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Subject: Polity

  • Sixth Schedule areas of Assam

    The Ministry of Home Affairs (MHA) has informed the Lok Sabha that presently, there is no proposal to implement the Panchayat system in the Sixth Schedule areas of Assam.

    Try this question from CSP 2015:

    Q.The provisions in Fifth Schedule and Sixth Schedule in the Constitution of India are made in order to-

    (a) protect the interests of Scheduled Tribes

    (b) determine the boundaries between States

    (c) determine the powers, authority and responsibilities of Panchayats

    (d) protect the interests of all the border States

    What is the Sixth Schedule?

    • The Sixth Schedule consists of provisions for the administration of tribal areas in Assam, Meghalaya, Tripura and Mizoram, according to Article 244 of the Indian Constitution.
    • Passed by the Constituent Assembly in 1949, it seeks to safeguard the rights of the tribal population through the formation of Autonomous District Councils (ADC).
    • ADCs are bodies representing a district to which the Constitution has given varying degrees of autonomy within the state legislature.
    • The governors of these states are empowered to reorganize the boundaries of the tribal areas.
    • In simpler terms, she or he can choose to include or exclude any area, increase or decrease the boundaries and unite two or more autonomous districts into one.
    • They can also alter or change the names of autonomous regions without separate legislation.

    Autonomous districts and regional councils

    • The ADCs are empowered with civil and judicial powers can constitute village courts within their jurisdiction to hear the trial of cases involving the tribes.
    • Governors of states that fall under the Sixth Schedule specify the jurisdiction of high courts for each of these cases.
    • Along with ADCs, the Sixth Schedule also provides for separate Regional Councils for each area constituted as an autonomous region.
    • In all, there are 10 areas in the Northeast that are registered as autonomous districts – three in Assam, Meghalaya and Mizoram and one in Tripura.

    The specified tribal areas are the North Cachar Hills, Karbi Anglong and the Bodoland Territorial Area in Assam, Khasi Hills, Jaintiya Hills and Garo Hills in Meghalaya, Tribal Areas in Tripura, Chakma, Mara and Lai districts in Mizoram.

    • These regions are named as district council of (name of district) and regional council of (name of region).
    • Each autonomous district and regional council consists of not more than 30 members, of which four are nominated by the governor and the rest via elections. All of them remain in power for a term of five years.

  • Corrective voice from Supreme Court against stereotyping of women

    A judgment by the Supreme Court forbidding judges from making gender-stereotypical comments came as a corrective voice from within the highest judiciary.

    Q.Discuss the need for gender sensitization of the judicial institutions.

    What is the news?

    • The judgment came days after the CJI, during a virtual hearing reportedly asked an alleged rapist’s lawyer to enquire whether his client would marry the survivor.
    • His statement coincided with International Women’s Day.
    • Days later, a Bench of Justices A.M. Khanwilkar and S. Ravindra Bhat urged courts to avoid using reasoning/language which diminished a sexual offence and tended to trivialize the survivor.

    What did the Court say?

    • The greatest extent of sensitivity is to be displayed in the judicial approach, language and reasoning adopted by the judge.
    • Even a solitary instance of such order or utterance in court, reflects adversely on the entire judicial system of the country, undermining the guarantee to fair justice to all, and especially to victims of sexual violence.
    • This judgment is one among a series of interventions with which the apex court has clamped down on abuse and sex stereotyping of women.

    No institution is mightier than the modesty of a woman.

    SC against stereotyping

    Some of the notable judgments which have lashed out at sex stereotyping include:

    1. The framing of the Vishaka Guidelines on sexual harassment of women in working places, and
    2. Justice D.Y. Chandrachud’s historic judgment giving women Armed Forces officers’ equal access to Permanent Commission while debunking the establishment’s claim that women were physiologically weaker than men
    3. In the Anuj Garg case, the Supreme Court had rebuked “the notion of romantic paternalism”, which, “in practical effect, put women, not on a pedestal, but in a cage”

    Avoid gender stereotypes such as:

    The courts should desist from expressing any stereotype opinion, in words spoken during proceedings, or in the course of a judicial order, to the effect that

    • women are physically weak and need protection;
    • men are the “head” of the household and should take all the decisions relating to family;
    • women should be submissive and obedient according to our culture;
    • “good” women are sexually chaste;
    • motherhood is the duty and role of every woman and assumptions to the effect that she wants to be a mother;
    • being alone at night or wearing certain clothes make women responsible for being attacked;
    • lack of evidence of physical harm in sexual offence case leads to an inference of consent by the woman.

    Conclusion

    • Stereotyping compromises the impartiality and integrity of the justice system, which can, in turn, lead to miscarriages of justice, including the re-victimization of complainants.
    • Often judges adopt rigid standards about what they consider to be appropriate behaviour for women and penalize those who do not conform to these stereotypes.

    There should be gender sensitization

    • The court-mandated that a module on gender sensitization is included, as part of the foundational training of every judge.
    • This module must aim at imparting techniques for judges to be more sensitive in hearing and deciding cases of sexual assault, and eliminating entrenched social bias, especially misogyny.

  • How amendment bill will affect Delhi’s administration

    The article highlights the issues with the amendment bill introduced by the Centre to clarify the term ‘Government’.

    Why Delhi was made Union Territory: Historical background

    • When the Constitution came into force, there were four kinds of States, called Parts A,B, C and D States.
    • The last two were administered by centrally appointed Chief Commissioners and Lieutenant Governors, with no locally elected Assemblies to aid and advise them.
    • First, it was felt that if Delhi became a part of any constituent State of the Union, that State would sooner or later acquire a predominant position in relation to other States.
    • Second, the need for keeping the National Capital under the control of the Union Government was deemed to be vital in the national interest.
    • Third, it was felt that if Delhi became a full State, the administration of the National Capital would be divided into rigid compartments of the State field and Union field.
    • Conflicts would likely arise in vital matters, particularly if the two governments were run by different political parties.
    • Hence, Delhi was initially made a Part C State.
    • In 1951, a Legislative Assembly was created with an elected Chief Minister.
    • In 1956, when the Constitution of India was amended to implement the provisions of the States Reorganisation Act, only two categories, namely, States and Union Territories remained in the Indian Union.
    • Delhi then became a Union Territory to be administered by an Administrator appointed by the President.
    • Ten years later, the Delhi Administration Act, 1966 provided for a limited representative Government in Delhi through a Metropolitan Council comprising 56 elected Members and five nominated Members.

    Balakrishnan Committee report

    • In 1989, the Balakrishnan Committee recommended that Delhi should continue to be a Union Territory but that there must be a Legislative Assembly and Council of Ministers responsible to the said Assembly with appropriate powers.
    • Based on this report, the Constitution (69th) Amendment Act and the Government of National Capital Territory of Delhi (GNCT) Act, 1991 were passed.
    • They roughly restored the kind of governance system that was offered to Delhi in 1952: a Union Territory with a Legislative Assembly, a Council of Ministers and an elected Chief Minister.
    • This limited reincarnation has continued to hold the field to date, despite several efforts to progress to full or near-statehood.

    LG-Delhi Government conflict

    • A Bench in 2018 ruled over the conflict and said that Parliament envisaged a representative form of Government for the NCT of Delhi.
    • The Bench also said that the Constitution has mandated a federal balance wherein independence of a certain required degree is assured to the State Governments.
    • The remaining issues of governance, especially in the matter of control over Delhi government servants, was remitted to two judges of the Court for further adjudication.
    • In 2019, there was a difference of opinion recorded in separate judgments by the two judges and the matter awaits hearing before a larger Bench. 

    Issues with the Amendment Bill

    • The central government recently introduced a Bill, namely, the Government of National Capital Territory of Delhi (Amendment) Bill, 2021 seeks, inter alia, to clarify the expression ‘Government’ in 2018 Supreme Court judgement.
    • The Bill effectively reduces the elected government to a mere vestigial organ and elevates the centrally appointed LG, to the position of a Viceroy with plenipotentiary powers.
    • It further provides that before taking any executive action to exercise powers of Government, the opinion of Lieutenant Governor shall be obtained on all such matters as may be specified by Lieutenant Governor.
    • The population of Delhi which counts among the highest in the world, will have an unrepresentative administration.
    • It is quite likely that the amendment act will end up being challenged in the constitutional courts.
    • The Supreme Court has already cautioned — “Interpretation cannot ignore the conscience of the Constitution.“

    Consider the question “Examine the issues with Government of National Capital Territory of Delhi (Amendment) Bill, 2021. Do you think that the Bill will avoid the conflict between the LG and the Delhi government?” 

    Conclusion

    The Amendment Bill should be reconsidered given its impact on the administration of the Delhi government.

  • Plea against sale of Electoral Bonds

    CJI has agreed to urgently hear a plea to stay the sale of a new set of electoral bonds on April 1, before Assembly elections in crucial states such as West Bengal and Tamil Nadu.

    Note the denominations of the Electoral Bonds and the issuers.

    What is the news?

    • Data obtained through RTI has shown that illegal sale windows have been opened in the past to benefit certain political parties.
    • There is a serious apprehension that any further sale of electoral bonds before the upcoming State elections would further increase illegal and illicit funding of political parties through shell companies.

    What are Electoral Bonds?

    • The electoral bonds were introduced on January 29, 2018.
    • An electoral bond is like a promissory note that can be bought by any Indian citizen or company incorporated in India from select branches of the State Bank of India.
    • The citizen or corporate can then donate the same to any eligible political party of his/her choice.
    • The bonds are similar to banknotes that are payable to the bearer on demand and are free of interest.
    • An individual or party will be allowed to purchase these bonds digitally or through a cheque.

    How to invest?

    • The bonds will be issued in multiples of Rs 1,000, Rs 10,000, Rs 100,000 and Rs 1 crore (the range of a bond is between Rs 1,000 to Rs 1 crore).
    • These will be available at some branches of SBI.
    • A donor with a KYC-compliant account can purchase the bonds and can then donate them to the party or individual of their choice.
    • Now, the receiver can encash the bonds through the party’s verified account. The electoral bond will be valid only for fifteen days.
    • The 29 specified SBI branches are in cities such as New Delhi, Gandhinagar, Chandigarh, Bengaluru, Bhopal, Mumbai, Jaipur, Lucknow, Chennai, Kolkata and Guwahati.

    Issues with them

    • The plea has argued that the sale of electoral bonds had become an avenue for shell corporations and entities to park illicit money and even proceeds of bribes with political parties.
    • There are documents from the RBI and the Election Commission that say the electoral bonds scheme is detrimental to democracy.

    Govt.’s view: Anonymity of the donor matters

    • The government has defended the scheme in court, saying it allowed anonymity to political donors to protect them from “political victimisation”.
    • The Ministry of Finance’s affidavit in the top court had dismissed the Election Commission’s version that the invisibility afforded to benefactors was a “retrograde step” and would wreck transparency in political funding.
    • The government affidavit had said the clause of secrecy was a product of “well-thought-out policy considerations”.
    • It said the earlier system of cash donations had raised a “concern among the donors that, with their identity revealed, there would be competitive pressure from different political parties receiving donation”.

  • 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.