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Subject: Polity

  • What is the ‘Office of Profit’?

    The Joint Parliamentary Committee on Office of Profit has deliberated on whether a Parliamentarian can continue to teach at University and if this draws the provisions of “Office of Profit” rules.

    Note: The Constitution of India does not define the Office of Profit. It has only mentioned it under Article 102 (1) and Article 191 (1).

    The concept of ‘Office of Profit’

    • MPs and MLAs, as members of the legislature, hold the government accountable for its work.
    • The essence of disqualification is if legislators hold an ‘office of profit’ under the government, they might be susceptible to government influence, and may not discharge their constitutional mandate fairly.
    • The intent is that there should be no conflict between the duties and interests of an elected member.
    • Hence, the office of profit law simply seeks to enforce a basic feature of the Constitution- the principle of separation of power between the legislature and the executive.

    What governs the term?

    • At present, the Parliament (Prevention of Disqualification) Act, 1959, bars an MP, MLA or an MLC from holding any office of profit under the central or state government unless it is exempted.
    • However, it does not clearly define what constitutes an office of profit.
    • Legislators can face disqualification for holding such positions, which bring them financial or other benefits.
    • Under the provisions of Article 102 (1) and Article 191 (1) of the Constitution, an MP or an MLA (or an MLC) is barred from holding any office of profit under the Central or State government.

    An Un-defined term

    • The officials of the law ministry are of the view that defining an office of profit could lead to the filing of a number of cases with the Election Commission and the courts.
    • Also, once the definition is changed, one will also have to amend various provisions in the Constitution including Article 102 (1) (a) and Article 109 (1) (a) that deal with the office of profit.
    • It will have an overarching effect on all the other sections of the Constitution.

    Factors constituting an ‘office of profit’

    • The 1959 law does not clearly define what constitutes an office of profit but the definition has evolved over the years with interpretations made in various court judgments.
    • An office of profit has been interpreted to be a position that brings to the office-holder some financial gain, or advantage, or benefit. The amount of such profit is immaterial.
    • In 1964, the Supreme Court ruled that the test for determining whether a person holds an office of profit is the test of appointment.

    Several factors are considered in this determination including factors such as:

    1. whether the government is the appointing authority,
    2. whether the government has the power to terminate the appointment,
    3. whether the government determines the remuneration,
    4. what is the source of remuneration, and
    5. the power that comes with the position.

  • National Population Register

    The office of the Registrar General of India (RGI) has said the schedule or the questionnaire of the National Population Register (NPR) is being finalised.

    The National Population Register (NPR)

    • The NPR is a database containing a list of all usual residents of the country. Its objective is to have a comprehensive identity database of people residing in the country.
    • It is generated through house-to-house enumeration during the “house-listing” phase of the census, which is held once in 10 years.
    • The last census was in 2011, and the next will be done in 2021 (and will be conducted through a mobile phone application).
    • A usual resident for the purposes of NPR is a person who has resided in a place for six months or more and intends to reside there for another six months or more

    How it is different from the Census?

    • The census involves a detailed questionnaire and there were 29 items to be filled up in the 2011 census.
    • They aimed at eliciting the particulars of every person, including age, sex, marital status, occupation, birthplace, mother tongue, religion, whether they belonged to any SC or ST etc.
    • On the other hand, NPR collects basic demographic data and biometric particulars.
    • Once the basic details of the head of the family are taken by the enumerator, an acknowledgement slip will be issued. This slip may be required for enrolment in NPR, whenever that process begins.
    • The details will be recorded in every local (village or ward), sub-district (tehsil or taluk), district and state level.
    • Once the details are recorded, there will be a population register at each of these levels. Together, they constitute the National Population Register.

    What is the legal basis for the NPR?

    • While the census is legally backed by the Census Act, 1948, the NPR is a mechanism outlined in a set of rules framed under the Citizenship Act, 1955.
    • Section 14A was inserted in the Citizenship Act, 1955, in 2004, providing for the compulsory registration of every citizen of India and the issue of a “national identity card” to him or her.
    • It also said the Central government may maintain a “National Register of Indian Citizens”.
    • The Registrar General India shall act as the “National Registration Authority” (and will function as the Registrar General of Citizen Registration).
    • Incidentally, the Registrar General is also the country’s Census Commissioner.

    Attempt this question

    Q.Enumerate the major points of the ‘Assam accord (1985)’. How is it associated with the present issue of the National Register of Citizens?

  • Inter state water Sharing disputes

    The article highlights the issue of challenges facing the water governance in India, how need for more coordination between the Centre and the States.

    Objectives of the two bills

    • Interstate River Water Disputes Amendment Bill 2019 and the Dam Safety Bill 2019 were passed by Lok Sabha and awaits Rajya Sabha nod.
    • The Interstate River Water Disputes Amendment Bill 2019 seeks to improve the inter-state water disputes resolution by setting up a permanent tribunal.
    • The Dam Safety Bill 2019 aims to deal with the risks of India’s ageing dams, with the help of a comprehensive federal institutional framework comprising.
    • The other pending bills also propose corresponding institutional structures and processes.

    Challenges to the federal water governance

    • The agenda of future federal water governance is not limited to the above cited issues.
    • These include emerging concerns of long-term national water security and sustainability, the risks of climate change, and the growing environmental challenges, including river pollution.
    • These challenges need systematic federal response where the Centre and the states need to work in a partnership mode.
    • Greater Centre-states coordination is also crucial for pursuing the current national projects — whether Ganga river rejuvenation or inland navigation or inter-basin transfers.

    Challenges to water governance

    • Water governance is perceived and practiced as the states’ exclusive domain, even though their powers are subject to those of the Union under the Entry 56 about inter-state river water governance.
    • The River Boards Act 1956 legislated under the Entry 56 has been in disuse.
    • No river board was ever created under the law.
    • The Centre’s role is largely limited to resolving inter-state river water disputes by setting up tribunals for their adjudication.
    • Combined with the states’ dominant executive power, these conditions create challenges for federal water governance.
    • This state of affairs puts the proposed bills at a disadvantage.

    Bridging the water governance gap

    • Each bill proposes their own institutional mechanisms and processes leaning on closer Centre-state coordination and deliberation.
    • The disputes resolution committee and dam safety authority rely on active Centre-states participation.
    • Segmented and fragmented mechanisms bear the risks of the federal water governance gap.

    Way forward

    • The massive central assistance (Rs 3.6 lakh crore- Centre and states together) through  Jal Jeevan Mission (JJM), is an opportunity to open a dialogue with the states to address this governance gap.
    • Globally, federated systems with comparable organisation of powers have used similar investments to usher key water sector reforms.
    • The symbiotic phase of implementing JJM can be productively used to engage in a dialogue with the states about the larger water resources management agenda, beyond the mission’s goals.
    • The Centre can work with the states in building a credible institutional architecture for gathering data and producing knowledge about water resources.

    Consider the question “Water governance in the country requires greater Centre-State coordination to deal with the current issues as well as future challenges. In light of this, examine the challenges and suggest the strategies to deal with it.”

    Conclusion

    Bridging the governance gap between the Centre and State and creation of institutional framework is at the heart of addressing the future challenges to the federal water governance in the country.

    Back2Basics: River Board Act 1956

    • The act to provide for the establishment of River Boards for the regulation and development of inter-state rivers and river valleys.
    • It empowers the Central Government, on a request received in this behalf from a State Government to establish a River Board for advising the Governments on regulation or development of an inter-State river or river valley or any specified part thereof.

  • Mahajan Commission Report on Maha-K’taka boundary dispute

    A Maharashtra leader has sparked a controversy, when he called the incorporation of Belgaum (Belagavi), Karwar and Nipani areas of Karnataka into Maharashtra, as a dream of the ruling party.

    Try answering this

    Q.The linguistic re-organization of India in the post-Independence period has prevented its balkanization, unlike our neighbourhood. Comment.

    Maha-K’taka boundary dispute

    • The erstwhile Bombay Presidency, a multilingual province, included the present-day Karnataka districts of Vijayapura, Belagavi, Dharwad and Uttara-Kannada.
    • In 1948, the Belgaum municipality requested that the district, having a predominantly Marathi-speaking population, be incorporated into the proposed Maharashtra state.
    • However, the States Reorganization Act of 1956, which divided states into linguistic and administrative lines, made Belgaum and 10 taluka of Bombay State a part of the then Mysore State

    The Mahajan Commission

    • While demarcating borders, the Reorganization of States Commission sought to include talukas with a Kannada-speaking population of more than 50 per cent in Mysore.
    • Opponents of the region’s inclusion in Mysore argued, and continue to argue, that Marathi-speakers outnumbered Kannadigas who lived there in 1956.
    • In September 1957, the Bombay government echoed their demand and lodged a protest with the Centre, leading to the formation of the Commission under former CJI Mehr Chand Mahajan in October 1966.

    Beginning of the dispute

    • The Commission recommended that 264 villages be transferred to Maharashtra (which formed in 1960) and that Belgaum and 247 villages remain with Karnataka.
    • Maharashtra rejected the report, calling it biased and illogical, and demanded another review.
    • Karnataka welcomed the report and has ever since continued to press for implementation, although this has not been formally done by the Centre.

    A case pending in the Supreme Court

    • Successive governments in Maharashtra have demanded their inclusion within the state– a claim that Karnataka contests.
    • In 2004, the Maharashtra government moved the Supreme Court for a settlement of the border dispute under Article 131(b) of the Constitution.
    • It demanded 814 villages from Karnataka on the basis of the theory of village being the unit of calculation, contiguity and enumerating linguistic population in each village.
    • The case is pending in the apex court.

  • Article 32 and the Supreme Court

    A Supreme Court bench headed by CJI has observed that it is “trying to discourage” individuals from filing petitions under Article 32 of the Constitution.

    Try this PYQ:

    Q.Which of the following is included in the original jurisdiction of the Supreme Court?

    1. Dispute between the Government of India and one or more States
    2. A dispute regarding elections to either House of the parliament or that of Legislature of a State
    3. A dispute between the Government of India and Union Territory
    4. A dispute between two or more States.

    Select the correct answer using the codes given below:

    (a) 1 and 2

    (b) 2 and 3

    (c) 1 and 4

    (d) 3 and 4

    What is Article 32?

    • Article 32 deals with the ‘Right to Constitutional Remedies’, or affirms the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred in Part III of the Constitution.
    • It is one of the fundamental rights listed in the Constitution that each citizen is entitled.
    • It states that the Supreme Court “shall have the power to issue directions or orders or writs for the enforcement of any of the rights conferred by this Part”.
    • The right guaranteed by this Article “shall not be suspended except as otherwise provided for by this Constitution”.
    • Dr B R Ambedkar has called it the very soul and heart of the Constitution. It cannot be suspended except during the period of Emergency.

    Rights protected by A32

    • The article is included in Part III of the Constitution with other fundamental rights including to Equality, Freedom of Speech and Expression, Life and Personal Liberty, and Freedom of Religion.
    • Only if any of these fundamental rights is violated can a person can approach the Supreme Court directly under Article 32.

    Types of Writs under it

    Both the High Courts and the Supreme Court can be approached for violation or enactment of fundamental rights through five kinds of writs:

    1. Habeas corpus (related to personal liberty in cases of illegal detentions and wrongful arrests)
    2. Mandamus — directing public officials, governments, courts to perform a statutory duty;
    3. Quo Warranto — to show by what warrant is a person holding public office;
    4. Prohibition — directing judicial or quasi-judicial authorities to stop proceedings which it has no jurisdiction for; and
    5. Certiorari — re-examination of an order given by judicial, quasi-judicial or administrative authorities.
    • In civil or criminal matters, the first remedy available to an aggrieved person is that of trial courts, followed by an appeal in the High Court and then the Supreme Court.
    • When it comes to violation of fundamental rights, an individual can approach the High Court under Article 226 or the Supreme Court directly under Article 32.

    Supreme Court’s recent observations

    • The observation came during the hearing of a petition seeking the release of a journalist, who was arrested while reporting on an alleged gangrape and murder.
    • The court asked why the petitioners could not go to the High Court first.
    • In another case invoking Article 32, a Nagpur-based man was arrested for alleged defamatory content against Maharashtra CM, the same Bench directed him to approach the High Court first.

  • Governor’s inaction and judicial scrutiny

    The inaction by the Governor of Tamil Nadu on advice to free the convict has raised the possibility of judicial intervention due to undue delay.

    Inaction by Governor on advice

    • The Governor of Tamil Nadu has continued to withhold his decision on an application seeking pardon by one of the seven prisoners convicted in the Rajiv Gandhi assassination case.
    • In September 2018, the Supreme Court (SC) had observed, while hearing a connected writ petition, that the Governor should take a decision
    • The inaction by the Governor now has given rise to constitutional fault lines within the Executive arm of the government.

    Past judgements on pardoning power

    • In Maru Ram v. Union of India (1981)  Supreme Court held that the pardoning power “under Articles 72 and 161 of the Constitution can be exercised by the Central and the State Governments, not by the President or Governor on their own.”
    • The majority judgment had said that the “advice of the appropriate Government binds the Head of the State”.
    • Therefore, a Governor is neither expected, nor is empowered, to test the constitutionality of the order or resolution presented to her.

    Issue of delay in decision of mercy petition

    • Recently, the Supreme Court, had examined the inordinate delay by the President and the Governor — in taking decisions on mercy petitions.
    • The Supreme Court, in the case of Shatrugan Chouhan v. Union of India, laid down the principle of “presumption of dehumanising effect of such delay”.
    • The Supreme Court confirmed that the due process guaranteed under Article 21 was available to each and every prisoner “till his last breath”.

    Judicial scrutiny of the actions of Speakers

    • It was hitherto believed that the powers of the Speaker, holding a constitutional office and exercising powers granted under the Constitution, were beyond the scope of a ‘writ of mandamus’.
    • In the recent case of Keisham Meghachandra Singh v. Hon’ble Speaker (2020), the Supreme Court was asked to examine the Speaker’s inaction with regard to disqualification proceedings.
    • However, the apex court, referering to Rajendra Singh Rana v. Swami Prasad Maurya (2007), had confirmed its view that the “failure on the part of the Speaker to decide the application seeking a disqualification cannot be said to be merely in the realm of procedure”
    • Consequently, breaking years of convention, the SC set the time period of four weeks to decide the disqualification petition.
    • By doing so, the Supreme Court has indicated that it would not be precluded from issuing directions in aid of a constitutional authority “arriving at a prompt decision”.

    Consider the question “The undue delays and inactions by the constitutional functionaries threaten to widen the constitutional faultlines among the Executives. Comment.”

    Conclusion

    Instead of relying on the judicial intervention in the event of delays, it would be better to have a set time limit for arriving at decision by the constitutional judiciary.

  • What is Recusal of Judges?

    A Justice of the Supreme Court has recused himself from hearing a petition that sought action against the Andhra Pradesh CM for levelling political allegations against an AP High Court judge.

    Can you list down some basic principles of judicial conduct?

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

    What is the Recusal of Judges?

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

    Rules on Recusals

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

    Issues with recusal

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

  •  Assam-Mizoram Boundary Dispute

    The recent violence and tension on the Assam-Mizoram border underline the differences the two States have had since 1972 when Mizoram was carved out of Assam as a Union Territory.

    Try answering this:

    Q.Assam has had boundary problems with almost all of its north-eastern neighbours. Discuss.

    *Also note the states bordering Assam.

    What is the Dispute?

    • Mizoram was carved out of Assam as a Union Territory in 1972. In 1987, it became a full-fledged state.
    • The two states have sparred over where the border lies in the past, leading to the occasional violence.
    • The disagreement stems from differing views on which border demarcation to follow.
    • Mizoram’s perception of the border is based on an 1875 notification that flows from the Bengal Eastern Frontier Regulation Act of 1873.
    • The Act demarcated the Lushai Hills from the plains and valleys in the North East, restricting free travel between the two zones. The hills were deemed to be “excluded areas”.
    • Assam, for its part, goes by a 1933 notification by the state government that demarcated the Lushai Hills, as Mizoram was then known, from the province of Manipur.

    The Assamese problem

    • Assam has had boundary problems with all its north-eastern neighbours, except Manipur and Tripura that had existed as separate entities.
    • The primary reason is that the other States, a part of Assam during the British rule, have contested the boundaries since they became States, beginning with Nagaland in 1963.
    • Assam has accepted several recommendations of border commissions set up by the Supreme Court, but other States have been sticking to “historical boundaries” that go back to the period before 1826.
    • However, the border residents have to bear the brunt of the unrest unless an acceptable solution is arrived at.

  • Issues with the regulation of digital media by government

    The article deals with the recent decision of the government to regulate digital media through the Ministry of Information and Broadcasting and issues with it.

    Regulating the press

    • Recently, government put the online news and current affairs portals along with “films and audio-visual programmes made available by online content providers” under the Ministry of Information and Broadcasting.
    • Through the move, government is clubbing the only sector of the media which has pre-censorship, namely films  with the news media which has so far, at least officially, not been subject to pre-censorship.
    • The move hijacks matters before the Supreme Court of India relating to freedom of the press and freedom of expression to arm the executive with control over the free press, thereby essentially making it unfree.
    • It also hijacks another public interest litigation in the Supreme Court relating to content on “Over The Top” (OTT) platforms not being subject to regulation or official oversight to bring that sector too under the Ministry of Information and Broadcasting.
    • The move creates an artificial distinction between the new-age digital media which is the media of the future, the media of the millennial generation — and the older print and TV news media.

    Reasons given by the government and issues with it

    • The explanation given is that the print media have the oversight of the Press Council of India and the TV media of the News Broadcasters Association (NBA).
    • Therefore the digital media needed a regulatory framework — no less than that of the Ministry of Information and Broadcasting.
    • However, there is no comparison between the Press Council of India and the NBA as professional bodies on the one hand and the Ministry of Information and Broadcasting on the other.
    • The fate of the digital media under the control of the Ministry of Information and Broadcasting leaves little scope for hope.

    Consider the question “Regulation of digital media while solving some chronic issues gives rise to concerns over the freedom of press and expression. In light of this, examine the need for regulation of digital media by government and issues in it.”

    Conclusion

    The government regulations would be counterproductive for both the media practitioner and the media entrepreneur and for the startups that have been the new vibrant face of contemporary journalism.

  • Contempt of Court and A-G’s consent

    Attorney-General gave his consent for the initiation of criminal contempt proceedings against the stand-up comedian for his tweets following a Supreme Court’s decision to grant interim bail to a news anchor.

    Note important power, functions and limitations of AGI. A bluff can be created with the dicey statements in the prelims.

    Also read:

    [Burning Issue] Free Speech Vs. Contempt of Court

    What is Contempt of Court?

    • According to the Contempt of Courts Act, 1971, contempt of court can either be civil contempt or criminal contempt.
    • Civil contempt means wilful disobedience of any judgment, decree, direction, order, writ or another process of a court, or wilful breach of an undertaking given to a court.
    • Criminal contempt, on the other hand, is attracted by the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which:

    (i) Scandalizes or tends to scandalise, or lowers or tends to lower the authority of, any court; or

    (ii) Prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or

    (iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner

    • In 2006, the government brought in an amendment, which now provides “truth” as defence provided it is bona fide and in the public interest.

    Why is the A-G’s consent needed to initiate contempt proceedings?

    • In cognizance of criminal contempt, The Contempt of Courts Act, 1971 has a provision under Subsection 1 of Section 15.
    • It reads that- in the case of criminal contempt, (other than contempt in the face of the Supreme Court or a High Court), the related court may take action on its own motion or on a motion made by (a) the Advocate-General, or (b) any other person, with the consent in writing of the Advocate-General.

    Back2Basics: Attorney General of India (AGI)

    • The AGI is the Indian government’s chief legal advisor and is a primary lawyer in the Supreme Court of India.
    • They can be said to be the advocate from the government’s side.
    • They are appointed by the President of India on the advice of Union Cabinet under Article 76(1) of the Constitution and holds office during the pleasure of the President.
    • They must be a person qualified to be appointed as a Judge of the Supreme Court ( i.e. a judge of some high court for five years or an advocate of some high court for ten years or an eminent jurist, in the opinion of the President and must be a citizen of India.).

    Functions and duties

    • The AGI is necessary for advising the Government of India on legal matters referred to them.
    • They also perform other legal duties assigned to them by the President.
    • The AGI has the right of audience in all Courts in India as well as the right to participate in the proceedings of the Parliament, though not to vote.
    • The AGI appears on behalf of Government of India in all cases (including suits, appeals and other proceedings) in the Supreme Court in which GoI is concerned.
    • They also represent the Government of India in any reference made by the President to the Supreme Court under Article 143 of the Constitution.
    • The AG is assisted by a Solicitor General and four Additional Solicitors General.