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Subject: Polity

  • Collegium system’s role in protecting democracy

    Context

    Judiciary is being challenged, from within and outside. It must shield itself from further erosion of its independence and competence by scrupulously following the law, as declared by the Supreme Court (SC) itself.

    How the Collegium helped to secure the independence of judiciary

    • In 1993, the SC held the following:
    • The process of appointment of Judges to the Supreme Court and the High Courts is an integrated ‘participatory consultative process’.
    • The process aims at selecting the best and most suitable persons available for appointment.
    • The Collegium consists of the CJI and the four senior-most judges of the SC and high courts.
    • It was devised to ensure that the opinion of the Chief Justice of India is not merely his individual opinion, but an opinion formed collectively by a body of men at the apex level in the judiciary.
    • By judicial interpretation, the Supreme Court re-interpreting Article 124 and 214 of the Constitution empowered the judiciary to make appointments to the higher judiciary to secure the rule of law.

    Threat to the judicial independence

    • The framers of the Constitution were alive to the likely erosion of judicial independence.
    • On May 23, 1949, K T Shah stated that the Judiciary, which is the main bulwark of civil liberties, should be completely separate from and independent of the Executive, whether by direct or by indirect influence.
    • In  2016, the Supreme Court struck down a constitutional amendment for creating the National Judicial Appointments Commission (NJAC).
    • The SC strongly disapproved of any role for the political executive in the final selection and appointment of judges.
    • The SC said that “reciprocity and feelings of payback to the political executive” would be disastrous to the independence of the judiciary.

    Consider the question “How the Collegium system helped the Judiciary secure its independence? What are the issues with it?”

    Conclusion

    The selection of deserving judges is essential to ensure the independence of the judiciary. The Collegium must do its best in this task.

    Back2Basics: About the National Judicial Appointments Commission

    • The NJAC or National Judicial Appointments Commission sought to change the system, where judges would have been appointed by a commission where the legislative and the executive would have had a role.
    • The NJAC was supposed to comprise of the Chief Justice of India (Chairperson, ex-officio), two other senior judges of the Supreme Court, The Union Minister of Law and Justice, ex-officio and two eminent persons, to be appointed by the Chief Justice of India, Prime Minister of India, and Leader of Opposition in the Lok Sabha.
    • The bill was passed by the Lok Sabha on 13 August 2014 and by the Rajya Sabha on 14 August 2014, and became an Act.
    • The NJAC replaced the collegium system for the appointment of judges.
    • The NJAC Bill and the Constitutional Amendment Bill, was ratified by 16 of the state legislatures in India, and the President gave his assent on 31 December 2014.
    • The NJAC Act became effective from April 13, 2015.
    • The NJAC enjoyed support from the Supreme Court Bar Association and many legal luminaries but was also challenged by some lawyer associations and groups before the Supreme Court of India through Writ Petitions.
    • A three-judge bench of the Supreme Court referred the matter to a Constitution Bench that heard different arguments for over a month.
    •  Finally, on October 16, a five-judge bench of the Supreme Court declared the 99th Constitutional Amendment Act and the NJAC Act 2014 “unconstitutional and void”.

  • What is Tele-Law Scheme?

    The Law Ministry recently commemorated an event to mark the coverage of more than nine lakh beneficiaries of the government’s tele-law scheme, using common service centres (CSCs) to provide justice across the country.

    Tele-Law Scheme

    • The concept of Tele-Law is to facilitate the delivery of legal advice through a panel of lawyers stationed at the State Legal Services Authorities (SALSA) and CSC.
    • Tele-Law means the use of communications and information technology for the delivery of legal information and advice.
    • The project initiates to connect citizens with lawyers through video conferencing facilities by the Para-Legal Volunteers stationed at identified 50,000 CSCs.
    • This e-interaction between lawyers and people would be through the video-conferencing infrastructure available at the CSCs.

    Features of the program

    • Under this programme, smart technology of video conferencing, telephone/instant calling facilities available at the vast network of CSC.
    • It enables anyone to seek legal advice without wasting precious time and money.
    • The service is free for those who are eligible for free legal Aid as mentioned under Section 12 of the Legal Services Authority Act, 1987.
    • For all others, a nominal fee is charged.

    Back2Basics: Free legal aid in India

    • Article 21 of the Constitution of India states, “No person shall be deprived of his life or personal liberty except according to procedure established by law”.
    • Hence ensuring legal aid to everyone is necessary for ensuring substantive equality.
    • Article 39A of the Constitution of India provides for free legal aid to the poor and weaker sections of the society, to promote justice on the basis of equal opportunity.
    • Articles 14 and 22(1) also make it obligatory for the State to ensure equality before the law and a legal system that promotes justice on a basis of equal opportunity to all.

  • Issues with the UAPA and role of judiciary

    Context

    Father Stan Swamy passed away at a private hospital in Mumbai on July 5. Fr. Swamy was arrested by the National Investigation Agency (NIA), under the Unlawful Activities (Prevention) Act (UAPA).

    How Supreme Court judgment leaves the scope for misuse of UAPA

    • The Supreme Court’s April 2019 decision in National Investigation Agency vs Zahoor Ahmad Shah Watali on the interpretation of the UAPA has affected all downstream decisions involving the statute.
    • This decision has created a new doctrine.
    • According to the decision, in considering bail applications under the UAPA, courts must presume every allegation made in the First Information Report to be correct.
    • Further, bail can now be obtained only if the accused produces material to contradict the prosecution.
    • In other words, the burden rests on the accused to disprove the allegations, which is virtually impossible in most cases.
    • The decision has essentially excluded the admissibility of evidence at the stage of bail.
    • By doing so, it has effectively excluded the Evidence Act itself, which arguably makes the decision unconstitutional.
    • Due to the Supreme Court judgment, High Courts have their hands tied, and must perforce refuse bail, as disproving the case is virtually impossible.
    • The Delhi High Court recently granted bail to three young activists arrested under UAPA in a conspiracy relating to the 2020 riots in Delhi.
    • The Supreme Court reportedly expressed surprise and gave the direction that the decision will “not to be treated as precedent by any court” to give similar reliefs.

    Misuse of the UAPA

    • With such high barriers of proof, it is now impossible for an accused to obtain bail, and is in fact a convenient tool to put a person behind bars indefinitely.
    • This is being abused by the government, police and prosecution liberally: now, all dissenters are routinely implicated under charges of sedition or criminal conspiracy and under the UAPA.
    •  In multiple instances, evidence is untenable, sometimes even arguably planted, and generally weak overall.
    • But as a consequence of UAPA being applied, the accused cannot even get bail.

    Way forward

    • If we want to prevent the misuse, the decision in the Watali case must be urgently reversed or diluted, otherwise, we run the risk of personal liberties being compromised very easily.

    Conclusion

    The provision of the act leaves the scope for misuse and therefore judiciary and legislature need to take steps to provide safeguards to prevent the misuse.

  • Fresh stirrings on federalism as a new politics

    Context

    • Several issues such as vaccine wars, debates over the Goods and Services Tax (GST), the fracas over West Bengal’s Chief Secretary, and the pushback against controversial regulations in Lakshadweep have once again brought into focus the idea of federalism.
    • The Dravida Munnetra Kazhagam, since taking office, has begun to craft an ideological narrative on State rights, by re-introducing the term Union into the public discourse and pushing back against increased fiscal centralisation

    Lack of political consensus among States for genuine federalism

    • Federalism in India has always had political relevance, but except for the States Reorganisation Act, federalism has rarely been an axis of political mobilisation.
    • Fiscal and administrative centralisation persisted despite nearly two decades of coalition governments.
    • Rather than deepen federalism, the contingencies of electoral politics have created significant impediments to creating a political consensus for genuine federalism.

    Three challenges in deepening federalism among States

    1) Tendency to equate federalism as against nationalism

    • The grammar of development and nationalism, which has mass electoral appeal is used to undermine federalism.
    • Slogans such as ‘one nation, one market’, ‘one nation, one ration card’, ‘one nation, one grid’ symbolise development and nationalism while leaving little space for federalism.
    • In this context, federalism as a principle risks being equated with regionalism and a narrow parochialism that is anti-development and anti-national.

    2) Lack of federal principles

    • Pratap Bhanu Mehta has pointed out that over the decades, federal principles have been bent in all kinds of ways to co-produce a political culture of flexible federalism.
    • Federalism in this rendition is reduced to a game of political upmanship and remains restricted to a partisan tussle.
    • Claimants of greater federalism often maintain silence on unilateral decisions that affect other States.
    • For instance, the downgrading of Jammu and Kashmir into a Union Territory, the notification of the NCT of Delhi (Amendment) Act, 2021 hardly witnessed protests by States that were not directly affected by these.

    3) Economic and governance divergence among states

    • Across all key indicators, southern (and western) States have outperformed much of northern and eastern India.
    • This has resulted in a greater divergence rather than expected convergence with growth.
    • This has created a context where collective action amongst States becomes difficult as poorer regions of India contribute far less to the economy but require greater fiscal resources to overcome their economic fragilities.
    • These emerging tensions were visible when the 15th Finance Commission (FC) was mandated to use the 2011 Census rather than the established practice of using the 1971 Census.
    • This, Southern states feared, risked penalising States that had successfully controlled population growth by reducing their share in the overall resource pool.
    •  With the impending delimitation exercise due in 2026, these tensions will only increase.

    Way forward

    • A politics for deepening federalism will need to overcome a nationalist rhetoric that pits federalism against nationalism and development.
    • Reclaim fiscal federalism:  Weak fiscal management has brought the Union government on the brink of what economist Rathin Roy has called a silent fiscal crisis.
    • The Union’s response has been to squeeze revenue from States by increasing cesses.
    • Its insistence on giving GST compensation to States as loans (after long delays) and increasing State shares in central schemes.
    • Against this backdrop, both sub-nationalist sentiments and the need to reclaim fiscal federalism create a political moment for a principled politics of federalism.
    • Sharing burden with poorer States: On the fiscal side, richer States must find a way of sharing the burden with the poorer States.
    • An inter-State platform that brings States together in a routine dialogue on matters of fiscal federalism could be the starting point for building trust and a common agenda.
    • Overcome isolationist tendency: The politics of regional identity is isolationist by its very nature.
    • An effort at collective political action for federalism based on identity concerns will have to overcome this risk.
    • Finally, beyond principles, a renewed politics of federalism is also an electoral necessity.

    Consider the question “Federalism in India has always had political relevance, but it has rarely been an axis of political mobilisation. What are the factors responsible for this? Suggest the way forward for the states to overcome these factors.” 

    Conclusion

    A renewed politics of federalism would require immense patience and maturity from regional parties. It remains to be seen whether they up to the task.

  • Water wars of Andhra Pradesh and Telangana

    An ongoing jala jagadam (fight over water resources), as it has been described by regional media, once again drew the police forces of Andhra Pradesh and Telangana into a tense standoff over release of water from the Nagarjuna Sagar reservoir.

    Krishna River Dispute

    • Both states have disagreements over the sharing of the Krishna River water continue to shape politics in the region.
    • AP alleges that Telangana has been drawing Krishna water from four projects — Jurala, Srisailam, Nagarjuna Sagar, and Pulichintala without approvals from the Krishna River Management Board (KRMB).
    • The KRMB an autonomous body that was set up after the bifurcation of the state, to manage and regulate the waters in the Krishna basin.

    What is the issue?

    • The water that is used for power generation, Andhra says, is being wasted by releasing it into the Bay of Bengal, even as farmers in the Krishna delta ayacut are yet to begin sowing of the kharif crop.
    • Telangana says it would continue with the hydropower generation to meet its requirements of power.
    • At the same time, it has taken strong exception to the irrigation projects of the Andhra Pradesh government, especially the Rayalaseema Lift Irrigation Project (RLIP), which it claims is illegal.
    • Telangana has called for a 50:50 allocation of water from the Krishna River.

    How is the water split between the states currently?

    • After Telangana was carved out of Andhra Pradesh, the two states agreed to split the water share 66:34 on an ad hoc basis until the Krishna Water Disputes Tribunal-2 decided the final allocation.

    Why is Telangana making the big hydel push?

    • The Kaleshwaram lift irrigation project that was inaugurated in 2019 requires a huge amount of power to draw water from the Godavari River.
    • Also, the Telangana government says that it needs hydel energy to power its Nettempadu, Bheema, Koilsagar and Kalwakurthy lift irrigation projects.
    • Despite protests by Andhra, the Telangana CM has chosen to operate all hydel power stations at full capacity because hydel power is cheaper, and imposes a smaller burden on the already stretched state budget.

    What is the solution to the disagreement, then?

    • Telangana wants the Krishna Water Disputes Tribunal-2 to permanently settle the water dispute.
    • In the meantime, it wants the KRMB to convene a full-fledged board meeting on a mutually agreed date this month to address its grievances against Andhra Pradesh.

    What political factors are at play behind the dispute?

    • The two CMs have maintained cordial relations and have even met on several occasions to discuss long-standing issues arising out of the bifurcation of the erstwhile state of Andhra Pradesh.
    • Critics have, however, alleged that the two CMs are fanning regional sentiments purely for political gains.

    Back2Basics: Interstate (River) Water Disputes (ISWDs)

    • These are a continuing challenge to federal water governance in India.
    • Rooted in constitutional, historico-geographical, and institutional ambiguities, they tend to become prolonged conflicts between the states that share river basins.
    • India has 25 major river basins, with most rivers flowing across states.
    • As river basins are shared resources, a coordinated approach between the states, with adequate involvement of the Centre, is necessary for the preservation, equitable distribution and sustainable utilization of river water.
    • Within India’s federal political structure, inter-state disputes require the involvement of the Union government for a federal solution at two levels: between the states involved, and between the Centre and the states.
    • The Interstate River Water Disputes Act, 1956 (IRWD Act) was enacted under Article 262 of the Constitution of India on the eve of reorganization of states to resolve the water disputes that would arise in the use, control and distribution of an interstate river or river valley.
    • Article 262 of the Indian Constitution provides a role for the Central government in adjudicating conflicts surrounding inter-state rivers that arise among the state/regional governments.

  • West Bengal to set up Legislative Council

    The West Bengal Assembly has passed a resolution to set up Legislative Council with a two-thirds majority.

    What is a State Legislative Council?

    • The SLC is the upper house in those states of India that have a bicameral state legislature; the lower house being the State Legislative Assembly.
    • As of Jan 2020, 6 out of 28 states have a State Legislative Council. These are Andhra Pradesh, Karnataka, Telangana, Maharashtra, Bihar, and Uttar Pradesh The latest state to have a council is Telangana.

    Why need another house?

    • The Legislative Council has three main functions: to represent the people, to legislate and to scrutinise the executive government as a ‘House of review’.
    • The Legislative Council provides an alternative and complementary system of representation to that of the Legislative Assembly.

    Creation and abolition

    • According to Article 169, the Parliament can create or abolish the SLC of a state if that state’s legislature passes a resolution for that with a special majority.
    • The existence of an SLC has proven politically controversial.
    • A number of states that have had their LCs abolished have subsequently requested its re-establishment; conversely, proposals for the re-establishment of the LC for a state have also met with opposition.

    Its composition

    • The size of the SLC cannot be more than one-third of the membership of the State Legislative Assembly.
    • However, its size cannot be less than 40 members.
    • These members elect the Chairman and Deputy Chairman from the Council.

    MLCs are chosen in the following manner:

    • One third are elected by the members of local bodies such as municipalities, gram panchayats, Panchayat samitis and district councils.
    • One third are elected by the members of the Legislative Assembly of the State from among the persons who are not members of the State Legislative Assembly.
    • One sixth are nominated by the Governor from persons having knowledge or practical experience in fields such as literature, science, arts, the co-operative movement and social services.
    • One twelfth are elected by graduates of three years’ standing residing in that state.
    • One twelfth are elected by teachers who had spent at least three years in teaching in educational institutions within the state not lower than secondary schools, including colleges and universities.

    Answer this PYQ in the comment box:

    Q.Consider the following statements:

    1. The Legislative Council of a State in India can be larger in size than half of the Legislative Assembly of that particular State.
    2. The Governor of a State nominates the Chairman of Legislative Council of that particular State.

    Which of the statements given above is/are correct?

    (a) Only 1

    (b) Only 2

    (c) Both 1 and 2

    (d) Neither 1 nor 2

    Powers and functions

    • The Constitution of India gives limited power to the State Legislative Council.
    • The State Legislative Council can neither form nor dissolve a state government.
    • The State Legislative Council also have no role in the passing of money bills.
    • But some of the powers it has is that the Chairman and Deputy Chairman of the State Legislative Council enjoy the same status as Cabinet Ministers in the state.

    Issues with LC

    • It was argued that a second House can help check hasty actions by the directly elected House, and also enable non-elected persons to contribute to the legislative process.
    • However, it was also felt that some of the poorer states could ill afford the extravagance of two Houses.
    • It has been pointed out that the Councils can be used to delay important legislation and to park leaders who have not been able to win an election.

  • Government creates Ministry of Cooperation

    The Union Government has created a new Ministry of Cooperation with an aim to strengthen the cooperative movement in the country.

    With the creation of the Ministry of Cooperation, there will now be a total of 41 central government ministries. Several of these ministries also have separate departments and organizations under them.

    What defines a Cooperative?

    • A cooperative is “an autonomous association of persons united voluntarily to meet their common economic, social, and cultural needs and aspirations through a jointly-owned enterprise”.
    • Cooperatives are democratically owned by their members, with each member having one vote in electing the board of directors.

    Ministry of Cooperation

    • The ministry has been created for realizing the vision of ‘sahkar se samriddhi’ (through cooperation to prosperity).
    • The NGO Sahakar Bharati, whose founder member Satish Kashinath Marathe is a part-time director on the RBI board, says it was the first to pitch for the creation of a separate ministry for the cooperative sector.
    • It will provide a separate administrative, legal and policy framework for strengthening the cooperative movement in the country.
    • It will help deepen cooperatives as a true people-based movement reaching up to the grassroots.
    • The ministry will work to streamline processes for ‘ease of doing business’ for cooperatives and enable the development of multi-state cooperatives (MSCS).

    Why need such Ministry?

    • In our country, a Co-operative based economic development model is very relevant where each member works with a spirit of responsibility.
    • This creation has signalled its deep commitment to community-based developmental partnerships.

    Second new ministry created so far

    • The Ministry of Cooperation is the second ministry to be created since 2019 after the Modi government came to power for the second time.
    • Soon after taking charge, the government had created the Jal Shakti ministry.
    • However, it was not altogether new as the Ministry of Cooperation.
    • It was created by integrating two existing ministries dealing with water — Water Resources, River Development and Ganga Rejuvenation, and Drinking Water & Sanitation ministry.

  • Draft Anti-trafficking Bill 2021

    The Ministry of Women and Child Welfare has invited suggestions and comments for its Trafficking in Persons (Prevention, Care and Rehabilitation) Bill, 2021 which it has released.

    A re-attempted legislation

    • A previous draft had been introduced in 2018 and had been passed by Lok Sabha despite stiff opposition from both parliamentarians as well as experts.
    • It was later never introduced in Rajya Sabha.
    • Experts say that nearly all the concerns raised in 2018 have been addressed in this new draft Bill.

    Draft Anti-trafficking Bill 2021

    The Bill has increased the scope of the nature of offences of trafficking as well as the kind of victims of these offences, with stringent penalties including life imprisonment, and even the death penalty in cases of an extreme nature.

    Types of offenders

    • The scope of the Bill vis offenders will also include defence personnel and government servants, doctors and paramedical staff or anyone in a position of authority.

    Penalty

    • In most cases of child trafficking, especially in the case of the trafficking of more than one child, the penalty is now life imprisonment.
    • While the penalty will hold a minimum of seven years which can go up to an imprisonment of 10 years and a fine of Rs 5 lakh.
    • In certain cases, even the death penalty can be sought.

    Definition of exploitation

    • Exploitation has been defined to include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation including pornography.
    • It also includes any act of physical exploitation, forced labour or services, slavery or practices similar to slavery, servitude or forced removal of organs, illegal clinical drug trials or illegal bio-medical research.

    Victims covered

    • The Bill also extends beyond the protection of women and children as victims to now include transgenders as well as any person who may be a victim of trafficking.
    • It also does away with the provision that a victim necessarily needs to be transported from one place to another to be defined as a victim.

    Investigation Agency

    • The National Investigation Agency (NIA) shall act as the national investigating and coordinating agency responsible for the prevention and combating of trafficking in persons.

  • Issues in Ladakh after abolition of Art. 370

    When Jammu and Kashmir were bifurcated into two UTs, Ladakh was seen welcoming the reorganization. However, different demands are coming from its two districts of Ladakh, Leh and Kargil.

    Leh and Kargil, not alike

    • The leaders from Kargil demanded that the district should remain part of J&K.
    • The Leh-based Ladakh Buddhist Association has put forth its demand for an autonomous hill council under the Sixth Schedule, modelled on the lines of the Bodoland Territorial Council in Assam.
    • But what Leh leaders did not bargain for was the complete loss of legislative powers.
    • Earlier, the two districts each sent four representatives to the J&K legislature. After the changes, they were down to one legislator — their sole MP— with all powers vested in the UT bureaucracy.
    • Unlike the UT of J&K, Ladakh was a UT without an assembly.

    What are their concerns?

    • What both Ladakh districts fear is the alienation of land, loss of identity, culture, language, and change in demography.
    • They fear that it will follow their political disempowerment.

    Hill Development Councils

    • Leh and Kargil have separate Autonomous Hill Development Councils, set up under the Ladakh Autonomous Hill Development Councils Act, 1997.
    • However, the AHDCs have no legislative powers.
    • The councils are elected and have executive powers over the allotment, use and occupation of land vested in them by the Centre, and the powers to collect some local taxes, such as parking fees, taxes on shops etc.
    • But the real powers are now wielded by the UT administration, which is seen as even more remote than the erstwhile state government of J&K.

    What is the sixth schedule?

    • The Sixth Schedule is a provision of Article 244(A) of the Constitution, originally meant for the creation of autonomous tribal regions in Assam, Meghalaya, Mizoram and Tripura.
    • Hill councils under this provision have legislative powers.

    Evolving demands

    • But with no progress on Leh’s demand for Sixth Schedule protections, the Leh leadership has now upped its demands.
    • Other issues under discussion are protections for language, culture, land and jobs, plus a long-standing demand for a route between Kargil and Skardu in territory under Pakistan in Gilgit- Baltistan.

  • How the GNCTD (Amendment) Act affects functioning of Delhi Assembly

    The article highlights the implications of the Government of National Capital Territory of Delhi (GNCTD)(Amendment) Act, 2021 on functioning of Assembly and its committees.

    Context

    The Government of National Capital Territory of Delhi (GNCTD)(Amendment) Act, 2021 has been criticised as a retrograde law. However, what deserves equal attention is the Act’s assault on the functioning of Delhi’s Legislative Assembly.

    Background of GNCTD Act

    • The GNCTD Act was enacted in 1992.
    • Under the Act, Delhi Legislative Assembly was given the power to regulate its own procedure, as well as the conduct of its business.
    • This sought to realise a delicate balance reflecting Delhi’s unique constitutional position: neither full state nor a centrally governed Union Territory.

    How amendment affects functioning of Assembly

    • Its standards of procedure and conduct of business have been firmly tethered to that of the Lok Sabha, depriving Delhi’s elected MLAs of an effective say in how their Assembly should be run.
    • The Amending Act prohibits the Assembly from making any rule enabling either itself or its committees to consider any issue concerned with “the day-to-day administration of the capital” or “conduct inquiries in relation to administrative decisions”.
    • The most significant impact of this shall be on the exercise of free speech in the Assembly and its committees.
    • The amendment impeded the Assembly from performing its most basic legislative function — that of holding the executive to account by restricting its ability to freely discuss matters happening in the capital.

    Impact on committees

    • The deliberations and inputs of committees often pave the way for intelligent legislative action.
    • In a way, they act as the eyes and ears for the whole House, which has neither the time nor the expertise to scrutinise issues in depth.
    • It would be impossible for committees to perform this function without the power to conduct inquiries.
    • Pre-emptively injunct a committee from conducting an inquiry “in relation to the administrative decisions” (an extremely broad exception) completely negates the ability of committees to function effectively as the Assembly’s advisors and agents.
    • The quality of legislative work emanating from the Assembly is thus ultimately bound to suffer.

    Consider the question “What are the reasons for frequent disputes between Delhi government and the Lt. Governor? Would the Government of National Capital Territory of Delhi (GNCTD)(Amendment) Act, 2021 succeed in ending that trend?” 

    Conclusion

    The amendment deprive the Delhi Assmbly of its very basic functions and render it a ‘legislature’ in name only. Surely, Delhi’s voters deserve better than that. The Government need to reconsider the provisions of the amendment act.