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Subject: Polity

  • What is Recusal of Judges?

    In the last week, two Supreme Court judges have recused themselves from hearing cases relating to West Bengal.

    Can you list down some basic principles of judicial conduct?

    Independence, Impartiality, Integrity, Propriety, Competence and diligence and Equality are some of them as listed under the Bangalore Principles of Judicial Conduct.

    What is the Recusal of Judges?

    • Recusal is the removal of oneself as a judge or policymaker in a particular matter, especially because of a conflict of interest.
    • Recusal usually takes place when a judge has a conflict of interest or has a prior association with the parties in the case.
    • For example, if the case pertains to a company in which the judge holds stakes, the apprehension would seem reasonable.
    • Similarly, if the judge has, in the past, appeared for one of the parties involved in a case, the call for recusal may seem right.
    • A recusal inevitably leads to delay. The case goes back to the Chief Justice, who has to constitute a fresh Bench.

    Rules on Recusals

    • There are no written rules on the recusal of judges from hearing cases listed before them in constitutional courts. It is left to the discretion of a judge.
    • The reasons for recusal are not disclosed in an order of the court. Some judges orally convey to the lawyers involved in the case their reasons for recusal, many do not. Some explain the reasons in their order.
    • The decision rests on the conscience of the judge. At times, parties involved raise apprehensions about a possible conflict of interest.

    Issues with recusal

    • Recusal is also regarded as the abdication of duty. Maintaining institutional civilities are distinct from the fiercely independent role of the judge as an adjudicator.
    • In his separate opinion in the NJAC judgment in 2015, Justice Kurian Joseph highlighted the need for judges to give reasons for recusal as a measure to build transparency.
    • It is the constitutional duty, as reflected in one’s oath, to be transparent and accountable, and hence, a judge is required to indicate reasons for his recusal from a particular case.

  • Delimitation in Jammu and Kashmir: how, why

    The Union government’s invitation to 14 key political leaders from Jammu and Kashmir for a meeting with the PM has led to speculation about the possible scheduling of the Assembly elections. However, the delimitation of constituencies is crucial for kick-starting any political process in J&K.

    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 change in the number of seats in a state.

    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

    How often has delimitation been carried out in J&K?

    • Delimitation exercises in J&K in the past have been slightly different from those in the rest of the country because of the region’s special status — which was scrapped by the Centre in August 2019.
    • Until then, the delimitation of Lok Sabha seats in J&K was governed by the Constitution of India, but the delimitation of the state’s Assembly was governed by the J&K Constitution and J&K Representation of the People Act, 1957.
    • Assembly seats in J&K were delimited in 1963, 1973 and 1995.
    • The last exercise was conducted by the Justice (retired) K K Gupta Commission when the state was under President’s Rule and was based on the 1981 census, which formed the basis of the state elections in 1996.
    • There was no census in the state in 1991 and no Delimitation Commission was set up by the state government after the 2001 census as the J&K Assembly passed a law putting a freeze until 2026.

    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.

    What is the status of this 2020 Delimitation?

    • Although the Commission was tasked to finish delimitation in a year, on March 4 this year, it was granted a year’s extension.
    • This was done at the request of the panel members since it couldn’t make much progress due to the Covid-19-induced shutdown across the country.

  • Significance of recent judgments in UAPA cases

    Recent judgements involving UAPA highlights the issues with certain provisions resulting in long years of undertrial imprisonment.

    Context

    In the past week, three seminal judgments involving the Unlawful Activities (Prevention) Act, 1967 (UAPA) have been delivered. While these judgments are welcome developments, they also remind us that thousands continue to languish under the UAPA regime.

    Issues with the provisions of UAPA

    • Originally enacted in 1967, the UAPA was amended to be modelled as an anti-terror law in 2004 and 2008.
    • The period of detention is increased, enlarging the period of custody prior to which default bail cannot be granted.
    • Regular bail is subject to the satisfaction of the judge that no prima facie case exists.
    • Bail apart, the dilatory trial procedures ensure lengthy periods of pre-trial incarceration for the accused who are presumed guilty of heinous terror crimes.

    NCRB data reveal long years of undertrial imprisonment

    • As per the National Crime Records Bureau (NCRB) data, a total of 4,231 FIRs were filed under various sections of the UAPA between 2016 and 2019.
    •  While the number of acquittals is low,  the real picture emerges in the pendency rates.
    • The pendency rate at the level of police investigation is very high, at an average of 83 per cent.
    • This denotes that chargesheets are filed by the police on an average in about 17 per cent of the total cases taken up for investigation.
    • The rate of pendency at the level of trial is at an average of 95.5 per cent.
    • This indicates that trials are completed every year in less than 5 per cent cases.

    What did the courts say in various judgements?

    • The Supreme Court, in Union of India v K A Najeeb, held that despite restrictions on bail under the UAPA, constitutional courts can still grant bail on the grounds that the fundamental rights of the accused have been violated.
    • In Asif Iqbal Tanha v State of NCT of Delhi, the Delhi High Court took this reasoning a step further, holding that it would not be desirable for courts to wait till the accused’s rights to a speedy trial are entirely vitiated before they are set at liberty.
    • Courts should exercise foresight, and in cases with hundreds of prosecution witnesses where a trial will not see a conclusion for years to come, courts should apply the principles laid down in Najeeb.

    Way forward

    •  Even within the constraints of the UAPA, much can be achieved if a responsive and independent judiciary follows the basic principles of natural justice and due process.
    • But access to the judiciary remains limited for most of the thousands incarcerated under this widely-used law.

    Conclusion

    The governments need to consider the issue of pendency of cases under UAPA and take steps to address the issues by either repealing certain provisions or ensuring speedy trials.

  • Section 27A of the NDPS Act

    Last week, the Tripura High Court, in a significant verdict, discovered an oversight in drafting the 2014 amendments to the Narcotics Drugs and Psychotropic Substances Act, 1985.

    What is Section 27A?

    • The NDPS had unintentionally rendered a key provision of the Act, Section 27A which provides for punishment of those financing illicit trafficking, inoperable.
    • This section has been consistently evoked since a year after the alleged suicide of a notable Bollywood actor after drugs intoxication.

    What is the provision?

    • The NDPS Act, 1985 is the principal legislation through which the state regulates the operations of narcotic drugs and psychotropic substances.
    • It provides a stringent framework for punishing offenses related to illicit traffic in narcotic drugs and psychotropic substances through imprisonments and forfeiture of property.
    • Section 27A of the NDPS Act, 1985, prescribes the punishment for financing illicit traffic and harboring offenders.
    • The court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.”

    So why is this provision inoperable?

    • The text of the provision says that offences mentioned under Section 2(viiia) sub-clauses i-v are punishable through Section 27A.
    • However, Section 2 (viiia) sub-clauses i-v, which is supposed to be the catalog of offences, does not exist after the 2014 amendment.
    • So, if Section 27A penalises a blank list or a non-existent provision, it can be argued that it is virtually inoperable.

    What was the 2014 amendment?

    • In 2014, a key amendment was made to the NDPS Act to allow for better medical access to narcotic drugs.
    • Since the regulation under NDPS was very stringent, despite being a leading manufacturer of morphine, an opioid analgesic used as a painkiller, it was difficult to access the drug even for hospitals.

    Exceptions for essential drugs

    • The 2014 amendment essentially removed state-barriers in transporting, licensing drugs classified as “essential narcotic drugs”, and made it centralized.
    • This was done by first introducing a provision in Section 2 that defines essential narcotic drugs, and subsequently in Section 9 allowing the manufacture, possession, transport, import inter-State, export inter-State, sale, purchase, consumption and use of essential narcotic drugs.
    • The amendment to add the definition of essential narcotic drugs re-lettered the old Section 2(viii)a that was the catalog of offences as Section 2(viii)b, and under the Section 2(viii)a, defined essential narcotic drugs.
    • However, the drafters missed amending the enabling provision in Section 27A to change Section 2(viii)a to Section 2(viii)b.

    How was this error noticed?

    • In 2016, an accused sought bail before a special judge in West Tripura in Agartala citing this omission in drafting.
    • The accused’s plea was that since Section 27A penalized a blank list, he could not be charged under the offence.
    • The district judge then referred the case to the Tripura High Court.

    What did the HC decide?

    • The Law Ministry had argued that the court must overlook the omission and read the legislation as a whole. It also told the court that the provision would be amended to rectify the dissonance.
    • The Tripura HC agreed with the government’s view, but said that it may not be the best solution.
    • The amendment is yet to take place. However, criminal laws cannot be amended retrospectively.
    • Article 20 of the Constitution guarantees protection against double jeopardy.
    • So even if the amendment is brought in, the result of the drafting error could lead to more constitutional questions being raised.

    Back2Basics: Article 20 of the Indian Constitution

    The Article 20 is one of the pillars of fundamental rights guaranteed by the Constitution of India. It mainly deals with protection of certain rights in case of conviction for offences.

    (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

    (2) No person shall be prosecuted and punished for the same offence more than once.

    (3) No person accused of any offense shall be compelled to be a witness against himself.

  • 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.