💥Join UPSC 2027,2028 Mentorship (August Batch) + XFactor Notes & Microthemes PDF
Talk to Mentor

Civilsdaily

Login

Subject: Polity

  • Rajya Sabha passes MTP Bill, 2020

    The Rajya Sabha has passed the Medical Termination of Pregnancy (Amendment) Bill, 2020 that increases the time period within which an abortion may be carried out.

    What are the differing opinions with regards to the Termination of Pregnancy (MTP) Amendment Bill, 2020? Discuss.

    MTP Bill, 2020

    The MTP Bill was passed in Lok Sabha in March 2020. Its salient features included:

    • Proposing requirement for the opinion of one provider for termination of pregnancy, up to 20 weeks of gestation and introducing the requirement of the opinion of two providers for termination of pregnancy of 20-24 weeks of gestation.
    • Enhancing the upper gestation limit from 20 to 24 weeks for special categories of women which will be defined in the amendments to the MTP Rules and would include ‘vulnerable women including survivors of rape, victims of incest and other vulnerable women (like differently-abled women, Minors) etc.
    • Upper gestation limit not to apply in cases of substantial foetal abnormalities diagnosed by Medical Board. The composition, functions and other details of the Medical Board to be prescribed subsequently in Rules under the Act.
    • Anonymity of the person: The name and other particulars of a woman whose pregnancy has been terminated shall not be revealed except to a person authorised in any law for the time being in force.

    Benefits sought with the bill

    • It is seen as a step towards the safety and well-being of the women and many women will be benefitted from this.
    • Recently several petitions were received by the Courts seeking permission for aborting pregnancies at a gestational age beyond the present permissible limit on grounds of foetal abnormalities or pregnancies due to sexual violence faced by women.
    • The proposed increase in gestational age will ensure dignity, autonomy, confidentiality and justice for women who need to terminate the pregnancy.

    Flaws in the bill

    • The Bill allows abortion after 24 weeks only in cases where a Medical Board diagnoses substantial foetal abnormalities.
    • This implies that for a case requiring abortion due to rape, that exceeds 24-weeks, the only recourse remains through a Writ Petition.
    • The Bill does not specify the categories of women who may terminate pregnancies between 20-24 weeks and leaves it to be prescribed through Rules.
    • The Act (and the Bill) requires an abortion to be performed only by doctors with a specialization in gynaecology or obstetrics.
    • As there is a 75% shortage of such doctors in community health centres in rural areas, pregnant women may continue to find it difficult to access facilities for safe abortions.

    Key Issues and Analysis

    • There are differing opinions with regard to allowing abortions. One opinion is that terminating a pregnancy is the choice of the pregnant woman and a part of her reproductive rights.
    • The other is that the state has an obligation to protect life, and hence should provide for the protection of the foetus.
    • Across the world, countries set varying conditions and time limits for allowing abortions, based on foetal health, and risk to the pregnant woman.
    • Several Writ Petitions have been filed by women seeking permission to abort pregnancies beyond 20-weeks due to foetal abnormalities or rape.

  • Anti-defection law: when a nominated MP loses RS membership

    A nominated MP had to resign from Rajya Sabha before the completion of his term due to the Anti-defection law.

    The story of Nominated Members

    • During the making of the Constitution, members of the Constituent Assembly felt that Rajya Sabha should have members who might not win elections but will bring knowledge and expertise to discussions.
    • It led to Rajya Sabha having 12 nominated members from different walks of life.
    • The broad criterion for their nomination is that they should have distinguished themselves in fields like literature, science, art, and social service.
    • The President nominates such individuals as recommended by the Centre.
    • Nominated members have the same rights and privileges as elected members, with one notable difference — they cannot vote in the election of the President.

    Anti-defection law

    • In 1985 the Tenth Schedule, popularly known as the anti-defection law, was added to the Constitution.
    • But its enactment was catalyzed by the political instability after the general elections of 1967.
    • This was the time when multiple state governments were toppled after MLAs changed their political loyalties.
    • The purpose of the 1985 Constitution Amendment was to bring stability to governments by deterring MPs and MLAs from changing their political parties on whose ticket they were elected.
    • The penalty for shifting political loyalties is the loss of parliamentary membership and a bar on becoming a minister.

    Try this PYQ:

    Consider the following statements:

    1. The Chairman and the Deputy Chairman of the Rajya Sabha are not the members of that House.
    2. While the nominated members of the two Houses of the Parliament have no voting right in the presidential election, they have the right to vote in the election of the Vice President.

    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

    What invites defection?

    The law covers three types of scenarios with respect to MP switching parties.

    1. The first is when a member elected on the ticket of a political party “voluntarily gives up” membership of such a party or votes in the House contrary to the wishes of the party.
    2. The second possibility is when an MP who has won his or her seat as an independent candidate after the election joins a political party. In both these instances, the MP lose the seat in the House on changing (or joining) a party.
    3. The third scenario relates to nominated MPs. In their case, the law specifies that within six months of being nominated to the House, they can choose to join a political party.

    Why is a nominated member given 6month time?

    • The time is given so that if a nominated MP is not a member of a political party, they can decide to join one if they want.
    • But if they don’t join a political party during the first six months of their tenure, and join a party thereafter, then they lose their seat in Parliament.

  • National Capital Territory of Delhi (Amendment) Bill, 2021

    The Ministry of Home Affairs (MHA) moved the NCT of Delhi (Amendment) Bill, 2021 to the Lok Sabha where it proposed that “government” in Delhi means the Lieutenant Governor of Delhi.

    What is the news?

    • The Bill gives discretionary powers to the L-G of Delhi even in matters where the Legislative Assembly of Delhi is empowered to make laws.
    • The Delhi state govt has criticized the bill saying that it seeks to drastically curtail powers of the elected government”, which is “against” the Supreme Court judgment of 2018.

    NCT of Delhi (Amendment) Bill, 2021

    • Among the major proposed amendments, one makes it explicitly clear that the term “government” in any law made by the Legislative Assembly shall mean the L-G.
    • This, essentially, gives effect to the former L-G 2015 assertion that “Government means the Lieutenant Governor of the NCT of Delhi appointed by the President under Article 239 and designated as such under Article 239 AA of the Constitution”.
    • The Bill adds that the L-G’s opinion shall be obtained before the government takes any executive action based on decisions taken by the Cabinet or any individual minister.

    What purpose does the 1991 Act serve?

    • Delhi’s current status as a UT with a Legislative Assembly is an outcome of the 69th Amendment Act through which Articles 239AA and 239BB were introduced in the Constitution.
    • The Act was passed simultaneously to supplement the constitutional provisions relating to the Assembly and the Council of Ministers in the national capital.
    • For all practical purposes, it outlined the powers of the Assembly, the discretionary powers enjoyed by the L-G, and the duties of the CM with respect to the need to furnish information to the L-G.

    What is the 2018 Supreme Court Verdict?

    • In its 2018 verdict, the five-judge Bench had held that the LG’s concurrence is not required on issues other than police, public order and land.
    • It had added that decisions of the Council of Ministers will, however, have to be communicated to the LG.
    • The L-G was bound by the aid and advice if the council of ministers, it had said.
    • The Bench of then CJI status of the LG of Delhi is not that of a Governor of a State, rather he remains an Administrator, in a limited sense, working with the designation of Lieutenant Governor”.
    • It had also pointed out that the elected government must keep in mind that Delhi is not a state.

    Consider the question “What are the parameters laid down by the Supreme Court in the Government of NCT of Delhi vs. Union of India (2018) to avoid the conflict between Lt. Governor and the Delhi Government? Also examine the scope of referring any matter to the consideration of the President by the Lt. Governor.”

    What will change if the amendments are cleared by Parliament?

    • Encouraged by the Supreme Court verdict, the elected government had stopped sending files on executive matters to the L-G before the implementation of any decision.
    • It has been keeping the L-G abreast of all administrative developments, but not necessarily before implementing or executing any decision.
    • But the amendment, if cleared, will force the elected government to take the L-G’s advice before taking any action on any cabinet decision.
    • The Bill seeks to bar the Assembly or its committees from making rules to take up matters concerning day-to-day administration, or to conduct inquiries in relation to administrative decisions.

    Does the L-G enjoy no discretionary power under the current arrangement?

    • The L-G does have the power to refer any matter, over which there is a disagreement with the elected government, to the President under Article 239AA (4).
    • The Delhi Law Secretary had in 2019 written in an internal memo that the elected government cannot use the SC verdict to keep the L-G in the dark about its decisions.
    • But the SC had also categorically pointed out that the L-G should not act in a mechanical manner without due application of mind so as to refer every decision of the CM to the President.

    What are the state government’s fears?

    • From 2015 to 2018, the government was engaged in a constant battle with the Centre over policy decisions and the powers of the L-G with the elected government.
    • The SC judgment gave the Delhi govt a freer hand in terms of policy decisions.
    • The government insiders have maintained that it was because of the judgment that the government was able to clear policy decisions like giving free power to those using under 200 units, free bus rides for women.
    • The amendments will have far-reaching implications — beyond just the tussle between any political parties.

    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 the 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 the 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.

  • Bureaucrats cannot be State Election Commissioners: SC

    The Supreme Court gas held that independent persons and not bureaucrats should be appointed State Election Commissioners.

    No bureaucrats in SEC

    • The judgment came on an appeal against an order of the Bombay High Court which had set aside the election notification issued by the Goa State Election Commission in some municipalities.
    • Justice F. Nariman, in a judgment, said giving government employees the additional charge of State Election Commissioners is a “mockery of the Constitution”.
    • It said government employees holding the post of State Election Commissioners as additional charge should give up the post.
    • The Supreme Court said its direction should be followed strictly.

    Why such a move?

    • Under the constitutional mandate, it is the duty of the State to not interfere with the functioning of the State Election Commission.
    • The independence of Election Commissions cannot be compromised at any cost, the Bench said.

    State Election Commission

    • Under the 73rd and 74th constitutional amendment acts, State Election Commissions were created for every state to conduct elections to panchayats and municipalities.
    • The SECs came into as envisaged in Articles 243K and 243ZA of the Constitution of India.
    • The above Articles provide that the superintendence, direction and control of the preparation of electoral rolls for, and the Conduct of all elections to the Panchayats and Municipalities shall vest in the SEC.
    • The Constitution itself has facilitated provision for smooth, free and fair, regular elections to the Local bodies and has, therefore, entrusted the SEC with the responsibility for holding such elections.
    • In the domain of the elections to the local bodies, the SEC functions independently and has the same powers and duties as that of the Election Commission of India.

    Try this PYQ:

    Q.The Constitution (Seventy-Third Amendment) Act, 1992, which aims at promoting the Panchayati Raj Institutions in the country, provides for which of the following?

    1. Constitution of District Planning Committees.
    2. State Election Commissions to conduct all panchayat elections.
    3. Establishment of State Finance Commissions.

    Select the correct answer using the codes given below:

    (a) Only 1

    (b) 1 and 2 only

    (c) 2 and 3 only

    (d) 1, 2 and 3

    The Election Commissioner

    • The State Election Commissioner is appointed by the Governor.
    • It has the status, salary and allowance of a Judge of a High Court and cannot be removed from office except in the like manner and on the like grounds as a Judge of a High Court.
    • The Election Commissioner is also the Chairman of the Delimitation Commission.

    Its duties

    • The first and foremost duty of the SEC is to prepare the elector rolls of Panchayats, Municipalities and Municipal Corporation and conduct their elections.

    In addition to the above functions, the State Election Commission has also the following functions:

    1. Conduct of elections to the offices of the Mayor/Chairman/President/Deputy Mayor/Vice Chairman/Vice President and the no-confidence motion against them.
    2. Conduct of the Elections to various Standing Committees and their Chairpersons
    3. Determination of disqualification of elected members/Councilors.
    4. Determination of disqualification of elected members on the ground of defection.

    Back2Basics: Election Commission of India (ECI)

    • ECI is an autonomous and permanent constitutional authority responsible for administering election processes in India at the national and state level.
    • The body administers elections to the Lok Sabha, Rajya Sabha, State Legislative Assemblies, State Legislative Councils and the offices of the President and Vice President of the country.
    • The EC operates under the authority of the Constitution per Article 324 and subsequently enacted the Representation of the People Act.
    • The commission has the powers under the Constitution, to act in an appropriate manner when the enacted laws make insufficient provisions to deal with a given situation in the conduct of an election.
    • Being a constitutional authority, EC is amongst the few institutions which function with both autonomy and freedom, along with the country’s higher judiciary, the UPSC and the CAG.

  • Mandal 2.0 Moment: SC seeks States’ views on 50% Cap on Quota

    The Supreme Court sought responses from all states on whether the 50% ceiling limit on reservation needs to be reconsidered.

    Debate: The 50% Cap

    • The ceiling was imposed by a nine-judge Constitution Bench in the Indira Sawhney case in 1992, wherein the court strictly held that reservation cannot exceed 50%.
    • However, the bench did indicate that in exceptional circumstances, reservation could be extended.

    A case for Maratha Reservation

    • The court is set to examine whether the Maharashtra State Backward Classes Commission had made up a case of “extraordinary circumstances” of deprivation suffered by the Maratha community.
    • In fact, the Bombay High Court had, in June 2019, reduced the quantum of reservation for Marathas from the 16% recommended by the Gaikwad Commission to 12% in education and 13% in employment.
    • The ruling was challenged before a Supreme Court Bench, which referred it to a larger Constitution Bench.

    Challenges to the Maratha quota

    There are two main constitutional questions for the court to consider in the challenge to the Martha quota law.

    1. The first is whether states can declare a particular caste to be a socially and educationally backward class.
    2. The second is whether states can breach the 50% ceiling for “vertical quotas” set by the Supreme Court.

    What is the Indra Sawhney Case?

    • In 1979, the Second Backward Classes Commission (Mandal Commission) was set up to determine the criteria for defining the socially and educationally backward classes.
    • The Mandal report identified 52% of the population at that time as “Socially and Economically Backward Classes” (SEBCs) and recommended 27% reservation for SEBCs in addition to the previously existing 22.5% reservation for SC/STs.
    • In 1990, when the V P Singh led-government set out to implement the Mandal report, it was challenged in court amidst widespread protests against the move.
    • The case came up before a nine-judge Bench and a 6:3 verdict was delivered in 1992.

    What did the verdict say?

    • The court upheld the office memorandums that essentially implemented the Mandal report.
    • The majority opinion said the executive orders mandating 27% reservation for backward castes were valid.
    • It held that the reservation was made not just on the basis of caste, even if it appears so, but on the basis of objective evaluation of social and educational backwardness of classes.
    • The inclusion in the list of Backward Classes is very much warranted by Article 15(4).

    Precedents set by the judgment

    The landmark Indra Sawhney ruling set two important precedents.

    1. The court said that the criteria for a group to qualify for reservation are “social and educational backwardness”.
    2. It also reiterated the 50% limit to vertical quotas it had set out earlier. The court said this 50% limit will apply — unless in “exceptional circumstances”.

    How does the Maratha reservation relate to the Indra Sawhney case?

    • Based on the 102nd Amendment to the Constitution, which gives the President powers to notify backward classes, the court will have to look into whether states have similar powers.
    • Also, since this power flows from the Constitution, whether the President is still required to comply with the criteria set by the Supreme Court in the Mandal case.
    • The relevance of the Indra Sawhney criteria is also under question in another case in which the validity of the 103rd Amendment has been challenged.
    • The 103rd Amendment, passed in 2019, provides for 10% reservation in government jobs and educational institutions for the economically weaker section in the unreserved category.
    • Since the Indra Sawhney verdict gives a pass to a breach of the 50% quota rule only in exceptional circumstances, the court will have to test if the Maharashtra law qualifies to be an exception.

    Rising aspirations for backwardness!

    Similar to the Maratha issue are the cases of Patels in Gujarat, Jats in Haryana, and Kapus in Andhra Pradesh.

    Have any other states breached the 50% ceiling before?

    • States have breached the 50% ceiling before and intend to bring more reservation. A notable example is in Tamil Nadu.
    • Its Act of 1993, reserves 69% of the seats in colleges and jobs in the state government.
    • However, this was done by amending the Constitution, to place the law in the Ninth Schedule after the Indra Sawhney judgment.

    How does the Ninth Schedule come to the picture?

    • The Ninth Schedule provides the law with a “safe harbour” from judicial review under Article 31B of the Constitution.
    • Laws placed in the Ninth Schedule cannot be challenged for reasons of violating any fundamental right protected under the Constitution.
    • However, when the Tamil Nadu law was challenged in 2007 (I R Coelho v State of Tamil Nadu), the Supreme Court ruled that while laws placed under Ninth Schedule cannot be challenged on the grounds of violation of fundamental rights.
    • However, they can be challenged on the ground that it violates the basic structure of the Constitution.
    • A later Bench was to decide whether the Tamil Nadu law itself (breaching the 50% ceiling) violates basic structure, based on the I R Coelho verdict. The Bench has not yet been set up.

  • [pib] India’s rebuttal to Freedom House Report

    The Freedom House report titled “Democracy under Siege” in which it has been claimed that India’s status as a free country has declined to “partly free”, is misleading, incorrect, and misplaced.

    The US who claims to be the champion of Human Rights has turned another sermon to India through its Freedom House Report. This report presents an inherently flawed and biased analysis of Indian democracy.

    Rebuttal to specific points

    (1) Discriminatory policies against Minorities

    • The GoI treats all its citizens with equality as enshrined under the Constitution of the country and all laws are applied without discrimination.
    • Due process of law is followed in matters relating to law and order, irrespective of the identity of the alleged instigator.
    • With specific reference to the North East Delhi riots in February 2020, the law enforcement machinery acted swiftly in an impartial and fair manner.
    • Proportionate and appropriate actions were taken to control the situation.
    • Necessary legal and preventive actions were taken by the law enforcement machinery on all complaints/calls received, as per law and procedures.

    (2) Use of Sedition Law

    • “Public Order’ and ‘Police’ are State subjects under India’s federal structure of governance.
    • The responsibility of maintaining law and order, including investigation, registration, and prosecution of crimes, protection of life and property, etc., rests primarily with the concerned State governments.
    • Therefore, measures as deemed fit are taken by law enforcement authorities to preserve public order.

    (3) Government response to COVID-19 through Lockdown

    • Between March 16 to 23, most State governments/UT resorted to partial or full Lockdown in their respective State/ UT based on their assessment of the COVID-19 situation.
    • Any mass movement of people would have spread the disease rapidly throughout the country.
    • The government was fully conscious that during the period of an inevitable Lockdown, people should not face undue distress.
    • India has, on a per capita basis, registered one of the lowest rates of active COVID-19 cases and COVID-19 related deaths globally.

    (4) Government response on human rights organizations

    • The Indian Constitution provides for adequate safeguards under various statutes, including the Protection of Human Rights Act 1993 for ensuring the protection of human rights.
    • This Act provides for the constitution of an NHRC and SHRC in the States for better protection of human rights and for matters connected to this subject.

    (5) Intimidation of academics and journalists and crackdown on expressions of dissent by media

    • The Indian Constitution provides for freedom of expression under Article 19. Discussion, debate, and dissent are a part of Indian democracy.
    • The GoI attaches the highest importance to the safety and security of all residents of the country, including journalists.
    • It has issued a special advisory to States and UTs on the safety of journalists requesting them to strictly enforce the law to ensure the safety and security of media persons.

    (6) Internet shutdowns

    • Temporary suspension of the telecom services, including the internet, is governed under the provisions of the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017.
    • Hence, the temporary suspension of telecom/internet services is resorted to with the over-arching objective of maintaining law and order under strict safeguards.

    (7) FCRA amendment leading to freezing of Amnesty International’s assets has led to declining in ranking

    • Amnesty International had received permission under the FCRA Act only once and that too 20 years ago.
    • Since then Amnesty International, despite its repeated applications, has been denied FCRA approval by successive governments since as per law it is not eligible to get such approval.
    • However, in order to circumvent the FCRA regulations, Amnesty U.K. remitted large amounts of money to four entities registered in India, by misclassifying the remittance as FDI.
    • A significant amount of foreign money was also remitted to Amnesty India without MHA’s approval under FCRA.
    • This malafide rerouting of money was in contravention of extant legal provisions.
    • Owing to these illegal practices of Amnesty, the previous government had also rejected the repeated applications of Amnesty to receive funds from overseas.

  • The perils of domicile-based preferential policies

    The Haryana government is considering a Bill that provides for 75 per cent reservation to the residents of the state. This article discusses the challenge such policies poses.

    Domicile-based preferential policies on rise

    • The Haryana government’s State Employment of Local Candidates Bill 2020 reserves 75 per cent of new jobs in private establishments for Haryana residents.
    • Andhra Pradesh has mandated 75 per cent reservation for locals.
    • Karnataka is considering reserving all blue-collar jobs for locals.
    • Madhya Pradesh has announced that public employment in the state be reserved for state residents.

    Constitutionality of such policies

    • The Constitution prohibits discrimination based on place of birth.
    • The right to move freely in the country and reside and settle in any part of it, the right to carry out any trade or profession, are all established rights.
    • Article 16(3) does, in principle, enable Parliament [ not state legislature] to provide for domicile-based preferential treatment in public employment.

    Judicial scrutiny

    • The constitutionality of domicile-based employment preferences (unlike preferences in education) has never been frontally tested.
    • But almost all the existing case law that impinges on the matter clearly indicates such laws are unconstitutional.
    • In Pradeep Jain vs Union of India, the court had indicated this direction; in Kailash Chandra Sharma vs State of Rajasthan, the court had warned against parochialism.
    • The Andhra Pradesh Bill is sub judice in the high court.

    Issues with the policies

    • The Supreme Court will hopefully rule on the constitutionality of the  Haryana government’s Bill.
    • But the Bill has ramifications beyond constitutionality.
    • First, because this kind of constitutional cynicism is now not an exception but has become a contagion.
    • Second, even if the Bill is struck down, such a high wire act is meant to fuel the flames of localism.
    • Third, the Bill now exposes the bad faith of political parties on private sector reservation more generally.
    • Fourth, these bills will open up a new form of competitive ethnic politics.
    • It is odd that a state like Haryana which has benefitted from being part of a cosmopolitan zone like NCR should unilaterally impose reservations.
    • Fifth, there is patent class discrimination: If you are rich, privileged or highly skilled, there are no entry barriers in accessing any labour market.
    • But we shall put entry barriers on lower skilled migrants; our own internal version of an H-1B visa.
    • The greatest damage the Bill does is to increase the discretionary power of the state, almost taking us back to a license permit raj, where companies will have to bargain, or worse, bribe the state for exemptions.
    • This is the antithesis of regulatory reform.

    Consider the question “There have been growing tendencies among the states to pursue domicile-based preferential policies. What are the issues related to such policies?”

    Conclusion

    But the fact that states feel the need to enact these bills is an indictment of the economy as a whole: They suggest a pessimism about both education and job creation. So we have returned to a world of zero sum thinking.

  • Haryana’s new Job Quota Rule

    The Haryana government has notified a new law that requires 75% of private-sector jobs in the state, up to a specified salary slab, reserved for a local candidate.

    Haryana’s move has renewed the debate on whether the government force should private companies to adopt its reservation policy in jobs. While constitutional guarantees for reservation have been limited to public employment, attempts to extend it to private sector are not new either.

    Haryana Quota Rule

    • The Haryana State Employment of Local Candidates Bill, 2020 requires private companies to set aside for domiciles 75% of jobs up to a monthly salary of Rs 50,000 or as may be notified by the government.
    • The law is applicable to all companies, societies, trusts, limited liability partnership firms, partnership firms and any person employing 10 or more persons.

    Other states with such laws

    • In July 2019, the Andhra Pradesh government had passed a similar law, which was challenged in court.
    • The Andhra Pradesh High Court had made a prima facie observation that the move might be unconstitutional, but the challenge is yet to be heard on merits.

    What are the legal issues in such laws?

    Two big legal questions come up.

    (1) Question of domicile reservation

    • While domicile quotas in education are fairly common, courts have been reluctant in expanding this to public employment.
    • Last year, the MP government decided to reserve all government jobs for “children of the state”, raising questions relating to the fundamental right to equality of citizens.

    (2) Right to Equality

    • The second question, which is more contentious, is the issue of forcing the private sector to comply with reservations in employment.
    • For mandating reservation in public employment, the state draws its power from Article 16(4) of the Constitution.
    • It says that the right to equality in public employment does not prevent the state from “making any provision for the reservation of appointments or posts in favour of any backward class of citizens which is not adequately represented in the services under the State.
    • The Constitution has no manifest provision for private employment from which the state draws the power to make laws mandating reservation.

    Rationale in bringing such laws

    Providing reservation in public employment is one of the many ways through which the state endeavours to ensure equal opportunity for all citizens.

    • With public sector jobs constituting only a minuscule proportion of all jobs, legislators have talked about extending the legal protections to the private sector.
    • They aim to really achieve the constitutional mandate of equality for all citizens.
    • One argument often made in favour of reservation for private jobs is that private industries use public infrastructure in many ways.
    • A similar argument was made in requiring private schools to comply with the Right to Education Act, which the Supreme Court also upheld.

    Global precedences

    • Affirmative action is adopted in many countries in the context of race and gender.
    • In the US, there is no statutory requirement for employers to have quotas.
    • Courts can order monetary damages and injunctive relief, including “such affirmative action as may be appropriate”, for victims of discrimination.
    • The Employment Equity Act in Canada also protects minority groups, especially aboriginals from discrimination in federally regulated industries, even in the private sector.

    Talk to senior mentors from Civilsdaily: Fill Samanvaya form for IAS 2021 and IAS 2022. We’ll call you within 24 hours for a detailed in-depth discussion.

    Civilsdaily Samanvaya 1-On-1 Mentorship Form

    Field will not be visible to web visitor

    Yes I want Mentorship

  • Freedom in the World Report, 2021

    Freedom in the World 2020: A Leaderless Struggle for Democracy

    US-based human rights watchdog Freedom House has accused the present government of driving India toward authoritarianism with a lockdown scapegoating of minorities and a crackdown on critics, and downgraded India’s status from ‘Free’ to ‘Partly Free’, in its annual report.

    Freedom in the World Report

    • It is Freedom House’s flagship annual report, assessing the condition of political rights and civil liberties around the world.
    • It is composed of numerical ratings and supporting descriptive texts for 195 countries and 15 territories.
    • The report has been published since 1973, allowing Freedom House to track global trends in freedom over more than 40 years.
    • Freedom House, which is largely funded through U.S. government grants, has been tracking the course of democracy since 1941.

    What did the report say?

    Political and civil rights

    • India’s freedom score, calculated using indicators of political rights and civil liberties, dropped four points to 67 this year, pulling the country down into the ‘Partly Free’ category.
    • India appears to have abandoned its potential to serve as a global democratic leader, elevating narrow nationalist interests at the expense of its founding values of inclusion and equal rights for all.

    Reference to Kashmir

    • In a year when social media censorship has been hotly seated, while the government shut down Internet connectivity in Kashmir as well as on Delhi’s borders, India’s Internet freedom score dropped to just 51.

    Crackdown on protesters

    • Last year, the government intensified its crackdown on protesters opposed to a discriminatory citizenship law and arrested dozens of journalists who aired criticism of the official pandemic response.

    Judicial Independence

    • It noted that judicial independence had also come under strain.
    • It pointed to the case of a Delhi HC judge who was transferred immediately after reprimanding the police for taking no action during riots in the capital that leftover 50 people dead.

    Religious freedom

    • Minorities were disproportionately blamed for the spread of the virus and faced attacks by vigilante mobs.
    • Uttar Pradesh’s law prohibiting forced religious conversion through interfaith marriage was also listed as a concern.

    Rising Authoritarianism

    • Rather than serving as a champion of democratic practice and a counterweight to authoritarian influence from countries such as China, the government is tragically driving India itself toward authoritarianism, the report stated.

  • Issues with Master of the Roaster power of CJI

    CJI’s power as Master of Roaster and issues with it

    • The Supreme Court recently closed the proceedings enquiring into a conspiracy to threaten the independence of the judiciary on the basis of sexual harassment allegations against the former CJI.
    • The singular power of the CJI as the Master of the Roster – i.e., the vests exclusive discretion in the Chief Justice to constitute benches and allocate cases.
    • While the CJI’s other powers such as recommending appointments to constitutional courts are shared with other senior judges, the power of Master of the Roster is enjoyed without scrutiny.
    • This power enabled Justice Gogoi to institute suo motu proceedings despite being an accused; label the case as a matter of judicial independence; and preside over it.
    • This power lay at the heart of the controversy surrounding the proceedings the Court has now closed.

    Implications for independence of judiciary

    • From the standpoint of judicial independence, the Master of the Roster power makes the CJI’s office a high stakes one.
    • It makes the CJI the sole point of defence of the Court against executive interference.
    • However, this has a flip side.
    • With the CJI as the sole Master of the Roster, any executive seeking to influence the Supreme Court needs only a pliant CJI.
    • Yet, the Supreme Court has been reluctant to dilute this power.
    • In Asok Pande v. Supreme Court of India (2018), a three-judge bench of the Court held that Master of the Roster is the CJI’s exclusive power.
    • Thereafter, a two-judge bench in Shanti Bhushan v. Supreme Court of India (2018) rejected the plea that the Master of the Roster should be interpreted as the collegium.

    Need for the reforms

    • The collegium system has failed to keep executive interferences at bay from the Supreme Court.
    • This is for two reasons:
    • First, as Justice Gogoi’s case shows, there is an attractive lure of post-retirement jobs.
    • Second, as the privilege of Master of the Roster shows, the CJI’s allocation of cases is an unchecked power.
    • The continuing project of judicial reforms should then address these two issues.

    Way forward

    • A cooling-off period between retirement and a post-retirement appointment has often been suggested as a way to deal with the first problem.
    • For the second, the power of Master of the Roster needs to be diversified beyond the CJI’s exclusive and untrammelled discretion.

    Consider the question “What are the issues with the Master of the Roaster power of the Chief Justice of India? Suggest the ways to deal with the issue.” 

    Conclusion

    We need to carry out these reforms make the judiciary less prone to interference from the executive.