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Subject: Polity

  • 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.

  • President’s address in Parliament

    Many Opposition parties announced their decision to boycott the President’s address to the joint sitting of Parliament at the start of the Budget session in solidarity with the farmers protesting against the three farm laws.

    Try this PYQ:

    Q. The President’s address is one of the most solemn occasions in the Parliamentary calendar. Discuss. Highlight its importance in Parliamentary Democracy.

    President’s address

    • The Constitution gives the President the power to address either House or a joint sitting of the two Houses of Parliament.
    • Article 87 provides two special occasions on which the President addresses a joint sitting. The first is to address the opening session of a new legislature after a general election.
    • The second is to address the first sitting of Parliament each year. A session of a new or continuing legislature cannot begin without fulfilling this requirement.
    • When the Constitution came into force, the President was required to address each session of Parliament.

    In the UK, the history of the monarch addressing the Parliament goes back to the 16th century.  In the US, President Gorge Washington addressed Congress for the first time in 1790.

    History & precedent

    • In India, the practice of the President addressing Parliament can be traced back to the Government of India Act of 1919.
    • This law gave the Governor-General the right of addressing the Legislative Assembly and the Council of State.
    • The law did not have a provision for a joint address but the Governor-General did address the Assembly and the Council together on multiple occasions.
    • There was no address by him to the Constituent Assembly (Legislative) from 1947 to 1950.
    • And after the Constitution came into force, President Rajendra Prasad addressed members of Lok Sabha and Rajya Sabha for the first time on January 31, 1950.

    By the govt, about the govt

    • The President’s speech essentially highlights the government’s policy priorities and plans for the upcoming year. The address provides a broad framework of the government’s agenda and direction.
    • There is no set format for the President’s speech. The Constitution states that the President shall “inform Parliament of the cause of the summons”.

    How it is done in India?

    • The speech that the President reads is the viewpoint of the government and is written by it.
    • Usually, in December, the PM’s Office asks the various ministries to start sending in their inputs for the speech.
    • A message also goes out from the Ministry of Parliamentary Affairs asking ministries to send information about any legislative proposals that need to be included in the President’s address.
    • All this information is aggregated and shaped into a speech, which is then sent to the President. The government uses the President’s address to make policy and legislative announcements.

    Assembly debates on the matter

    • During the making of the Constitution, Prof K T Shah wanted the President’s address to be more specific.
    • He suggested that the language be changed to specify that the President shall inform Parliament “on the general state of the Union including financial proposals, and other particular issues of policy he deems suitable for such address”.
    • His amendment was inspired by the US Constitution, according to which the President gives to Congress information on the State of the Union, and recommend measures as he shall judge necessary.
    • But Shah’s amendment was rejected by the Constituent Assembly.
    • The address of the President follows a general structure in which it highlights the government’s accomplishments from the previous year and sets the broad governance agenda for the coming year.

    Notable addresses till date

    • In 1985 President Giani Zail Singh announced that PM Rajiv Gandhi’s government intended to introduce a new national education policy and the anti-defection law.
    • In 1996, PM Vajpayee’s 13-day government announced its intention of giving statehood to Uttaranchal and Vananchal (Jharkhand) and 33 percent reservation to women in legislatures.
    • During his second stint in 1999, Vajpayee’s government mooted the idea of a fixed term for Lok Sabha and State Vidhan Sabhas.
    • After the devastating tsunami of 2004, PM Manmohan Singh’s government used the President’s Address to announce the creation of a national law for disaster management.

    Procedure & tradition

    • In the days following the President’s address, a motion is moved in the two Houses thanking the President for his address.
    • This is an occasion for MPs in the two Houses to have a broad debate on governance in the country.
    • The PM replies to the motion of thanks in both Houses and responds to the issues raised by MPs.
    • The motion is then put to vote and MPs can express their disagreement by moving amendments to the motion.

    Role of the opposition

    • Opposition MPs have been successful in getting amendments passed to the motion of thanks in Rajya Sabha on five occasions (1980, 1989, 2001, 2015, 2016).
    • They have been less successful in Lok Sabha. For example in 2018, Lok Sabha MPs tabled 845 amendments of which 375 were moved and negated.

    Significance of the address

    • The President’s address is one of the most solemn occasions in the Parliamentary calendar.
    • It is the only occasion in the year when the entire Parliament, i.e. the President, Lok Sabha, and Rajya Sabha come together.
    • The event is associated with ceremony and protocol.
    • The Lok Sabha Secretariat prepares extensively for this annual event.
    • In the past, it used to get 150 yards of red baize cloth from the President’s house for the ceremonial procession.

  • The right of life and environment

    The article highlights how climate change impacts the constitutional values and promises by affecting the vulnerable disproportionately and suggest the distinctly Indian paradigm of development.

    How democratic values are threatened by climate change

    • Over the last seven decades, India has made distinct progress, but many core development challenges persist and we are yet to fulfill our constitutional promise.
    • Climate change will only exacerbate existing inequalities through a range of cascading and coinciding crises.
    • These words from the Preamble — justice, liberty, equality, and fraternity — serve as reminders of the daunting path to achieving social democracy, especially in a warming world.
    • B R Ambedkar had said that to maintain democracy not merely in form, but also in fact it was essential not to be content with mere political democracy but to strive for social democracy as well.

    How climate change affects democratic values

    • Climate change is profoundly unjust.
    •  It will increasingly impinge upon our freedom of movement, and that it could deny equality of status and opportunity to millions of disadvantaged citizens like the forest-dwelling communities who have contributed least to the crisis and yet stand to be hit the hardest.
    • The evidence is clear that unless we rapidly move to reduce planet-warming greenhouse gas emissions, vast swathes of India could be inhospitable due to floods, droughts, heatwaves, and increasingly erratic and unpredictable monsoon rains.

    Call for action against climate change

    • The fraternity can particularly serve as a call to action for the powerful to direct their resources towards shaping India’s response to climate change and “assuring the dignity of the individual”, as framed in the Preamble.
    • Indian business and philanthropy can play a key role in building resilience by encouraging innovation, complementing the role of the state, and securing citizens’ legislated rights.
    • Climate philanthropy can help develop and pilot new solutions and inspire ambitious political action.
    • A plethora of opportunities are currently on the margins but could become mainstream drivers for the three key pillars of jobs, growth, and sustainability.
    • A distinctly Indian, climate-friendly development paradigm powered by clean energy could play an integral role in fostering social and economic justice by uplifting millions of Indians.
    • Our nation’s welfare depends on healing the broken relationship between a broken economy and a broken ecology.

    Constitutional mandate to protect the environment

    • The right to life enshrined in Article 21 is increasingly interpreted as a right to environment.
    • When this is read together with Articles 48A and 51A(g), there is a clear constitutional mandate to protect the environment that will only grow more important in the coming decades for citizens and the executive, legislature, and judiciary.
    • Central to these considerations is the need for a uniquely Indian climate narrative, one that is both by and for Indians.

    Consider the question “Our constitutional values must guide us to a distinctly Indian, climate-friendly development paradigm to fulfil the constitutional commitment to its citizens. Comment.”

    Conclusion

    India can build its own pathway to become a climate leader aiming to secure a future where both people and nature can thrive. Much of this work can be rooted in the constitutional framework that binds together millions of Indians despite their myriad differences — a framework that is progressive in scope and ambitious in vision.

  • Petition in SC seeks Guidelines for Electronic Media

    The Supreme Court has decided to examine a petition seeking the framing of guidelines outlining the broad regulatory paradigm within which the right to free speech of broadcasters and electronic media can be judicially regulated.

    What is the petition about?

    • The petition wants the court to consider substantial questions of law, including whether the electronic media enjoys greater freedom than ordinary citizens and whether they could only be subject to self-regulation.
    • It has questioned whether free speech entails misinformation, fake news, hate speech, propaganda, paid news, communal and derogatory reportage, incitement, etc.
    • It has asked whether regulation will amount to the curtailment of the Press if done within the parameters specified under “reasonable restrictions” of Article 19(2) of the Constitution.
    • The plea said the right to life and dignity envisaged the right of citizens to “free, fair and proportionate media reporting”.

    What is Article 19(2)?

    • This article authorizes the government to impose, by law, reasonable restrictions upon the freedom of speech and expression “in the interests of… public order.”
    • To understand the Supreme Court’s public order jurisprudence, it is important to break down the sub-clause into its component parts and focus upon their separate meanings.
    • Specifically, three terms are important: “reasonable restrictions”, “in the interests of”, and “public order”.
    • Clause (2) enables the legislature to impose certain restrictions on free speech under the following heads:
    1. Security of the State
    2. Friendly relations with foreign states
    3. Public order
    4. Decency and morality
    5. Contempt of court
    6. Defamation
    7. Incitement to an offense and
    8. Sovereignty and integrity of India
    • Reasonable restrictions on these grounds can be imposed only by a duly enacted law and not by executive action.

    The task before the court

    • The principal issue before the court is to bring about a balance between the right to freedom of speech and the expression of the media and various other rights.
    • These include the competing right to information of the citizenry, the right to reputation and dignity as well as the interest of preserving peace and harmony in the nation.

  • What is Non-price Competition?

    Data privacy can take the form of non-price competition and abuse of dominance can lower privacy protection, a study by the Competition Commission of India (CCI) has said.

    Try this PYQ:

    Q.Right to Privacy is protected as an intrinsic part of Right to Life and Personal Liberty. Which of the following in the Constitution of India correctly and appropriately imply the above statements?

    (a) Article 14 and the provisions under the 42nd Amendment to the Constitution

    (b) Article 17 and the Directive Principles of State Policy in Part IV

    (c) Article 21 and the freedoms guaranteed in Part III

    (d) Article 24 and the provisions under the 44th Amendment to the Constitution

    What is Non-price Competition?

    • Non-price competition is a marketing strategy “in which one firm tries to distinguish its product or service from competing products on the basis of attributes like design and workmanship”.
    • It often occurs in imperfectly competitive markets as it exists between two or more producers that sell goods and services at the same prices but compete through non-price measures.
    • Such measures include marketing schemes and greater quality or any sustainable competitive advantage other than price.

    What is CCI’s observation?

    • The CCI study made observations about non-price factors such as quality of service (QoS), data speeds etc. which are likely to be the new drivers of competitive rivalry between service providers in the telecom sector.
    • CCI noted that an aspect of data in the context of competition in digital communications market is the conflict between allowing access and protecting consumer privacy.

    Privacy at stake

    • Abuse of dominance can take the form of lowering the privacy protection and therefore fall within the ambit of antitrust as low privacy standard implies lack of consumer welfare.
    • Privacy can take the form of non-price competition, said the CCI.
    • On other non-price factors of competition, CCI found that consumers ranked network coverage at the top followed by customer service despite their Privacy.