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Subject: Polity

  • Jammu and Kashmir notifies amended domicile certificate rules

    The J&K administration has notified the J&K grant of domicile certificate procedure rules 2020 and set a fast track process in motion to issue the certificates within a stipulated time of 15 days.

    Practice mains question:

    Discuss how the new domicile rules for the UT of Jammu and Kashmir would enable its full integration with the mainstream India.

    New domicile rules

    • Domicile certificates have now been made a basic eligibility condition for appointment to any post under the Union Territory of J&K following the amendments in the previous Act.
    • These rules provide a simple time-bound and transparent procedure for issuance of domicile certificates in such a manner that no category of person is put to any inconvenience.
    • There is a timeline of 15 days for issuance of certificates. Under the amended rules, eligible non-locals can also apply for the certificate.
    • To make the process transparent and time-bound, any officer not able to issue the certificate would be penalized â‚č50,000. The amount would be recovered from his salary.
    • The new process will allow West Pakistan refugees, safai karamcharis and children of women who married non-locals to apply for jobs here.

    Who can avail the domicile certificates?

    • All Permanent Resident Certificate holders and their children living outside J&K can apply for the certificates.
    • Kashmiri migrants living in or outside J&K can get domicile certificates by simply producing their Permanent Residence Certificate (PRC), ration card copy, voter card or any other valid document.
    • A special window is also provided to migrants who have not registered with the Relief and Rehabilitation department.
    • Bonafide migrants can apply with the Relief and Rehabilitation department by providing documents like electoral rolls of 1988, proof of registration as a migrant in any State in the country or any other valid document.

    Earlier Criteria for Domiciles

    Satisfying any of the criteria mentioned below, a person would be deemed as a domicile of the UT of Jammu and Kashmir:

    • A person who has resided for a period of 15 years in the UT of J&K or
    • A person who has studied for a period of seven years and appeared in Class 10th/12th examination in an educational institution located in the UT of J&K
    • Someone who is registered as a migrant by the Relief and Rehabilitation Commissioner (Migrants)
    • Children of Central government officials, All India Services, PSUs, autonomous body of Centre, Public Sector Banks, officials of statutory bodies, Central Universities, recognised research institutes of Centre who have served in J&K for a total period of 10 years
    • Children of such residents of J&K who reside outside J&K in connection with their employment or business or other professional or vocational reasons but their parents fulfil any of the conditions provided

    Job criteria for new domiciles

    • The domiciles will be eligible for the purposes of appointment to any post carrying a pay scale of not more than Level 4.
    • The Level 4 post comprises positions such as gardeners, barbers, office peons and waterman and the highest rank in the category is that of a junior assistant.
    • The reservation for domiciles would not apply to Group A and Group B posts, and like other UTs, recruitment would be done by the UPSC.

    Must read:

    [Burning Issues] J&K New Domicile Rules

  • Over 42,000 undertrials released to unclog prisons: NALSA report

    Legal services institutions have intervened to release 42,529 undertrial prisoners as well as 16,391 convicts on parole to de-congest prisons during the COVID-19 pandemic, a report from NALSA has said.

    Practice question for mains:

    Q. More than a century-old system of prisons in India needs urgent repair. Discuss with context to the increase in the cases of undertrials.

    Decongesting the prison

    • There are 1,339 prisons with approximately 4, 66,084 inmates in India with the rate of occupancy at Indian prisons at 117.6% (a/c to NCRB).
    • The report stated that 243 undertrial prisoners had been granted bail and 9,558 persons in remand had been given legal representation across the country.
    • It said the highest number of undertrial prisoners released was 9,977 in Uttar Pradesh, followed by 5,460 in Rajasthan and 4,547 in Tamil Nadu, 3,698 in Punjab and 3,400 in Maharashtra.
    • Note: Prisons/ Prisoners/persons detained is a State subject under Entry 4 of List II of the Seventh Schedule to the Constitution of India.

    Hardships of the undertrials

    • Right to a speedy trial is an integral part of the principles of fair trial and is fundamental to the international human rights discourse.
    • In Indian jails, most of the prisoners are undertrials, which are confined to the jails until their case comes to a definite conclusion.
    • In most of the cases, they end up spending more time in the jail than the actual term that might have had been awarded to them had the case been decided on a time and, assuming, against them.
    • Plus, the expenses and pain and agony of defending themselves in courts is worse than serving the actual sentence. Undertrials are not guilty till convicted.
    • In 2017, the Law Commission of India had recommended that undertrials who have completed a third of their maximum sentence for offences attracting up to seven years of imprisonment be released on bail.

    About NALSA

    • National Legal Services Authority of India (NALSA) was formed on 9 November 1995 under the authority of the Legal Services Authorities Act 1987.
    • Its purpose is to provide free legal services to eligible candidates and to organize Lok Adalats for the speedy resolution of cases.
    • The CJI is patron-in-chief of NALSA while second seniormost judge of Supreme Court of India is the Executive-Chairman.
    • There is a provision for similar mechanism at state and district level also headed by Chief Justice of High Courts and Chief Judges of District courts respectively.
    • The prime objective of NALSA is speedy disposal of cases and reducing the burden of the judiciary.

    Also read:

    [Burning Issue] Need of Prison Reforms

  • Is the suspension of labour laws a silver bullet?

    In keeping with the exigencies caused by the pandemic, some State governments have suspended several provision of labour laws. This article analyses the implications of such suspensions. And also emphasises the lack of legal basis in the State governments actions. Evolution of the labour laws in India is also discussed here. So, what are these legal issues? Read to know more…

    Some labour laws suspended by the UP government

    • The Uttar Pradesh government has issued an ordinance keeping in abeyance almost all labour statutes.
    • Which includes laws on maternity benefits and gratuity.
    • The Factories Act, 1948.
    • The Minimum Wages Act, 1948.
    • The Industrial Establishments (Standing Orders) Act, 1946.
    • The Trade Unions Act, 1926.
    • This will take away the protection conferred on organised labour by Parliament.

    Some repressive labour laws in colonial era

    • Bengal Regulations VII, 1819 was enacted for the British planters in Assam tea estates.
    • Workers had to work under a five-year contract and desertion was made punishable.
    • Later, the Transport of Native Labourers’ Act, 1863 was passed in Bengal.
    • The Act strengthened control of the employers and even enabled them to detain labourers in the district of employment and imprison them for six months.
    • Bengal Act VI of 1865 was later passed to deploy Special Emigration Police to prevent labourers from leaving and return them to the plantation after detention.

    Workers’ struggle in British India

    • The labour laws in India have emerged out of workers’ struggles, which were very much part of the freedom movement against oppressive colonial industrialists.
    • Since the 1920s there were a series of strikes and agitations for better working conditions.
    • Several trade unionists were arrested under the Defence of India Rules.
    • The workers’ demands were supported by our political leaders.
    • Britain was forced to appoint the Royal Commission on Labour, which gave a report in 1935.
    • The Government of India Act, 1935 enabled greater representation of Indians in law-making.
    • This resulted in reforms, which are forerunners to the present labour enactments.
    • The indentured plantation labour saw relief in the form of the Plantations Labour Act, 1951.

    Acts passed in India to protect workers’ rights

    • The Factories Act lays down eight-hour work shifts, with overtime wages, weekly offs, leave with wages and measures for health, hygiene and safety.
    • The Industrial Disputes Act provides for workers participation to resolve wage and other disputes through negotiations so that strikes/lockouts, unjust retrenchments and dismissals are avoided.
    • The Minimum Wages Act ensures wages below which it is not possible to subsist.

    Constitutional basis of the labour laws

    • These enactments further the Directive Principles of State Policy.
    • These laws also protect the right to life and the right against exploitation under Articles 21 and 23.
    • Trade unions have played critical roles in transforming the life of a worker from that of servitude to one of dignity.
    • In the scheme of socio-economic justice the labour unions cannot be dispensed with.

    Is the suspension of labour laws legally sound?

    • The Supreme Court, in Glaxo Laboratories v. The Presiding Officer, Labour (1983) said about contract between employer and employee “the contract being not left to be negotiated by two unequal persons but statutorily imposed.”
    • The ‘two unequal’ here refers to the inequality between employee and employer.
    • In Life Insurance Corporation v. D. J. Bahadur & Ors (1980), the Supreme Court highlighted that any changes in the conditions of service can be only through a democratic process of negotiations or legislation.
    • Moreover, Parliament did not delegate to the executive any blanket powers of exemption. 
    • Section 5 of the Factories Act empowers the State governments to exempt only in case of a “public emergency”.
    • Which is explained as a “grave emergency whereby the security of India or any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance”.
    • There is no such threat to the security of India now.
    •  Labour is a concurrent subject in the Constitution and most pieces of labour legislation are Central enactments.
    • The U.P. government by Ordinance has said that labour laws will not apply for the next three years.
    •  How can a State government, in one fell swoop, nullify Central enactments?
    • The Constitution does not envisage approval by the President of a State Ordinance which makes a whole slew of laws enacted by Parliament inoperable in the absence of corresponding legislations on the same subject.
    • The orders of the State governments therefore lack statutory support. 

    Consider the question, “Several State governments have resorted to the suspension of labour laws in the aftermath of corona crisis. Examine the implications of the suspension of the laws for the rights of the labours.”

    Conclusion

    Governments have a constitutional duty to ensure just, humane conditions of work and maternity benefits. The health and strength of the workers cannot be abused by force of economic necessity. Labour laws are thus civilisational goals and cannot be trumped on the excuse of a pandemic.

     

     

  • Cooperative Federalism in the Time of Covid-19

    Federalism is part of Basic Structure (Doctrine) of the Constitution. The article is about the lack of cooperative federalism in some of the Central Government’s actions in its fight against the corona crisis. What are those actions? Read to know…

    Opinion of political thinkers on federalism in India

    • K.C. Wheare notes, federalism traditionally signifies the independence of the Union and State governments of a country, in their own spheres.
    • The members of India’s Constituent Assembly carefully studied the Constitutions of other great federations like the US, Canada, Australia and Switzerland.
    • However, they adopted a ‘pick and choose’ policy to formulate a system suited uniquely to the Republic’s need.
    • As a result, India’s Constituent Assembly became the first-ever constituent body in the world to embrace what H. Birch and others have referred to as ‘cooperative federalism’.
    • ‘Cooperative federalism’ is administrative cooperation between the Centre and the States, and a partial dependence of the States upon payments from the Centre.
    • Accordingly, Indian constitutional law expert Granville Austin remarks that despite a strong Centre, cooperative federalism doesn’t necessarily result in weaker States.
    • He also said that the progress of the Republic rests upon active cooperation between the two.

    Lack of consultation with States under DMA 2005

    • The zone classifications into ‘red’ and ‘orange’ has evoked sharp criticisms from several States.
    • The States have demanded more autonomy in making such classifications.
    • The Disaster Management Act of 2005 under which binding COVID-19 guidelines are being issued by the Centre to the States mandates consultation with the States.
    • The Act envisages the creation of a ‘National Plan’ under Section 11, as well as issuance of binding guidelines by the Centre to States under Section 6(2), in furtherance of the ‘National Plan’.
    • The ‘National Plan’ then is a broader vision document while the binding guidelines are its enforcement mechanism.
    • Now, Section 11(2) of the Act mandates State consultations before formulating a ‘National Plan’.
    • And when such binding guidelines are ultimately issued under it, they are expected to represent the views of the States.
    • However, the Centre has not formulated the ‘National Plan’, and has chosen instead to respond to COVID-19 through ad hoc binding guidelines issued to States.
    • Such guidelines thereby circumvent the legislative mandate of State consultations.
    • This selective application of the Act serves to concentrate all decision-making powers with the Centre.

    Lack of funds

    • The Centre has declared that corporations donating to PM-CARES can avail CSR exemptions, but those donating towards any Chief Minister’s Relief Fund cannot.
    • This directly disincentivises donations to any Chief Minister’s Relief Fund.
    • And diverts crores in potential State revenues to PM-CARES; and makes the States largely dependent upon the Centre.
    • Further, the revenue streams of several States have dried up because of the liquor sale ban; negligible sale of petrol/diesel; no land dealings and registration of agreements.
    • States’ GST collections have also been severely affected with their dues still not disbursed by the Centre.
    • All this has made it difficult for States to defray expenses of salaries, pensions and welfare schemes.
    • As it is the States which act as first responders to the pandemic, supplying them with adequate funds becomes a pre-requisite in effectively tackling the crisis.
    • This requires the Centre to view the States as equals, and strengthen their capabilities, instead of increasing their dependence upon itself.

    Consider the question-“Cooperative federalism is the key in the country’s fight against the corona pandemic. Critically examine.”

    Conclusion

    Keeping the spirit of cooperative federalism alive whether in consultation with the States or taking care of their finances is essential as the country is fighting the pandemic. The Centre must realise that we have the best chance of winning the war against pandemic when we are united.

  • Legal aspects of using Disaster Management Act to deal with pandemic

    This article analyses the legal basis of application of the Disaster Management Act to deal with the pandemic by the Central Government. The Disaster Management Act had been enacted using the residuary power of the Union legislature. So, its application to deal with the pandemic gives rise to certain legal issues. Read to know more about such issues.

    Two examples of why centralised approach may be counter-productive?

    • One, the Central government has classified all districts in the country as red, orange or green zones.
    • This classification was done in a bid to lift lockdown restrictions in an area-specific manner.
    • Some States/Union Territories objected to the classification of certain areas/districts as red zones on the ground that these areas are very large.
    • They pointed out that there was no need to keep economic activity on hold in an entire district when cases had been reported only from a small portion of that district.
    • Two, Kerala, probably the best-performing State in terms of its response to COVID-19, was sent a missive by the Central government to refrain from relaxing restrictions in the State.
    • The Central government did not trust the wisdom and judgment of the State government in the matter.

    The federal scheme and residuary power to legislate

    • Under the federal scheme, Parliament can legislate on matters under the Union List (List I).
    • Stage legislatures can legislate on matters under the State List (List II).
    • And both Parliament and State legislatures can legislate on matters under the Concurrent List (List III).
    • The residuary power to legislate on matters that are not mentioned in either List II or List III vests with Parliament under Article 248 of the Constitution read with Entry 97 of List I.
    • Furthermore, the rule of harmonious construction dictates that the entries in the legislative lists must be interpreted harmoniously.
    • And in the event of any overlap between two or more entries, the specific subject matter contained in a particular entry must be deemed to have been excluded from another entry which may deal with a more general subject matter.
    • Finally, as per Articles 73 and 162, the executive power of the Centre and the States is co-extensive with their respective legislative powers.
    • Coextensive legislative and executive power means that the Central and State governments can only take executive actions in matters where Parliament and State legislatures, respectively, have powers to legislate.

    So, which list contains Disaster Management?

    • Disaster management as a field of legislation does not find mention in either List II or List III.
    • Nor does any particular entry in List I specifically deal with this.
    • Thus, the Disaster Management Act could only have been enacted by Parliament in the exercise of its residuary powers of legislation under Article 248 read with Entry 97 of List I.

    Legal problems in using Disaster Management Act for pandemic

    • The Disaster Management Act allows the Centre to issue guidelines, directions or orders to the States for mitigating the effects of any disaster.
    • The definition of ‘disaster’ under the Act is quite broad and, literally speaking, would include a pandemic too.
    • Such a reading of the Act would vest the Central government with powers to issue directions and guidelines to State governments for dealing with the pandemic in their States.
    • However, ‘public health and sanitation’ is a specific field of legislation under Entry 6 of List II.
    • This would imply that States have the exclusive right to legislate and act on matters concerning public health.
    • Thus, the Centre’s guidelines and directions to the States for dealing with the pandemic trench upon a field of legislation and executive action that is exclusively assigned to the States — public health.
    • The Supreme Court has held time and again that federalism is a basic feature of the Constitution and the States are sovereign.
    • The Disaster Management Act cannot be applied to pandemics in view of the fact that the power to legislate on public health is vested specifically and exclusively with the States.
    • Also, under Entry 29 of List III, both Parliament and State legislatures are competent to legislate on matters involving inter-State spread of contagious or infectious diseases.
    • Therefore, theoretically speaking, Parliament would be competent to pass a law that allows the Central government to issue directions to the States to prevent inter-State spread of a disease like COVID-19.
    • That law is not the Disaster Management Act which is concerned with disasters in general, and not pandemics in particular.
    • ‘Prevention of inter-State spread of contagious and infectious diseases’ being a specific legislative head provided in List III, the same must be deemed to have been excluded from Parliament’s residuary legislative powers.
    • Therefore, the Disaster Management Act, which has been enacted under Parliament’s residuary legislative powers, cannot be applied to the prevention of the inter-State spread of contagious and infectious diseases.

    Role of Centre under Epidemic Diseases Act 1897

    • The Epidemic Diseases Act, 1897, has the objective of preventing “
the spread of dangerous epidemic diseases.”
    • However, under this Act, it is the State governments which have the prerogative to take appropriate measures for arresting the outbreak or spread of a contagious or infectious disease in their respective States.
    • The Central government’s powers are limited to taking measures for inspecting and detaining persons travelling out of or into the country.
    • Even if that Act were to be amended, it would not empower the Central government to issue directions to the States to contain the pandemic within the State.
    • It can only deal with the inter-State spread of the disease.

    Consider the question, “Use of the Disaster Management Act to deal with the Covid-19 pandemic gave rise to certain legal issues. Examine them.”

    Conclusion

    Instead of resorting to the Epidemic Diseases Act which gives powers to the States, the Centre has applied the Disaster Management Act. The States are not legally bound to observe the directions/guidelines being issued by the Central government and would be well within their rights to challenge them before the apex court.

     

  • Should Rajya Sabha be abolished?

    This article is about Rajya Sabha, the second chamber of our union legislature. Its utility was intensely debated in the Constituent Assembly. Now, after almost seven decades of its existence, we know that the house has proved its utility. So, what was the reasoning of those who were in support of its creation and what those who opposed its creation had on their mind? How bicameralism is connected to federalism? You’ll come to know the answers to these questions after reading the article.

    Historical background

    • The Rajya Sabha came into being on April 3, 1952 and held its first session on May 13 the same year.
    • The central legislature that came into being under the Government of India Act, 1919 was bicameral.
    • Under 1919 Act, Council of States had 60 members and Legislative Assembly had 145 members.
    • The membership and voting norms for the Council of States were restrictive.
    • These restrictions meant only wealthy landowners, merchants and those with legislative experience could enter it.
    • Women could neither vote nor seek membership.
    • The Government of India Act, 1935 proposed an elaborate and improved version of the second chamber, but this never materialised.
    • The Constituent Assembly, which was formed in 1947, after adoption of the Constitution became the Provisional Parliament and made laws till 1952.

    Bicameralism and the utility of second house

    • Bicameralism is a principle that requires the consent of two differently constituted chambers of Parliament for making or changing laws.
    • This principle came into operation in 1787 with the adoption of the U.S. Constitution.
    • At present, 79 Parliaments of the world (41% of the total number) are bicameral.
    • In The Federalist, the famous essay, it was stated that the second chamber enables a second and reflective expression of representative opinion besides checking the propensity to yield to the impulse of sudden and violent passions.
    • French philosopher Montesquieu who said, “The legislative body being composed of two parts, they check one another by the mutual privilege of rejecting”.
    • Walter Bagehot later noted that the retarding chamber will impede minor instances of parliamentary tyranny, though it will not prevent or really impede revolution.

    Federalism and link with bicameralism

    • Federalism has been in vogue since ancient times when some states got together to confer the power of law-making on a central authority.
    • But modern federalism is entirely different given the complexity of geographical, regional, social and economic diversities marking the constituent units of a federation or a union.
    • It is more so in India. The U.S. is a federation and so is India — each unit has a set of unique features.
    • Federalism and bicameralism are linked because the federal character of a nation comprising constituent units can be reflected in, and secured by, a bicameral legislature.

    Debate in the Constituent Assembly over need for the second house

    • The proposal for the Rajya Sabha as a second chamber was subjected to serious argumentation and had a narrow escape.
    • Opponents’ stand: A member of the Constituent Assembly asserted that an Upper House was not essential and viewed it as a creation of imperialism.
    • Other member warned that such a chamber would only prove to be a “clog in the wheel of progress” of the nation.
    • The proponents’ stand: A supporter of idea felt that it would introduce an element of sobriety and second thought besides lending voice to the constituent units in the legislative scheme of things.
    • Ananthasayanam Ayyangar argued that a second chamber would enable the genius of the people to have full play besides checking hasty legislation.
    • Replying to the debate on the motion N. Gopalaswami Ayyangar had to make a strong case for the second chamber.
    • He argued that the most that we expect the Second Chamber to do is 1) to hold dignified debates on important issues 2) to delay legislation which might be the outcome of passions of the moment until the passions have subsided.

    Consider the question, “Examine the role played by the Rajya Sabha as a law-making body. Do you agree that the Rajya Sabha has been successful in fulfilling the role expected of it by the makers of our Constitution?”

    Conclusion

    The mandate of the Rajya Sabha, as can be gleaned from the Constituent Assembly debates and the experiences of other Parliaments, is legislation — to revise or delay legislation without proving a clog in the wheel of the progress; to represent the interests of the States as a federal chamber, and be a deliberative body holding high-quality debates on important issues.

  • Changes in labour laws: legal but not appropriate

    The article examines the changes made in the labour laws by several states. The legal route to make these changes are different. While some states used the Emergency provision, others used the Ordinance route. One major issue with these changes is that these were brought in without consultation.

    What legal route was used by the States?

    • Changes were made by the several state government in the labour laws dealing with the maximum working hours and other provisions.
    • These changes have been made through notifications issued by the State governments and will be applicable for the next three months.
    • M.P. has also suspended most provisions of the Industrial Disputes Act, 1946 (except those related to retrenchment and layoffs) for 1,000 days for State undertakings.
    • In addition, M.P. issued an ordinance to amend two laws.
    • The M.P. Industrial Employment Standing Orders Act will apply to establishments with more than 100 workmen (up from the existing threshold of 50), in line with the Central Act.
    • The ordinance also enables the government to exempt establishments from the provision of another Act that provided for a labour welfare fund.
    • The Uttar Pradesh government has approved an ordinance that exempts establishments from all labour laws for three years with some exceptions.
    • As this will override provisions of some Central laws, it will require the assent of the President or, in effect, the assent of the Central government.
    • The question is, was there sufficient consultation before all these changes were made?

    Constitutional provisions for the legal route taken: Emergency and ordinance

    • As per the Constitution, the legislature has the authority to make laws.
    • Such laws could delegate powers to the government which are in the nature of detailing some requirements.
    • For example, the Factories Act allows State governments to exempt factories from the provisions of the Act during public emergencies for a maximum period of three months.
    • A public emergency is defined as a grave emergency whereby the security of India or any part is threatened by war, external aggression or internal disturbance.
    • Most States have used this provision, presumably interpreting the current situation as an ‘internal disturbance’.
    • Haryana has used a provision that allows relaxation of work hours “to deal with an exceptional press of work”.
    • The Constitution also permits Central and State governments to make laws through the issuance of an ordinance when the legislature is not in session.
    • Such a law needs to be ratified by the legislature within six weeks of the beginning of the next session. M.P. and U.P. are using this procedure.

    Issues with the changes made

    • Usually, any change in an Act follows a rigorous process of public consultation, scrutiny by committees of Parliament, and debates in the House before being approved.
    • The changes described here have not gone through such a process.
    • However, most of these have a three-month time limit, and any extension would need to be approved by the legislature.

    The four labour codes

    • The Parliament is consolidating 29 existing laws into four codes dealing with- 1) wages, 2) occupational safety and health, 3) industrial relations,4) social security.
    • The first of these has been enacted, the Standing Committee on Labour has submitted the report on the next two, and is examining the last.
    • The Code on Occupational Safety and Health does not specify the maximum hours of work but empowers the government to do so.
    • The Standing Committee report states that the government agreed to incorporate a provision of maximum eight hours per day with overtime permitted for certain types of industry.

    Consider the question “Several States made changes in the labour laws to deal with the problems caused by the corona pandemic. Examine the legal provisions used for making such changes by various States. What are the issues with such changes?”

    Conclusion

    Given the emergency, the government has to take quick action and change the response as the situation evolves. However, that should not be a reason to exclude the processes of consultation with and scrutiny by elected representatives. The legitimacy of state action in a parliamentary democracy comes from the fact that there is constant oversight and check by elected representatives.

  • Law to deal with pandemics

    India lacks specific legislation to deal with pandemics like COVID. While NDMA 2005 and Epidemic Diseases Act 1897 has been invoked to deal with the present situation, both acts lack specific provision in dealing with the pandemics. Here we can take lessons from UK’s Coronavirus Act and Singapore’s regulations to create a well-drafted Indian COVID 19 law.

    Which acts were used for enforcing lockdown?

    • The home ministry issued directions to State governments and district authorities under the Disaster Management Act of 2005.
    • Under the Act, the National Disaster Management Authority (NDMA) was set up under the Prime Minister, and the National Executive Committee (NEC) was chaired by the Home Secretary.
    • The State governments and authorities exercised powers under the Epidemic Diseases Act of 1897 to issue further directions.
    • District authorities such as the Commissioner of Police have consequently issued orders to impose Section 144 of the Criminal Procedure Code in public places.

    Issues with the laws used for lockdown

    • The invoking of the Disaster Management Act has allowed the Union government to communicate seamlessly with the States.
    • But serious questions remain whether the Act was originally intended to or is sufficiently capable of addressing the threat of a pandemic.
    • The use of the archaic Epidemic Diseases Act reveals the lack of requisite diligence and responsiveness of government authorities in providing novel and innovative policy solutions to address a 21st-century problem.
    • Another serious problem is that any violation of the orders passed would be prosecutable under Section 188 of the Indian Penal Code.
    • But section 188 of IPC is a very ineffective and broad provision dealing with disobedience of an order issued by a public servant.

    The UK and Singapore’s laws to deal with the pandemic

    • U.K’s Coronavirus Act, 2020: It deals with issues including emergency registration of healthcare professionals, temporary closure of educational institutions, audio-visual facilities for criminal proceedings, powers to restrict gatherings, and financial assistance to industry.
    • Singapore’s Infectious Diseases Regulations, 2020: These regulations provides for the issuance of stay orders which can send ‘at-risk individuals’ to a government-specified accommodation facility.
    • Both U.K.’s and Singapore’s laws set out unambiguous conditions and legally binding obligations.
    • As such, under Singaporean law, the violators may be penalised up to $10,000 or face six months imprisonment or both.
    • In contrast, Section 188 of the Indian Penal Code has a fine amount of â‚č200 to â‚č1,000 or imprisonment of one to six months.
    • Even then, proceedings under Section 188 can only be initiated by private complaint and not through a First Information Report.
    • As such, offences arising out of these guidelines and orders have a weak basis in terms of criminal jurisdiction thereby weakening the objectives of the lockdown.

    Problems in the government’s approach

    • The Union government showed no inclination towards drafting or enacting COVID-19-specific legislation that could address all the issues pre-emptively.
    • There has been little clarity on a road map to economic recovery.
    • A consolidated, pro-active policy approach is absent.
    • In fact, there has been ad hoc and reactive rule-making, as seen in the way migrant workers have been treated.
    • This has also exposed the lack of coordination between the Union and State governments.

    Consider the question, “Unlike many countries which legislated specific acts to deal with Covid-19 pandemic, India was already equipped with acts which enabled it to deal with the pandemic. Describe the acts and their provisions used to deal with the pandemic. What were the issues  with these provisions?”

    Conclusion

    In past instances, the Union government has not shied away from promulgating ordinances. These circumstances call out for legislative leadership, to assist and empower States to overcome COVID-19 and to revive their economic, education and public health sectors.

    Back2Basics: National Disaster Management Act 2005

    • On 23 December 2005, the Government of India enacted the Disaster Management Act.
    • The act envisaged the creation of the National Disaster Management Authority (NDMA), headed by the Prime Minister.
    • The act also provides for State Disaster Management Authorities (SDMAs) headed by respective Chief Ministers.
    • NDMA and SDMAs spearhead and implement a holistic and integrated approach to Disaster Management in India.
    • The NDMA was formally constituted on 27thSeptember 2006, in accordance with the Disaster Management Act, 2005 with Prime Minister as its Chairperson and nine other members, and one such member to be designated as Vice-Chairperson.
    • According to the Disaster Management Act, 2005 a disaster is defined as-
    • A catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or manmade causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area.
    • The MHA has defined a disaster as an “extreme disruption of the functioning of a society that causes widespread human, material, or environmental losses that exceed the ability of the affected society to cope with its own resources.

    Epidemic Diseases Act  1897

    • The Epidemic Diseases Act is routinely enforced across the country for dealing with outbreaks of diseases such as swine flu, dengue, and cholera.
    • The colonial government introduced the Act to tackle the epidemic of bubonic plague that had spread in the erstwhile Bombay Presidency in the 1890s.
    • Using powers conferred by the Act, colonies authorities would search suspected plague cases in homes and among passengers, with forcible segregations, evacuations, and demolitions of infected places.
    • Historians have criticised the Act for its potential for abuse.
    • In 1897, the year the law was enforced, Lokmanya Tilak was punished with 18 months’ rigorous imprisonment after his newspapers Kesari and Mahratta admonished imperial authorities for their handling of the plague epidemic.

    Provisions of the 1897 Epidemic Diseases Act

    • The Act is one of the shortest Acts in India, comprising just four sections. It aims to provide for the better prevention of the spread of Dangerous Epidemic Diseases.
    • The then Governor-General of colonial India had conferred special powers upon the local authorities to implement the measures necessary for the control of epidemics.
    • Although, the act does define or give a description of a “dangerous epidemic disease”.

    Its various sections can be summarized as under

    • The first section describes all the title and extent, the second part explains all the special powers given to the state government and centre to take special measures and regulations to contain the spread of disease.
    • The second section has a special subsection 2A empowers the central government to take steps to prevent the spread of an epidemic, especially allowing the government to inspect any ship arriving or leaving any post and the power to detain any person intending to sail or arriving in the country.
    • The third section describes the penalties for violating the regulations in accordance with Section 188 of the IPC. Section 3 states, “Six months’ imprisonment or 1,000 rupees fine or both could be charged out to the person who disobeys this Act.”
    • The fourth and the last section deals with legal protection to implementing officers acting under the Act.

  • Judiciary’s tryst with technology

    COVID pandemic has been changing many aspects of our life and forcing us to innovate or embrace the novel changes. The judiciary is not immune to this change. This article advocates for the adoption and popularization of online court. But there were several attempts at the adoption of technology in the working of courts even before the pandemic. Time has now come to its adoption on a wider scale.

    Three types of courts in our justice delivery system

    • First, conventional courts located in court complexes where judges, lawyers and litigants are physically present.
    • Second, online courts where the judge is physically present in the courtroom but the lawyer or litigant is not.
    • This is the present arrangement, except that now the courtroom is the residential office of the judge, due to the lockdown.
    • Third, virtual courts where there is no judge, lawyer or litigant and a computer takes a decision based on the inputs of the litigant.

    Pilot project with Tihar Jail

    • The pilot was for dealing with routine remand cases of prisoners.
    • The procedure postulated prisoners being produced in court, not physically but through video conferencing (VC), hence an online court.
    • The pilot project started tentatively with some hiccups but proved to be a success.
    • Now several courts have adopted the online process with varying degrees of commitment.

    District courts and High Courts’ adoption of online route

    • A few district judges have taken a step forward and recorded the statement of parties in cases of divorce by mutual consent.
    • As of now, several such cases, including those involving NRIs, are dealt with through VC in online courts.
    • Punjab and Haryana judges have gone even further ahead. The online courts record the expert evidence of doctors from PGIMER through VC.
    • This has freed the doctors from time-consuming trips to the courts and has resulted in savings of several crores for the exchequer.
    • A determined and concerted effort is necessary to popularise online courts at the district level.
    • Some high court judges in Delhi and Punjab and Haryana have completely dispensed with paper.
    • In these high courts, everything is on a soft copy, through e-Filing and scanned documents.
    • Lawyers and judges have made necessary adjustments to the new regime and the cases are conveniently heard and decided in “paperless courts”.
    • A few other high courts initiated similar steps, but have yet to institutionalise “paperless courts”.

    What are the problems?

    • Unfamiliarity with the medium of communication is the major issue. Judges are simply not used to consciously facing a camera generally and in particular while hearing a case.
    • Similarly, lawyers find it difficult to comfortably argue while seated.
    • Body language, facial expressions, the tone and tenor, both of the judge and the lawyer, make for important signals and clues which cannot be captured in VC.
    • Some technical problems in conducting online hearings have also surfaced. The bandwidth is not adequate or stable enough.
    • The picture sometimes breaks or gets frozen and the voice often cracks.
    • Consultations are also a problem. Lawyers occasionally need to consult their client or the instructing advocate; judges also need to consult each other during a hearing.
    • Attention needs to be paid to these real-time issues otherwise lawyers will harbour misgivings about a fair hearing.
    • The chairman of the Bar Council of India has voiced a concern that 90 per cent of the lawyers are not computer literate or tech-savvy.

    eCourts Project: A virtual court

    • A virtual court is a unique contribution of the eCourts Project.
    • A pilot virtual court was launched in August 2018 in Delhi for traffic offences and it has been a great success.
    • Virtual courts have been successfully tried out in Delhi, Haryana, Maharashtra and Tamil Nadu.
    • A virtual court is a simple programme through which a person can find out if a challan has been issued to him or her through a search facility.
    • If a challan has been issued, the details are available online and the person may plead guilty or not guilty.
    • On a guilty plea, the minimum fine is imposed and on a not-guilty plea, the case is electronically transferred to the traffic court for trial.
    • At the end of the day, a judge reviews the cases and disposes of them electronically depending on the option exercised.
    • One judge is all it takes to manage the virtual court for Delhi or an entire state.
    • With the launch of virtual courts, the daily footfalls to the courts have drastically reduced and thousands have pleaded guilty and paid the fine electronically.

    Potential of the virtual courts

    • The virtual court system has the potential of being upscaled and other petty offences attracting a fine such as delayed payments of local taxes or compoundable offences can also be dealt with by virtual courts.
    • This will ease the burden on conventional courts and therefore must be strongly encouraged.

    Consider the question- “Covid-19 pandemic has been forcing judiciary for faster adoption of technology. Discuss the issues and advantages of the adoption of technology such as video conferencing by the judiciary”

    Conclusion

    Post lockdown, justice delivery will certainly undergo a transformation. And judges, lawyers and litigants will need to adapt to the new normal. Several countries and courts have made adjustments not only for the period of the pandemic or lockdown but also for the future. We should certainly not be left behind but must also make a roadmap to meet the challenge.

  • Opportunity to strengthen the 73rd and 74th amendment

    The article brings to the fore untapped potential held by the panchayats and municipalities. However, there is a need for devolution in letter and spirit by the states to tap this potential. The article explains how the panchayats and municipalities could contribute effectively in the fight against Covid-19.

    Cooperative federalism amid COVID-19

    • An unintended but welcome consequence of the struggle against COVID-19 is that the “confrontational federalism” is on the decline with the revival of “cooperative federalism”.
    • There is a realisation that there is no way the COVID-19 situation can be tackled except through a measure of cooperation between the Centre and the states.
    • Consultative process: The Centre is offering flexibility to states to adopt guidelines to their respective circumstances and states are accepting guidelines from the Centre.
    • A principal reason for Kerala’s amazing performance in “flattening the curve” is their robust system of effective devolution. Such devolution helped the Kudumbashree programme to function in association with the panchayats.

    The concept of 3 tier devolution: Centre-State-Panchayats

    • Article 243G provides that state legislatures “may, by law, endow the Panchayats with such powers and authority as may be necessary to enable them to function as institutions of self-government”. 
    • This means state governments cannot and must not treat panchayats as extensions of the state government but as “institutions of (local) self-government”.
    • The logic of “cooperative federalism” is that states must function not as implementation arms of the central government but as autonomous units within the federation.
    • By the same logic panchayats too must be conceived not as an extension of state governments but as “units of self-government”. 
    • It is thus that panchayats need to be brought into the three-tier devolution system envisaged in the Constitution: Centre-State-Panchayats (and municipalities).

    How could devolution help in the fight against Covid-19?

    • In line with the rising cooperation between the Centre and the states, the focus should be on further devolution in keeping with the constitutional obligations under the 73rd and 74th amendments.
    • The starting point could best be Entry 23 of the Eleventh Schedule that reads, “Health, sanitation, including hospitals, primary health centres and dispensaries”
    • Entry 23 is among the list of 29 subjects illustratively set out for devolution to the panchayats, subject to conformity legislation being enacted by state legislatures.
    • All state legislation has included this subject for devolution.
    • Therefore, empowering the panchayats in this regard with functions, finances and functionaries is now a statutory obligation under state law under Article 243G.
    • With the migrant workers returning to their native villages, it is important to fully involve village panchayats and municipalities as “institutions of self-government” – 243W in the anti-COVID-19 campaign.
    • Entry 28 of the Eleventh Schedule mentions the “public distribution system” as among the subjects for devolution.
    • There are many other entries in the Schedule that are relevant to this exercise.
    • There is an army of 32 lakh elected representatives in the panchayats and about two lakh more in the municipalities to contribute in the fight against Covid-19.
    • Well over a third of them, some 10-12 lakh, are drawn from the Scheduled Castes and Tribes and, therefore, in touch with the most destitute in every village and town.
    • There are some 14 lakh women who have established themselves by election as village leaders. 
    • Imagine a constructive role such women can play as “front-line workers” in the battle against the coronavirus.
    • The most important requirement is planning to receive the migrant labour influx.
    • Last-mile delivery can only be comprehensively ensured by empowered panchayats and municipalities reporting to their respective gram sabhas and ward sabhas mandated under Articles 243 A and 243 S.
    • Planning for withstanding the ingress of COVID-19 requires the full deployment of the mechanisms for district planning envisaged in Article 243 ZD.

    Consider the question asked by the UPSC in 2018-“Assess the importance of the Panchayat system in India as a part of local government. Apart from government grants, what sources the Panchayat can look out for financing developmental projects?”

    Conclusion

    As the cooperative federalism underlines India’s fight against Covid-19, devolution to the third tier –panchayats and municipalities would give a much needed fillip to the fight against Covid-19.

    Back2Basics: 73rd and 74th Amendments

    • 73rd and 74th Constitutional Amendments were passed by Parliament in December, 1992.
    • Through these amendments local self-governance was introduced in rural and urban India.
    • The Acts came into force as the Constitution (73rd Amendment) Act, 1992 on April 24, 1993 and the Constitution (74th Amendment) Act, 1992 on June 1, 1993.
    • These amendments added two new parts to the Constitution, namely, 73rd Amendment added Part IX titled “The Panchayats” and 74th Amendment added Part IXA titled “The Municipalities”.
    • The Local bodies–‘Panchayats’ and ‘Municipalities’ came under Part IX and IXA of the Constitution after 43 years of India becoming a republic.

    Salient Features

    • Basic units of democratic system-Gram Sabhas (villages) and Ward Committees (Municipalities) comprising all the adult members registered as voters.
    • Three-tier system of panchayats at village, intermediate block/taluk/mandal and district levels except in States with population is below 20 lakhs (Article 243B).
    • Seats at all levels to be filled by direct elections [Article 243C (2)].
    • Seats reserved for Scheduled Castes (SCs) and Scheduled Tribes (STs) and chairpersons of the Panchayats at all levels also shall be reserved for SCs and STs in proportion to their population.
    • One-third of the total number of seats to be reserved for women. Onethird of the seats reserved for SCs and STs also reserved for women. One-third offices of chairpersons at all levels reserved for women (Article 243D)
    • Uniform five year term and elections to constitute new bodies to be completed before the expiry of the term. In the event of dissolution, elections compulsorily within six months (Article 243E).