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Subject: Polity

  • POCSO doesn’t brook dilution

    The recent Bombay High Court judgement has raised controversy for its interpretation of certain Section of the POCSO Act. The article deals with this issue.

    Object of the POCSO Act

    • The Protection of Children from Sexual Offences (POCSO) Act was enacted in 2012 especially to protect children (aged less than 18) from sexual assault.
    • The Statement of Objects and Reasons of the Act admitted that a number of sexual offences against children were neither specifically provided for in extant laws nor adequately penalised.
    • The UN Convention on the Rights of the Child, ratified by India in 1992, also requires sexual exploitation and sexual abuse to be addressed as heinous crimes.

    Issues with Bombay High Court’s Judgement

    • The Bench acquitted a man under the POCSO Act found guilty of assault on the grounds that he groped his victim over her clothes and there was no skin-to-skin contact between them.
    • As this judgment was likely to set a dangerous precedent, the apex court stayed the acquittal.
    • Section 7 of the POCSO Act, along with other things, says that whoever with sexual intent touches the breast of the child is said to commit sexual assault.
    • Whereas Section 8 of the Act provides minimum imprisonment of three years for sexual assault.
    • Section 354 of the Indian Penal Code (IPC) lays down a minimum of one year imprisonment for outraging the modesty of a woman.

    Difference between IPC and POCSO

    • The difference between POCSO and IPC, as far as the offence of sexual assault is concerned, is two-fold.
    • One, the definition of ‘assault or criminal force to woman with intent to outrage her modesty’ given in the IPC is generic.
    • Whereas in POCSO, the acts of sexual assault are explicitly mentioned such as touching various private parts.
    • ‘Sexual assault’ in POCSO specifically excludes rape which requires penetration; otherwise the scope of ‘sexual assault’ under POCSO and ‘outraging modesty of a woman’ under the IPC is the same.
    • Two, whereas the IPC provides punishment for the offence irrespective of any age of the victim, POCSO is specific for the protection of children.
    • Higher punishment is provided under POCSO not because more serious allegations of sexual assault are required but because the legislature wanted punishment to be more deterrent if the victims are children.

    Conclusion

    In the absence of any specific provision in the POCSO Act which requires skin-to-skin touch as a mandatory element of an offence, any interpretation which dilutes protection to children must be declared ultra vires.

  • Need for rigorous scrutiny of constitutionality of the bills

    Farmers’  protests against the farm laws and staying of  implementation of these laws by the judiciary have once again brought into focus the process followed in the passage of laws by the parliament. This article highlights the importance of parliamentary committees.

    Need for introspection on the role of parliament

    • The Supreme Court’s order on the farm laws staying their implementation crossed the line of separation between the legislature and judiciary.
    • The order should trigger introspection in Parliament.
    • Since 2019, the constitutionality of statutes passed by it, like the abrogation of Article 370, the Citizenship Amendment Act and recently the farm laws, has been challenged before the SC.
    • The highest lawmaking body should be asking itself whether it rigorously scrutinises the constitutionality of bills.

    Three mechanisms to examine the constitutionality

    • Parliament has three mechanisms for examining whether a government bill adheres to constitutional principles.
    • First, any member of the Parliament can oppose the introduction of a bill by stating that it initiates legislation outside the legislative competence of the Parliament.
    • Second, MPs also get an opportunity to discuss a bill’s constitutionality while debating it in the Lok Sabha and Rajya Sabha.
    • But on both these occasions, the strength of the argument does not determine the legislative outcome.
    • The Parliament’s decision depends on the numbers that the treasury and opposition benches command on the house floor.
    • Third, the opportunity for probing a bill’s constitutionality arises when a parliamentary committee is examining it.

    Advantages of scrutiny of the bill by  parliamentary committee

    • The most important opportunity of the above mentioned three opportunities is scrutiny by the parliamentary committee.
    • In the past too, the parliamentary committees have subjected the bills to strict scrutiny on the issue of constitutionality.
    • For example, the committee examining the land acquisition bill 2011 was concerned about the bill infringing upon the state governments’ power.
    • Similarly, during the deliberations on the Citizenship Amendment Bill 2016, the joint committee explicitly asked the government whether the bill would violate the spirit of Articles 14 and 25 of the Constitution.
    • The committee process also has the advantage of drawing on constitutional expertise outside of the law ministry.
    • The government has also fielded the attorney general to appear before parliamentary committees.

    Weakness of parliamentary committee process

    • Our parliamentary committee process has a fatal flaw.
    • Government bills do not automatically go to committees for examination.
    • Ministers get an option to refer their bill to a select committee, they often don’t exercise this option.
    • While countries like Sweden and Finland pass their bills through two parliamentary committees.
    • One committee looks at the technical aspects of a proposed law, and a specialised committee focuses on a bill’s constitutional validity.

    Consider the question “Several laws passed by the government have been challenged before the judiciary on the ground of unconstitutionality. This highlights the importance of strict scrutiny of the bills by the Parliament. In light of this, examine the role played by the parliamentary committees in the scrutiny of the bills.” 

    Conclusion

    Lack of robust scrutiny processes weakens Parliament’s image as the highest legislative institution and encourages judicial encroachment on its powers. After all, lawmaking should not be a mechanical stamping of the government’s legislative proposals but their careful examination by the Parliament.

  • Prevention of Insults to National Honour Act

    Police have booked several under The Prevention of Insults to National Honour Act, 1971, for the alleged insult of the National Flag in farmers protest on Republic Day.

    Prevention of Insults to National Honour Act

    • The law, enacted on December 23, 1971, penalizes the desecration of or insult to Indian national symbols, such as the National Flag, the Constitution, the National Anthem, and the Indian map, as well as contempt of the Constitution of India.
    • Section 2 of the Act deals with insults to Indian National Flag and Constitution of India.

    Do you know?

    Article 51 ‘A’ contained in Part IV A i.e. Fundamental Duties asks:

    To abide by the constitution and respect its ideals and institutions, the National Flag and the National Anthem in clause (a).

    Other provisions

    • Section 3.22 of The Flag Code of India, 2002 deals with laws, practices and conventions that apply to the display of the national flag.
    • Section 3.58 says: On occasions of State/Military/Central Paramilitary Forces funerals, the flag shall be draped over the bier or coffin with the saffron towards the head of the bier or coffin.
    • The Flag shall not be lowered into the grave or burnt in the pyre.

    Try this PYQ:

    Q.The national motto of India, ‘Satyameva Jayate’ inscribed below the Emblem of India is taken from:

    (a) Katha Upanishad

    (b) Chandogya Upanishad

    (c) Aitareya Upanishad

    (d) Mundaka Upanishad

    Use of flag in funerals

    • The flag can only be used during a funeral if it is accorded the status of a state funeral.
    • Apart from police and armed forces, state funerals are held when people who are holding or have held the office of President, Vice-President, PM, Cabinet Minister, or state CM pass away.
    • The status of a state funeral can be accorded in case of death of people not belonging to the armed forces, police or the above-mentioned categories by the state government.
    • Then too, the national flag can be used.

  • Donation reports of only 3.39% registered unrecognized parties available in public domain

    The contribution reports of only 78 (3.39%) of the total 2,301 registered unrecognized political parties are available in the public domain for 2018-19 reports the Association For Democratic Reforms (ADR).

    Classification of Political Parties in India

    (A) National parties

    A registered party is recognised as a national party only if it fulfils any one of the three conditions listed below:

    • A party should win 2% of seats in the Lok Sabha from at least three different states.
    • At a general election to Lok Sabha or Legislative Assembly, the party polls 6% of votes in any four or more states and in addition, it wins four Lok Sabha seats.
    • A party gets recognition as a state party in four states.
    • A party recognised as a National party can be derecognized if it fails to maintain the criteria.

    (B) State parties

    A party has to fulfil any of the following conditions for recognition as a state party:

    • A party should secure at least 6% of valid votes polled in an election to the state legislative assembly and win at least 2 seats in that state assembly.
    • A party should secure at least 6% of valid votes polled in an election to Lok Sabha and win at least 1 seat in Lok Sabha.
    • A party should win a minimum of three per cent of the total number of seats or a minimum of three seats in the Legislative Assembly, whichever is higher.
    • A party should win at least one seat in the Lok Sabha for every 25 seats or any fraction thereof allotted to that State.
    • Under the liberalized criteria, one more clause that it will be eligible for recognition as state party if it secures 8% or more of the total valid votes polled in the state.

  • Sub-categorization of OBCs: Development so far

    The Centre has extended the tenure of the Commission to Examine Sub-categorisation of Other Backward Classes (OBCs) headed by Justice G Rohini, till 31st July this year.

    Rs 1.92 crore have been spent on the Commission including salary, consultant fee and other expenses and the report is yet to be publicized. It is can be very well understood that the report will have huge political consequences.

    What is the sub-categorisation of OBCs?

    • OBCs are granted 27% reservation in jobs and education under the central government.
    • In September 20202, a Constitution Bench of the Supreme Court reopened the legal debate on sub-categorisation of SCs and STs for reservations.
    • The debate arises out of the perception that only a few affluent communities among over 2,600 included in the Central List of OBCs have secured a major part of this 27% reservation.

    Need for sub-categorization

    • The argument for sub-categorisation — or creating categories within OBCs for reservation — is that it would ensure “equitable distribution” of representation among all OBC communities.
    • To examine this, the Rohini Commission was constituted on October 2, 2017.
    • At that time, it was given 12 weeks to submit its report but has been given several extensions since, the latest one being the 10th.
    • Before the Rohini Commission was set up, the Centre had granted constitutional status to the National Commission for Backward Classes (NCBC).

    What are the Commissions’ terms of reference?

    It was originally set up with three terms of reference:

    1. To examine the extent of inequitable distribution of benefits of reservation among the castes or communities included in the broad category of OBCs with reference to such classes included in the Central List;
    2. To work out the mechanism, criteria, norms and parameters in a scientific approach for sub-categorisation within such OBCs;
    3. To take up the exercise of identifying the respective castes or communities or sub-castes or synonyms in the Central List of OBCs and classifying them into their respective sub-categories.

    The fourth term of reference was added on January 22, 2020, when the Cabinet granted it an extension:

    1. To study the various entries in the Central List of OBCs and recommend correction of any repetitions, ambiguities, inconsistencies and errors of spelling or transcription.

    Why so many extensions are being given?

    • This was added following a letter to the government from the Commission on July 30, 2019.
    • In process of preparing the sub-categorised central list of OBCs, the Commission has noted several ambiguities in the list as it stands now.
    • The Commission is of the opinion that these have to be clarified/rectified before the sub-categorised central list is prepared.

    What progress has it made so far?

    • In its letter to the government on July 30, 2019, the Commission wrote that it is ready with the draft report (on sub-categorisation).
    • Following the latest term of reference given (on January 22, 2020) to the Commission, it is studying the list of communities in the central list.

    How smooth has its work been?

    • A hurdle for the Commission has been the absence of data for the population of various communities to compare with their representation in jobs and admissions.
    • On August 31, 2018, then Home Minister had announced that in Census 2021, data of OBCs will also be collected, but since then the government has been silent on this.
    • Many groups of OBCs have been demanding enumeration of OBCs in the Census.

    What have its findings been so far?

    • In 2018, the Commission analysed the data of 1.3 lakh central jobs given under OBC quota over the preceding five years and OBC admissions to central higher education institutions.
    • The findings were: 97% of all jobs and educational seats have gone to just 25% of all sub-castes classified as OBCs; 24.95% of these jobs and seats have gone to just 10 OBC communities.
    • 983 OBC communities — 37% of the total — have zero representation in jobs and educational institutions; 994 OBC sub-castes have a total representation of only 2.68% in recruitment and admissions.

  • Bill coming on Delhi government and L-G functions

    The Ministry of Home Affairs (MHA) is all set to introduce legislation to amend a 1991 Act pertaining to the powers and functions of the Delhi government and the Lieutenant Governor (LG).

    What is the new bill?

    • The Bill is likely to clearly define the powers of the LG and the Delhi government on the lines of the Supreme Court judgment of February 2019.
    • It is likely to give more teeth to the LG’s office.

    Why need such a law?

    • The Delhi UT government is often at loggerheads with the Centre on administrative matters in the Capital.

    What made it to the news?

    • A Supreme Court Bench of Justices A.K. Sikri and Ashok Bhushan had, other than the question of services, given a unanimous verdict on the role of the two authorities.
    • In the February 14, 2019 verdict, the court upheld as “legal” the MHA’s 2015 notifications authorising the LG to exercise powers in relation to services.
    • It had directed the Anti-Corruption Branch (ACB) police not to take cognizance of offences against Central government officials.

    SC confirms HC findings

    • The apex court confirmed the Delhi High Court’s finding that the ACB’s jurisdiction is confined to Delhi officials and statutory bodies and does not extend to Central government officials.
    • Last year, the MHA notified the rules for the newly created UT of J&K, where it provided a solution in case of difference of opinion between the LG and a Minister.
    • It ruled that if no agreement could be reached even after a month, the decision of the Lieutenant Governor shall be deemed to have been accepted by the Council of Ministers.

    What are the key propositions?

    • According to changes proposed in the new Act, the LG could act in his discretion in any matter that is beyond the purview of the powers of the Assembly of Delhi.
    • This would be in matters related to the All India (Civil) Services and the ACB.

    Back2Basics: Special Status for New Delhi

    • Article 239AA of the Constitution of India granted Special Status to Delhi among Union Territories (UTs) in the year 1991 through 69th constitutional amendment.
    • It provided a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers.
    • That’s when Delhi was named as National Capital Region (NCT) of Delhi.
    • As per this article – Public Order, Police & Land in NCT of Delhi fall within the domain and control of Central Government which shall have the power to make laws on these matters.
    • For remaining matters of State List or Concurrent List, in so far as any such matter is applicable to UTs, the Legislative Assembly shall have the power to make laws for NCT of Delhi.

  • Maharashtra to introduce ballot papers along with EVMs

    Maharashtra Assembly Speaker has directed the State Law and Justice Department to prepare the draft of a Bill which provides an option to voters to exercise their franchise on ballot papers along with electronic voting machines (EVMs).

    Manner of holding elections

    • Article 328 of the Indian Constitution and number 37 of the State List of the seventh schedule of the Constitution provide rights to the State legislature to formulate a law on the manner of holding elections within the State.
    • The state cannot abolish the EVMs completely.
    • They are just demanding an additional provision of ballot paper as well for whoever wants to use that.
    • Directions have been given to check the constitutional validity of the argument and prepare the draft of a Bill.

    Background

    • The Election Commission has been conducting all elections through EVMs since 2001.
    • The Indian EVM is a direct recording device, which is a stand-alone machine.
    • The Election Commission has clarified several times that Indian EVMs don’t talk to any machine outside its own system – be it through a wired network, internet, satellite, and WiFi or Bluetooth.
    • The EVM is not connected to the server, so cyber hacking of Indian EVMs is not possible unless an authorised person acts with malafide intention.
    • In 2014, a whopping 55.38 crore people cast their votes in EVMs in the parliamentary elections.

    Considerations behind such a move

    • On EVMs, a voter can never be 100% sure about whom he or she has voted and whether that particular candidate has received the vote.
    • It is a right of every voter to be 100% sure about it and also essential for the democratic process.”
    • Over the past few years, serious concerns and doubts had been raised over the EVMs and whether those could be manipulated.
    • The option of ballot voting would boost people’s confidence in the electoral process which would ultimately lead to an increase in voting percentage.

    Q.The EC’s role in ensuring the people’s faith in democracy is paramount. The loss of public faith in democracy and its protector institutions spells nothing but disaster. Discuss.

  • India Justice Report, 2020

    The second edition of the Indian Justice Report (IJR) was recently launched.

    Note the findings of this report. It is the only such report of its kind published in India.

    India Justice Report

    • The IJR is an initiative of Tata Trusts in collaboration with Centre for Social Justice, Common Cause and Commonwealth Human Rights Initiative among others.
    • It was first published in 2019.
    • It brings together otherwise siloed statistics from authoritative government sources, on the four pillars of justice delivery – Police, Judiciary, Prisons and Legal Aid.

    Major highlights of the Report

    • The report highlights stark conclusions when aggregated for an all-India picture.
    • Women comprise only 29 per cent of judges in India.
    • Two-thirds of the country’s prisoners are yet to be convicted.
    • In the last 25 years, since 1995, only 1.5 crore people have received legal aid, though 80 per cent of the country’s population is entitled to.
    • The report gives ranks Maharashtra once again at the top of the 18 large- and mid-sized states (with a population of over one crore each), followed by Tamil Nadu, Telangana, Punjab and Kerala.
    • The list of seven small states (population of less than one crore each) was topped by Tripura, followed by Sikkim and Goa.

  • Centre’s scrutiny of UP’s conversion ban ordinance

    The ordinance on unlawful religious conversions, promulgated by the UP government last year, has not been sent to the Centre for examination, according to a reply from the Union Home Ministry.

    What is the news?

    • The Ministry of Home Affairs (MHA) examines bills passed by State assemblies that are repugnant with Central laws before they get the President’s assent to become a law.
    • This is done in accordance with Article 213 of the Constitution which provides for an ordinance making power of the Governor of a state.

    What does Article 213 say?

    • Governor of an Indian state draws ordinance making power from Article 21.
    • This Article empowers the Governor to promulgate Ordinance, during the recess of the legislature, if circumstances exist which render it necessary for him to take immediate action.
    • To issue an Ordinance, the Governor must be satisfied with the circumstances that make it necessary for him to take immediate action.
    • All Ordinances promulgated by the Governor in the State have the same effect and force as an Act of Legislature of the State.
    • The Ordinance must be laid before the State Legislature when it reassembles and it must be upheld by the State legislature, failure to which the Ordinance would be invalid.

    Governor CANNOT promulgate an ordinance if:

    1. The Ordinance has the provisions which of embodied in a bill would require President’s sanction.
    2. The Ordinance has the provisions which the governor would reserve as a Bill containing them for the President’s sanction.
    3. If an act of the State Legislature has the same provisions that would be invalid without the assent of the President.

    Try this PYQ:

    Q.Which of the following are the discretionary powers given to the Governor of a State?

    1. Sending a report to the President of India for imposing the President’s rule
    2. Appointing the Ministers
    3. Reserving certain bills passed by the State Legislature for consideration of the President of India
    4. Making the rules to conduct the business of the State Government

    Select the correct answer using the code given below:

    (a) 1 and 2 only

    (b) 1 and 3 only

    (c) 2, 3 and 4 only

    (d) 1, 2, 3 and 4

    Centre’s scrutiny of ordinances

    • MHA sends State bills for inter-ministerial consultation before they get the President’s nod.
    • This is done only when it has repugnancy with central laws, deviates from national or central policy and when it can be challenged for legal and constitutional validity.

    Controversy with UP’s ordinance

    • The controversial ordinance was promulgated in November 2020 and so far more than 90 people, most of them minorities, have been booked.
    • The law makes religious conversion a non-bailable offence, inviting penalties of up to 10 years in prison.
    • It is on the ground if guilty is found to be effected for marriage or through misrepresentation, force, undue influence, coercion, allurement or other alleged fraudulent means.
    • According to the Ordinance, in case of conversion done by a woman for the sole purpose of marriage, the marriage would be declared null and void.

    Back2Basics: Ordinance

    • Article 123 of the Constitution of India gives the power and authority to the President of India to issue an ordinance only when both the Houses of Parliament are not in session.
    • In addition, it states that any ordinance can have the same force and effect as a statute of Parliament only if it is laid before both the houses of the Parliament.
    • Further, Ordinance so made will hold good only for the duration of six weeks from the reassembly of Parliament.
    • Article 213 mandates near-identical terms with respect to the ordinances on the subject of State authority.
    • It is understood that the authority to issue ordinances shall be used only to meet the emergent demands arising out of extraordinary situations.

  • POCSO Act

    In a recent judgement, Section 7 of POCSO Act was interpreted in a controversial way by the Nagpur Bench of the Bombay High Court. 

    Issue of the definition of sexual assault under POCSO Act

    • Recently, the Nagpur Bench of the Bombay High Court held that skin-to-skin contact is essential to constitute the offence defined under Section 7 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).
    • Section 354 of the Indian Penal Code, 1860, which deals with outraging modesty of women and which provides for a lesser sentence, was held to be applicable in such cases.
    • This ruling raises several concerns.
    • The National Commission for Protection of Child Rights had asked the Maharashtra government to appeal this decision in the Supreme Court.
    • The Supreme Court has currently stayed the acquittal of the accused under this judgement.

    Concerns with the judgement

    • The Court held that the stringent nature of punishment provided for the offence required stricter proof and serious allegations.
    • The court said the punishment should be proportionate to the seriousness of the crime.
    • Nevertheless, while adjudging the seriousness of the offence the court has not given consideration to the fact that the victim, a minor, is entitled to greater protection.
    • The major concern is that the interpretation of the court seems to defeat the purpose of the POCSO Act.
    • Section 7 of POCSO defines sexual assault as “Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.”
    •  The court has concluded that the touching of the breast without skin-to-skin contact is not similar to the abovementioned acts and, therefore, does not fall within this definition.
    • The court seems to have followed a rather pedantic approach to reach this conclusion.
    • The fact that the trauma of the child whose breasts were groped through a cloth could be of the same nature and severity as direct touching of the breast is not discussed.
    • And if the trauma is the same, the mere existence of cloth should not affect the applicability of the POCSO Act.

    Legislative history and object of POCSO Act

    POCSO Act

    • The POCSO Act was enacted with the specific intention of protecting children from sexual assault and sexual harassment.
    • It took into consideration the standards prescribed by the Convention on the Rights of the Child adopted by the General Assembly of the United Nations to which the Indian government acceded to on December 11, 1992.
    • The Act acknowledges the special vulnerability of children and that special protection, above and beyond that provided in the IPC, is required when the victim is a child.

    Conclusion

    If such an interpretation is followed, there is a threat that the POCSO Act in itself might become redundant as a wide range of sexually violative activities would be excluded from its ambit due to lack of skin-to-skin contact.