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Subject: Polity

  • How poll results are challenged, and when courts have set them aside

    West Bengal CM has filed an election petition in the Calcutta High Court challenging the Assembly election result of Nandigram constituency, where she had contested and lost.

    What is an election petition?

    • The Election Commission’s role ends with the declaration of results, that is once the Returning Officer has signed the final result sheet (Form 20).
    • After that, an election petition is the only legal remedy available to a voter or a candidate who believes there has been malpractice in an election.
    • Such a person can challenge the result through an election petition submitted to the High Court of the state in which the constituency is located.
    • Such a petition has to be filed within 45 days from the date of the poll results; nothing is entertained by courts after that.
    • Although the Representative of the People Act of 1951 suggests that the High Court should try to conclude the trial within six months, it usually drags on for much longer, even years.

    On what grounds can an election petition be filed?

    Under Section 100 of the RP Act, an election petition can be filed on the grounds that:

    • On the day of the election, the winning candidate was not qualified to contest.
    • The winning candidate, his poll agent or any other person with the consent of the winning candidate has indulged in a corrupt practice. Section 123 of the RP Act has a detailed list of what amounts to corrupt practice, including bribery, use of force or coercion, appeal to vote or refrain from voting on grounds of religion, race, community, and language.
    • Improper acceptance of the nomination of the winning candidate or improper rejection of a nomination.
    • Malpractice in the counting process, which includes improper reception, refusal or rejection of any vote, or the reception of any vote which is void.
    • Non-compliance with the provisions of the Constitution or the RP Act or any rules or orders made under the RP Act.

    What happens if the court finds that a contention of malpractice is correct?

    • This depends on relief that is claimed by the petitioner in her election petition.
    • Under Section 84 of the RP Act, the petitioner may ask that the results of all or the winning candidates may be declared void.
    • In addition to that, the petitioner may also ask the court to declare her (in case the petition is filed by a candidate) or any other candidate as the winner or duly elected.
    • So the verdict on an election petition, if found in favour of the petitioner, may result in a fresh election or the court announcing a new winner.

    Have there been any election results that were declared void because of an election petition?

    • There are many examples, the most famous being the Allahabad High Court verdict of 1975 which set aside Indira Gandhi’s election from Rae Bareli constituency, four years earlier, on grounds of corrupt practice.
    • The election petition was filed by her nearest rival Raj Narain who had lost by over one lakh votes.
    • The High Court found that Indira Gandhi’s election agent Yashpal Kapur, the DM of Rae Bareli, the Superintendent of Police of Rae Bareli and the Home Secretary of UP government helped in the arrangements for her election tour.
    • This amounted to a corrupt practice under Section 123 (7) of the RP Act.

  • ECI releases an Atlas on General Elections 2019

    The Election Commission of India has released ‘General Elections 2019 – An Atlas’.

    Atlas on General Elections

    • The Atlas encompasses all the data and statistical figures of this monumental event. It shares interesting facts, anecdotes and legal provisions related to the Indian elections.
    • It brings out salient features such as data of the 23 States and Uts where women voting percentage was more than the male voting percentage.
    • It has information about the largest & smallest parliamentary constituency in terms of electors, candidates and performance of political parties amongst other parameters.
    • The Atlas depicts the elector’s data in different categories and through various comparison charts like Elector Gender Ratio and electors in different age categories.
    • This Atlas serves as an informative and illustrative document that brings to light the nuances of the Indian electoral process and empowers readers to analyze trends and changes.

    Data on 2019 Elections

    • The 2019 General Elections witnessed the lowest gender gap in the history of Indian elections.
    • The Elector Gender Ratio which has shown a positive trend since 1971 was 926 in the 2019 General Elections.
    • The Atlas also compares the average number of electors per polling station in different states during the 2014 & 2019 General Elections.
    • The Election Commission of India set up over 10 lakh polling stations in General Elections 2019 with the lowest number of electors per polling station (365) in Arunachal Pradesh.

    Why was such Atlas needed?

    • Since the first General Elections in 1951-52, the Commission has been publishing a compilation of electoral data in the form of narrative and statistical books.
    • 17th General Elections conducted in 2019 were the largest democratic exercise in human history which witnessed the participation of 61.468 crore voters at 10.378 lakh polling stations spread over 32 lakh sq km.

  • Balancing right to be forgotten with fair criticism and accountability

    The article discusses the interplay between right to be forgotten and the right of the public to access courts of record, concepts of fair criticism and accountability.

    Context

    The Delhi High Court recently ordered the removal of one of its own judgments from easy access. The High Court recognised that the petitioner may have a right to be forgotten, which must be balanced with the right of the public to access courts of record.

    Right to be forgotten

    • In 2017, the Supreme Court recognised the right to be forgotten as being under the ambit of the right to privacy (specifically, informational privacy) under the Constitution.
    • The Supreme Court observed that a lot of personal information may serve no “legitimate interest”, was “incorrect”, or was not “necessary” or “relevant”.
    • For now, individuals may request data hosts to take down some content, and it may be taken down based on the policies of the respective hosts.
    • There is a general consensus that people should be allowed to modify or delete information uploaded by themselves.
    • However, whether this extends to information uploaded by third parties is uncertain.
    • The right to be forgotten is, generally, the right to have information about a person removed from public access.

    Balancing between right of the public

    • The Delhi High Court recognised that the petitioner may have a right to be forgotten, which must be balanced with the right of the public to access courts of record.
    • Judgments are published for good reasons.
    • Trials held under public scrutiny act as a check against judicial caprices and help in enhancing the confidence of the public in the fairness and objectivity of the administration of justice.
    • The Supreme Court has made is clear that the right to be forgotten was subject to reasonable restrictions based on countervailing rights such as free speech.

    Consider the question “What is right to be forgotten and how it is related to the right to privacy? Examine the issues related to the implementation of the right to be forgotten.”

    Way forward

    • The High Court could have ordered that the name and personal details of the petitioner be redacted while maintaining public access to the judgment itself.

    Conclusion

    The right to be forgotten needs to be studied along with the concepts of fair criticism and accountability.

  • Annual Review of State Laws Report, 2020

    The COVID-19 pandemic and the consequent lockdown had a huge impact on the working of the state legislatures in India.  The PRS Legislative Research’s “Annual review of state laws 2020” shows that the productivity and efficacy of State legislatures are poor.

    Annual Review of State Laws

    • This report focuses on the legislative work performed by states in the calendar year 2020.
    • It is based on data compiled from state legislature websites and state gazettes.
    • It covers 19 state legislatures, including the union territory of Delhi, which together accounts for 90% of the population of the country.

    Highlights of the report

    (1) Sittings of states

    • Compared with its average number of sitting days of 32 from 2016 to 2019, the Karnataka legislature, which is bicameral, met on 31 days last year, the highest for any State in 2020.
    • The southern State was followed by Rajasthan (29 days) and Himachal Pradesh (25 days). For comparison, Parliament met for 33 days last year.
    • In 2020, the average number of sitting days for the 19 States was 18, which was 11 less than the four-year (2016-19) average of 29.
    • Kerala, which had the distinction of remaining at the top in the four years with an average of 53 days, had only 20 days of sittings of the legislature last year.

    (2) Number of bills

    • As for the number of Bills passed last year, Karnataka again topped the list with 61 Bills, followed by Tamil Nadu (42) and Uttar Pradesh (37). For this purpose, Appropriation Bills were excluded.
    • Among poor performers under this category, Delhi passed only one Bill; West Bengal passed two Bills and Kerala three Bills.

    (3) Time taken for passing bills

    • On the duration of time taken to pass Bills, the previous year saw 59% of the Bills being passed by the legislature of the States on the day of introduction.
    • A further 14% was adopted within a day of being introduced.
    • Only 9% of the Bills were passed more than five days after introduction, some of which were referred to committees for further examination.

  • Electoral bonds

    The article highlights the issues with the political funding through electoral bonds.

    Changes made for the electoral bond and issues with them

    • Earlier, only profit-making domestic companies could contribute to political parties; now loss-making companies can too.
    • Earlier, foreign companies or companies where the controlling stake was held by a foreign company couldn’t contribute; now they can. 
    • India’s political parties could theoretically be fully funded by a foreign company operating in India or by a foreign entity through a shell company.
    • Only the ruling party via the State Bank of India (SBI) has a full account of all donations being made via electoral bonds, to itself and to Opposition parties.

    Issues in the Supreme Court verdict

    • In March 2021, the Supreme Court refused to stay the sale of electoral bonds before the West Bengal elections.
    • Instead, the judgment listed several documents which supposedly establish a paper trail on donations and do some ‘match the following’.
    • This is impractical and plainly incorrect.
    • The Right to Information (RTI) Act of 2005 enables easier access to information held by public authorities.
    • Suggesting a “match the following” is incorrect for three reasons.

    1) Full scale of registered entities in unknown

    • If we set aside individual donors and focus just on registered entities, we will find that the full scale of registered entities is unknown. 
    • According to back-of-the-envelope calculations, there are close to 25 lakh potential donors comprising just companies and firms.
    • This includes about 12.6 lakh active private limited companies as of January 31, 2021.
    • Firms, unlike companies, have no regulatory mandate to submit their annual reports except for filing their annual tax returns, since their functioning is regulated by Acts other than the Companies Act of 2013.

    2) No disclosure by companies about donation to political parties

    • Even if registered companies filed annual financial statements, many do not disclose political donations.
    • Conveniently, the Finance Bill of 2017 amended Section 182 of the Companies Act of 2013 to remove the requirement for declaring disaggregated donations to political parties.
    • Even if registered companies filed annual financial statements, many do not disclose political donations.

    3) Political parties do not need to disclose their donor

    • Crucially, political parties do not need to disclose their electoral bond donors either.
    • Strictly speaking, political parties are not even supposed to know their electoral bond donors.
    • The only requirement is the annual audit reports with a total of all donations received via electoral bonds.
    • These reports are submitted with great delays.
    • Even if these reports are submitted on time, there is no way to match a donation of a company to that received by a political party as only aggregate amounts are available.

    Implications

    • Electoral bonds give political power to companies, wealthy individual donors, and foreign entities, thus diluting the universal franchise of one voter-one vote.
    •  Every vote is not equally valuable if companies can influence policies through hidden donations.
    •  The winner of this arrangement is the ruling party, whether at the Centre or in a State, and the loser is the average voter.

    Way forward

    • Companies and political parties could exercise moral leadership and voluntarily disclose the identity of recipients and donors, as the Jharkhand Mukti Morcha recently did.

    Conclusion

    Opacity in political funding goes against the basic tenets of democracy. What we need is a system of political funding which is transparent and fair.

  • Explained: SC move to quash OBC quota in Maharashtra Local Bodies

    The Supreme Court last month quashed Maharashtra’s review petition challenging its earlier verdict that scrapped a quota for OBCs in the state’s local bodies, triggering a war of words between the ruling and opposition parties.

    What is the OBC reservation in local bodies?

    • The Maharashtra government set up a 27 percent quota in local bodies for OBCs in 1994.
    • The 27 percent reservation was applicable to all urban (Municipal Corporations, Councils and Nagar Panchayat) and rural bodies (Zilla Parishad, Panchayat Samiti and Gram Panchayat) across the state.
    • In Maharashtra, the OBCs include the Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category.
    • This quota for OBCs increased their representation in rural and urban local bodies.

    What is the history of the demand for an OBC census in Maharashtra?

    • As per the Mandal Commission report, the last caste-wise census was conducted in 1931 and it was later discontinued.
    • Based on the data from the 1931 census, the Mandal commission worked out the OBC population to be 52 per cent and recommended a 27 per cent reservation for OBCs in view of the SC judgment limiting reservation up to 50 per cent.
    • There was already a 22.5 per cent reservation for SC and ST categories.
    • The Mandal Commission report recommended 27 per cent reservation in government jobs and promotions along with others.
    • The report gave momentum to OBC leaders and the community’s demand for a caste-wise census of OBC.

    Need for a caste-wise census

    • The 2011 census included data about the socio-economic caste census but has not released the data citing the errors in it.
    • In 2018, ahead of the Lok Sabha polls the following year, the Centre announced that OBC enumeration will be done in the 2021 census.
    • But this promise could not be tested with the onset of the pandemic and the indefinite delay in population enumeration.
    • OBC leaders fear the OBC enumeration may never actually happen.

    How did the matter reach the SC?

    • The quota was exceeding the 50 per cent limit which is contrary to SC 2010 judgment of K Krishna Murthy (Dr.) and Ors. vs. Union of India and others.
    • The court granted the status quo and the elections were delayed.
    • On March 4 this year, The SC read it down in stating that it may be invoked only upon complying with the triple conditions before notifying the seats reserved for OBC category in the concerned local bodies.
    • The triple conditions included setting up “a dedicated Commission to conduct a contemporaneous rigorous empirical inquiry into the nature and implications of the backwardness qua local bodies, within the State”.
    • This was to specify the proportion of reservations required to be provisioned local body-wise in light of recommendations of the commission.
    • It also stated that such reservation, in any case, shall not exceed the aggregate of 50 per cent of the total seats reserved in favour of SCs, STs and OBCs taken together.
    • The apex court observed the reservation for OBCs is only “statutory”, to be provided by the state legislations, unlike the “constitutional” reservation regarding SCs/STs which is linked to the proportion of the population.

    What do OBC leaders say now?

    • There has been a mixed response from the OBC leaders to the SC verdict, with some welcoming it while others lamenting on losing reservation.
    • Some say it will pave the way for conducting the OBC census in the state.
    • So far, there was no data about the OBC population and our demand for the OBC census for the last 30 years have fallen on deaf ears.
    • With this SC order, the state has to conduct the census now.
    • Else, there will be no OBC reservation in the local bodies polls and the ruling parties will have to pay a huge price for it.

    What lies ahead?

    • The SC judgment is applicable to the elections of all local bodies — rural and urban.
    • As per a statement from the CM’s office, the SC verdict is likely to impact around 56,000 seats in all local bodies in the state.
    • This includes polls pending due to Covid and the upcoming elections.
    • So, the state election commission will consult with the state government whenever the local bodies’ polls are held and will decide on the OBC reservation as per the SC order.

  • History of Tulu and the demand for Official Language Status

    Various organizations have initiated a Twitter campaign demanding official language status to Tulu in Karnataka and Kerala and received an overwhelming response.

    Answer this PYQ in the comment box:

    Q.Consider the following languages:

    1. Gujarati
    2. Kannada
    3. Telugu

    Which of the above has/have been declared as ‘Classical Language / Languages’ by the Government?

    (a) 1 and 2 only

    (b) 3 only

    (c) 2 and 3 only

    (d) 1, 2 and 3

    Who all speak Tulu in India now and what is its history?

    • Tulu is a Dravidian language spoken mainly in two coastal districts Dakshina Kannada and Udupi of Karnataka and Kasaragod district of Kerala.
    • As per the 2011 Census report, there are 18,46,427 Tulu-speaking people in India. Some scholars suggest Tulu is among the earliest Dravidian languages with a history of 2000 years.
    • Robert Caldwell (1814-1891), in his book, A Comparative Grammar of the Dravidian or South-Indian Family of Languages, called Tulu “one of the most highly developed languages of the Dravidian family”.

    So what exactly is the demand by Tulu speakers?

    • The Tulu speakers, mainly in Karnataka and Kerala, have been requesting the governments to give it official language status and include it in the eighth schedule to the Constitution.
    • Assamese, Bengali, Gujarati, Hindi, Kannada, Kashmiri, Konkani, Malayalam, Manipuri, Marathi, Nepali, Oriya, Punjabi, Sanskrit, Sindhi, Tamil, Telugu, Urdu, Bodo, Santhali, Maithili and Dogri are the 22 languages presently in the eighth schedule.

    Tulu art, culture and cinema

    • Tulu has a rich oral literature tradition with folk-song forms like paddana, and traditional folk theatre yakshagana.
    • Tulu also has an active tradition of cinema with around 5 to 7 Tulu language movies produced a year.
    • Tulu films are being screened every day in Mangaluru and Udupi in at least one theatre.

    What is the present status of Tulu?

    • According to Karnataka Tulu Sahitya Academy president Dayananda G Kathalsar,
    • People who speak Tulu are confined to the above-mentioned regions of Karnataka and Kerala, informally known as Tulu Nadu.
    • At present, Tulu is not an official language in the country.
    • Efforts are being made to include Tulu in the eighth schedule of the Constitution.
    • If included in the eighth schedule, Tulu would get recognition from the Sahitya Akademi.

    Back2Basics: Eighth Schedule to the Indian Constitution

    • The Eighth Schedule lists the official languages of the Republic of India.
    • At the time when the Constitution was enacted, inclusion in this list meant that the language was entitled to representation on the Official Languages Commission.
    • This language would be one of the bases that would be drawn upon to enrich Hindi and English, the official languages of the Union.
    • The list has since, however, acquired further significance.
    • In addition, a candidate appearing in an examination conducted for public service is entitled to use any of these languages as the medium in which he or she answers the paper.
    • As per Articles 344(1) and 351 of the Indian Constitution, the eighth schedule includes the recognition of the 22 languages.

    ‘Classical’ languages in India

    Currently, six languages enjoy the ‘Classical’ status: Tamil (declared in 2004), Sanskrit (2005), Kannada (2008), Telugu (2008), Malayalam (2013), and Odia (2014).

    How are they classified?

    According to information provided by the Ministry of Culture in the Rajya Sabha in February 2014, the guidelines for declaring a language as ‘Classical’ are:

    • High antiquity of its early texts/recorded history over a period of 1500-2000 years;
    • A body of ancient literature/texts, which is considered a valuable heritage by generations of speakers;
    • The literary tradition be original and not borrowed from another speech community;
    • The classical language and literature being distinct from modern, there may also be a discontinuity between the classical language and its later forms or its offshoots.

  • What is Breach of Privilege motion?

    An MP has filed a breach of privilege motion against the Lakshadweep Administrator for denying him permission to visit the islands, preventing him from meeting his cadre and people of the island.

    Breach of Privilege

    • 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.
    • Parliamentary privilege refers to the right and immunity enjoyed by legislatures, in which legislators are granted protection against civil or criminal liability for actions done or statements made in the course of their legislative duties.

    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

    What constitutes a breach of this privilege?

    • While the Constitution has accorded special privileges and powers to parliamentarians and legislators to maintain the dignity and authority of the Houses, these powers and privileges are not codified.
    • Thus, there are no clear, notified rules to decide what constitutes a breach of privilege, and the punishment it attracts.
    • Any act that obstructs or impedes either House of the state legislature in performing its functions, or which obstructs or impedes any Member or Officer of such House in the discharge of his duty, or has a tendency, directly or indirectly, to produce such results is treated as a breach of privilege.
    • It is a breach of privilege and contempt to print or publish libel reflecting on the character or proceedings of the House or its Committees or on any member of the House for or relating to his character or conduct as a legislator.

    Procedure followed in cases of an alleged breach

    • The Legislative Assembly Speaker or Legislative Council Chairman constitutes a Privileges Committee consisting of 15 members in the Assembly and 11 members in the Council.
    • The members to the committee which has quasi-judicial powers are nominated based on the party strength in the Houses.
    • The Speaker or Chairman first decides on the motions.
    • If the privilege and contempt are found prima facie, then the Speaker or Chairman will forward it to the Privileges Committee by following the due procedure.
    • At present, there is no Privileges Committee in either House of the state legislature.
    • The Committee will seek an explanation from all the concerned, will conduct an inquiry and will make a recommendation based on the findings to the state legislature for its consideration.

  • Holding states to account

    The article highlights the excessive focus on the Union government and the lack of scrutiny of the functioning of the States in various areas.

    Need for focus on the States

    • In discussions on reforms or debates about public expenditure, there is an excessive focus on the Union government.
    • This focus reflects our mindset that there is a “Centre”, though constitutionally, there is no “Centre”. There is the Union government.
    • There is not as much interest in State Finance Commissions and their recommendations as it is in the Union Finance Commission’s recommendations.
    • Alternatively, there is limited scrutiny of state-level expenditure, or fiscal devolution and decentralisation of decision-making within states, or tracking functioning of state legislatures.
    • Most factor markets we seek to reform are on the concurrent list or the state list.

    The Annual Review of State Laws 2020: Key findings

    • PRS Legislative Research published this report and it focuses on the legislative work performed by states in the calendar year 2020.
    • The annual review has been done in the pandemic year as 2020 saw the first wave of the pandemic.
    • It covers 19 state legislatures, including the Union territory of Delhi, which together accounts for 90 per cent of the population of the country.

    1) Low Productivity

    • As a benchmark, the Parliament met for 33 days in 2020.
    • Pre-2020, these 19 states met for an average of 29 days a year.
    • In 2020, they met for an average of 18 days.
    • When they met in 2020, States passed an average of 22 Bills (excluding Appropriation Bills).
    • Karnataka passed 61 Bills, the highest in the country.
    • The lowest was Delhi which passed one Bill, followed by West Bengal and Kerala, which passed two and three Bills respectively.

    2) States pass Bills without scrutiny

    • The report states that the State legislatures pass most Bills without detailed scrutiny.
    • In 2020, 59 per cent of the Bills were passed on the same day that they were introduced in the legislature.
    • A further 14 per cent were passed within a day of being introduced.
    • In Parliament, Bills are often referred to Parliamentary Standing Committees for detailed examination.
    • In most states, such committees are non-existent.

    3) Information not shared by the legislature

    • Information and data on state legislatures is not easily available.
    • While some state legislatures publish data on a regular basis, many do not have a systematic way of reporting legislative proceedings and business.”
    • Typically, information becomes available when countervailing pressure is generated.
    • Reports like this help to do that.

    Consider the question “In discussions on reforms, or debates about public expenditure, there is an excessive focus on the Union government. However, on reforms and public expenditures, we also need to focus on scrutinising the states”. Comment.

     

    Conclusion

    Scrutinising States on various areas of their functioning is important to hold them accountable. The availability of data from state legislatures is an opportunity to monitor them better.

     

  • Autonomous Councils in India

    The Rengma Nagas in Assam have written to Union Home Minister demanding an autonomous district council amid a decision by the Central and the State governments to upgrade the Karbi Anglong Autonomous Council (KAAC) into a territorial council.

    Karbi Anglong Autonomous Council

    • KAAC is an autonomous district council in the state of Assam, India for the development and protection of tribals living in area namely Karbi Anglong and West Karbi Anglong district.
    • The council is constituted under the Sixth Schedule of the Constitution of India and administratively functions under the Government of Assam.

    Answer this PYQ in the comment box:

    Q.The Government enacted the Panchayat Extension to Scheduled Areas (PESA) Act in 1996. Which one of the following is not identified as its objective?

    (a) To provide self-governance

    (b) To recognize traditional rights

    (c) To create autonomous regions in tribal areas

    (d) To free tribal people from exploitation

    What are such Autonomous Council?

    • The Sixth Schedule of the Constitution of India allows for the formation of autonomous administrative divisions which have been given autonomy within their respective states.
    • Most of these autonomous district councils are located in North East India but two are in Ladakh, a region administered by India as a union territory.
    • Presently, 10 Autonomous Councils in Assam, Meghalaya, Mizoram and Tripura are formed by virtue of the Sixth Schedule with the rest being formed as a result of other legislation.

    Powers and competencies

    Under the provisions of the Sixth Schedule, autonomous district councils can make laws, rules and regulations in the following areas:

    • Land management
    • Forest management
    • Water resources
    • Agriculture and cultivation
    • Formation of village councils
    • Public health
    • Sanitation
    • Village and town level policing
    • Appointment of traditional chiefs and headmen
    • Inheritance of property
    • Marriage and divorce
    • Social customs
    • Money lending and trading
    • Mining and minerals

    Judicial powers

    • Autonomous district councils have powers to form courts to hear cases where both parties are members of Scheduled Tribes and the maximum sentence is less than 5 years in prison.

    Taxation and revenue

    • Autonomous district councils have powers to levy taxes, fees and tolls on; building and land, animals, vehicles, boats, entry of goods into the area, roads, ferries, bridges, employment and income and general taxes for the maintenance of schools and roads.