammu province & Kashmir province, as the ST population is almost equal.

    Do not forget to answer this PYQ in the comment box:

    Q.With reference to the Delimitation Commission, consider the following statements:

    1. The orders of the Delimitation Commission cannot be challenged in a Court of Law.
    2. When the orders of the Delimitation Commission are laid before the Lok Sabha or State Legislative Assembly, they cannot affect any modifications in the orders.

    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

     

     

    [wpdiscuz-feedback id=”alffxgur6b” question=”Please leave a feedback on this” opened=”1″]Post your answers here:[/wpdiscuz-feedback]

     

  • India Press Freedom Report, 2021

    The India Press Freedom Report, 2021was recently released by the Rights and Risks Analysis Group (RRAG).

    India Press Freedom Report, 2021: Key Highlights

    • Jammu and Kashmir, Uttar Pradesh, Madhya Pradesh and Tripura topped the list of States and Union Territories where journalists and media houses were targeted in 2021.
    • It is followed by Delhi (8), Bihar (6), Assam (5), Haryana and Maharashtra (4 each), Goa and Manipur (3 each), Karnataka, Tamil Nadu and West Bengal (2 each), and Andhra Pradesh, Chhattisgarh and Kerala (1each).
    • While J&K recorded the maximum attacks by State actors, Tripura had the most cases of attacks by non-State actors, the analysis of data showed.

    Significance of the report

    • The widespread attacks on the press freedom are an indicator of the continuing deterioration of civic space in the country.
    • It represents the status of free speech exercised in our country.

     

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  • The Supreme Court fails to decide key constitutional cases in time-bound manner

    Context

    Unless the Court strives in every possible way to assure that the Constitution, the law, applies fairly to all citizens, the Court cannot be said to have fulfilled its custodial responsibility.

    Landmark judgments

    • In the last few years, the Indian Supreme Court has delivered some judgments of far-reaching consequence.
    • It declared the right to privacy a fundamental right; decriminalized consensual sexual conduct between adults of the same sex; recognized transgender persons as the third gender; and outlawed triple talaq.
    • These decisions shore up the belief in republican values like liberty and equality reified in our Constitution.

    Important cases pending in the Supreme Court

    • Constitutionality of CAA: Many petitions were filed before the Supreme Court challenging the constitutionality of the Citizenship (Amendment) Act, 2019, that provides non-Muslim communities from Bangladesh, Pakistan, and Afghanistan a fast-track route to Indian citizenship.
    • More than two years later, the matter continues to languish in the apex court.
    • Dilution of Article 370: Innumerable petitions have been filed challenging the Presidential Order of August 5, 2019, that effectually diluted Article 370 of the Constitution.
    • To date, the court has done precious little to decide this vexed question of law.
    • Constitutionality of 103rd amendment: Petitions challenging the constitutionality of the Constitution(One Hundred and Third Amendment)Act,2019 that provides reservations in public educational institutions and government jobs for economically weaker sections are also languishing in the Supreme Court.
    • Challenges to the electoral bond scheme: The Supreme Court has failed to accord proper hearing in the last four years to the constitutional challenge to the electoral bonds scheme.

    Conclusion

    Unless the Court strives in every possible way to assure that the Constitution, the law, applies fairly to all citizens, the Court cannot be said to have fulfilled its custodial responsibility”.

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  • Electoral bond scheme

    Context

    Ever since its introduction, the electoral bond scheme has envenomed the democratic process, by destroying altogether any notion of transparency in political funding.

    Issue of anonymity in electoral bond

    • The electoral bond scheme is designed to allow an individual, or any “artificial juridical person”, including body corporates, to purchase bonds issued by the State Bank of India during notified periods of time.
    • These instruments are issued in the form of promissory notes, and in denominations ranging from ₹1,000 to ₹1 crore.
    • Once purchased, the buyer can donate the bond to any political party of their choice and the party can then encash it on demand.

    Supreme Court’s opinion

    • The Supreme Court has allowed the scheme to continue unabated and has denied an interim stay on its operation.
    • In one such provisional order, the Court asserted that the bonds were not, in fact, anonymous.
    • According to the Court, since both the purchase and the encashment of bonds are made through banking channels, all it would take for a person to glean the identity of a donor was for her to look through every corporation’s financial statement — these records, the Court said, ought to be available with the Registrar of Companies.
    • What the order ignored was that there is no attendant obligation on political parties to provide details to the public on each donation received by them through electoral bonds.
    • Companies are also under no obligation to disclose the name of the party to whom they made the donation.

    Violation of voter’s right

    •  The Supreme Court has consistently held that voters have a right to freely express themselves during an election and that they are entitled to all pieces of information that give purpose and vigour to this right.
    • Surely, to participate in the electoral process in a meaningful manner and to choose one’s votes carefully, a citizen must know the identity of those backing the candidates.

    Electoral bond does not eliminate the role of black money in funding elections

    • As affidavits filed by the Election Commission of India in the Supreme Court have demonstrated, the scheme, if anything, augments the potential role of black money in elections.
    • It does so by, among other things, removing existing barriers against shell entities and dying concerns from donating to political parties.
    • Moreover, even if the bonds were meant to eliminate the presence of unaccounted currency, it is difficult to see what nexus the decision to provide complete anonymity of the donor bears to this objective.
    • It is for this reason that the Reserve Bank of India reportedly advised the Government against the scheme’s introduction.

    Conclusion

    The worries over the electoral bond scheme, however, go beyond its patent unconstitutionality. This is because in allowing anonymity it befouls the basis of our democracy and prevents our elections from being truly free and fair.

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  • Supreme Court revokes Suspension of Maharashtra MLAs

    The Supreme Court has set aside the one-year suspension of 12 MLAs from the Maharashtra Legislative Assembly.

    What was the case?

    • A petition was filed against the suspension.
    • It stated the move as “grossly arbitrary and disproportionate”.
    • The challenge relied mainly on grounds of denial of the principles of natural justice, and of violation of laid-down procedure.

    What did the judgment observe?

    • The apex court observed the decision to suspend them for a year was ‘unconstitutional, substantively illegal and irrational’.

    What did the court say about members being suspended beyond an ongoing session?

    (A) Arbitrary Action

    • The court agreed with the MLAs’ contention that the suspension has to follow the procedure laid down in Rule 53.
    • It said that the suspension of a member must be preferred as a short term or a temporary, disciplinary measure for restoring order in the Assembly.
    • Anything in excess of that would be irrational suspension, the court said.
    • It said that Rule 53 only provides for the withdrawal of a member for the remainder of the day or in case of repeat misconduct in the same session, for the remainder of the session.

    (B) Defining ‘disorderly behaviour’

    • The court said that as per this rule, withdrawal of a member can only be done in case of the member’s conduct being “grossly disorderly”.
    • It relied on definitions of the two words and said that the conduct has to be considered in a graded objective manner.
    • It is not a punishment like expulsion but more a direction to ensure that the business of the House can be carried on smoothly, without any disruption.

    (C) Violative of Fundamental Rights

    • The MLAs were not given an opportunity to present their case and that the suspension violated their fundamental right to equality before the law under Article 14 of the Constitution.
    • They also submitted that they were not given access to video of the proceedings of the House, and it was not clear how they had been identified in the large crowd that had gathered in the chamber.

    (D) Against constitutional ethos

    • It termed the one-year suspension worse than expulsion or disqualification or resignation as far as the rights of the constituency to be represented in the House are concerned.
    • It would also impact the democratic setup.

    (E) Immunity of the state legislature

    • It also considered whether the legislature had complete immunity from judicial review in matters of irregularity of procedure.
    • It ruled that procedures are open to judicial review on the touchstone of being unconstitutional, grossly illegal, irrational or arbitrary.

    Legal basis of the Judgment

    Ans. The bench referred to Article 190 (4) of the Constitution

    • It says- if for a period of sixty days a member of a House of the Legislature of a State is without permission of the House absent from all meetings thereof, the House may declare his seat vacant.
    • Under Section 151 (A) of The Representation of the People Act, 1951, “a bye-election for filling any vacancy shall be held within a period of six months from the date of the occurrence of the vacancy”.
    • This means that barring exceptions specified under this section, no constituency can remain without a representative for more than six months.

    What was the Assembly’s response to the judicial enquiry?

    • It argued that the House had acted within its legislative competence.
    • Under Article 212, courts do not have jurisdiction to inquire into the proceedings of the legislature.
    • Article 212 (1) states that “the validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure”.
    • It also said that a seat does not automatically become vacant if the member does not attend the House for 60 days but it becomes vacant only if declared so by the House.
    • It was submitted that the House is not obligated to declare such a seat vacant.

    Why was this suspension controversial?

    • manipulation: A thin majority coalition government could use such suspensions to manipulate the number of Opposition party members.
    • Avoiding legislative scrutiny: With prominent members suspended, opposition will not be able to effectively participate in discussions/debates in the House fearing suspension of its members for a longer period.
    • Enmity among legislators: The court pointed out that Parliament and Assemblies were becoming more and more an intransigent place.

    Way forward

    • A nation aspiring to be a “world leader” should debate on the welfare of its citizens rather than make Parliament/State Assemblies a stage to exchange jeers and launch personal attacks.
    • The members must maintain statesmanship and not brinkmanship in the House, said the apex court.
    • For becoming world leaders and self-dependent/reliant, quality of debates in the House ought to be of the highest order.

    Conclusion

    • Parliament or the State legislatures are no places to create a ruckus.
    • It is a place where policies and laws are propounded for governing the citizenry.
    • Aggression during the debates has no place in the setting of country governed by the Rule of Law.
    • Even a complex issue needs to be resolved in a congenial atmosphere by observing collegiality and showing full respect and deference towards each other.

     

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