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Subject: Polity

  • Central Administrative Tribunal (CAT) bench for the UT of J&K and Ladakh

    The union govt. has inaugurated the 18th Bench of Central Administrative Tribunal (CAT) for the Union Territories of Jammu and Kashmir and Ladakh.

    Try this question from our AWE initiative:

    “The Central Administration Tribunal which was established for redressal of grievances and complaints by or against central government employees nowadays is exercising its powers as an independent judicial authority.” Explain. (10 Marks)

    What is Central Administrative Tribunal (CAT)?

    • The Central Administrative Tribunal had been established under Article 323 – A of the Constitution for adjudication of disputes and complaints with respect to recruitment and conditions of service.
    • It aims to provide speedy and inexpensive justice to the aggrieved public servants.
    • It adjudicates for the persons appointed to public services and posts in connection with the affairs of the Union or other authorities under the control of the Government.
    • In pursuance of Article 323-A, the Parliament has passed the Administrative Tribunals Act in 1985.
    • The act authorizes the Central government to establish one Central Administrative Tribunal and the state administrative tribunals.

    Composition of the CAT

    • The CAT is a specialist body consisting of Administrative Members and Judicial Members who by virtue of their specialized knowledge are better equipped to dispense speedy and effective justice.
    • A Chairman who has been a sitting or retired Judge of a High Court heads the Central Administrative Tribunal.
    • There are now 18 Benches and 21 Circuit Benches in the CAT all over India.

    Its functioning

    • It exercises jurisdiction only in relation to the service matters of the parties covered by the Administrative Tribunals Act, 1985.
    • The Tribunal is guided by the principles of natural justice in deciding cases and is not bound by the procedure, prescribed by the Civil Procedure Code.
    • Under Section 17 of the Administrative Tribunal Act, 1985, the Tribunal has been conferred with the power to exercise the same jurisdiction and authority in respect of contempt of itself as a High Court.

    Independence of working

    • The conditions of service of the Chairman and Members are the same as applicable to a Judge of High Court as per the Administrative Tribunals (Amendment) Act, 2006.
    • The orders of CAT are challenged by way of Writ Petition under Article 226/227 of the Constitution before respective High Court in whose territorial jurisdiction the Bench of the Tribunal is situated.

  • Taking care of finances of local governments

    This article makes some suggestions to improve local finance and argues that the extant fiscal illusion is a great deterrent to mobilisation.

    Advantageous position in handling disasters

    • In terms of information, monitoring and immediate action, local governments are at an advantage, and eminently, to meet any disaster such as COVID-19.
    • While increasing the borrowing limits of the state form 3.5% of GDP to 5%, there was a recognition that local governments should be fiscally empowered immediately.
    • This is a valid signal for the future of local governance.

    4 challenges posed by Covid and addressing them collectively

    • COVID-19 has raised home four major challenges:1) economic, 2) health, 3) welfare/livelihood 4) resource mobilisation.
    • These challenges have to be addressed by all tiers of government in the federal polity, jointly and severally.

    Local government empowerment: 5 critical areas

    • 1) Own revenue is the critical lever of local government empowerment.
    • But the several lacunae that continue to bedevil local governance have to be simultaneously addressed.
    • 2) The new normal demands a paradigm shift in the delivery of health care at the cutting edge level.
    • 3) The parallel bodies that have come up after the 73rd/74th Constitutional Amendments have considerably distorted the functions-fund flow matrix at the lower level of governance.
    • 4) There is yet no clarity in the assignment of functions, functionaries and financial responsibilities to local governments.
    • Functional mapping and responsibilities continue to be ambiguous in many States.
    • Instructively, Kerala attempted even responsibility mapping besides activity mapping.
    • 5) The critical role of local governments will have to be recognised by all.

    Let’s look into resource mobilisation issue: 3 Heads

    • A few suggestions for resource mobilisation are given under three heads: 1) local finance, 2) Members of Parliament Local Area Development Scheme-MPLADs, 3) the Fifteenth Finance Commission (FFC).

    1. Local finance

    • Property tax collection with appropriate exemptions should be a compulsory levy and preferably must cover land.
    • The Economic Survey 2017-18 points out that urban local governments, or ULGs, generate about 44% of their revenue from own sources as against only 5% by rural local governments, or RLGs.
    • Per capita own revenue collected by ULGs is about 3% of urban per capita income while the corresponding figure is only 0.1% for RLGs.
    • There is a yawning gap between tax potential and actual collection, resulting in colossal underperformance.
    • When they are not taxed, people remain indifferent.
    • LGs, States and people seem to labour under a fiscal illusion.
    • In States such as Uttar Pradesh, Bihar and Jharkhand, local tax collection at the panchayat level is next to nil.
    • Property tax forms the major source of local revenue throughout the world.
    • All States should take steps to enhance and rationalise property tax regime.
    • A recent study by Professor O.P. Mathur shows that the share of property tax in GDP has been declining since 2002-03.
    •  The share of property tax in India in 2017-18 is only 0.14% of GDP as against 2.1% in the Organisation for Economic Co-operation and Development (OECD) countries.
    • If property tax covers land, that will hugely enhance the yield from this source even without any increase in rates.

    Other 2 options for raising finances

    • 1) Land monetisation and betterment levy may be tried in the context of COVID-19 in India. To be sure, land values have to be unbundled for socially relevant purposes.
    • 2) Municipalities and even suburban panchayats can issue a corona containment bond for a period of say 10 years.
    • We are appealing to the patriotic sentiments of non-resident Indians and rich citizens.
    • Needless to say, credit rating is not to be the weighing consideration.
    • That the Resurgent India Bond of 1998 could mobilise over $4 billion in a few days encourages us to try this option.

    2) MPLADS

    • The suspension of MPLADS by the Union government for two years is a welcome measure. The annual budget was around ₹4,000 crore.
    • The Union government has appropriated the entire allocation along with the huge non-lapseable arrears.
    • MPLADs, which was avowedly earmarked for local area development, must be assigned to local governments, preferably to panchayats on the basis of well-defined criteria.

    3) Fifteenth finance commission-FFC

    • A special COVID-19 containment grant to the LGs by the FFC to be distributed on the basis of SFC-laid criteria is the need of the hour.
    • The commission may do well to consider this.
    • The local government grant of ₹90,000 crore for 2020-2021 by the FFC is only 3% higher than that recommended by the Fourteenth Finance Commission.
    • Building health infrastructure and disease control strategies at the local level find no mention in the five tranches of the packages announced by the Union Finance Minister.

    Suggestions related to grants

    • The ratio of basic (i.e. with no conditions) to tied (with condition)grant is fixed at 50:50 by the commission.
    • In the context of the crisis under way, all grants must be untied  for freely evolving proper COVID-19 containment strategies locally.
    • The 13th Finance Commission’s recommendation to tie local grants to the union divisible pool of taxes to ensure a buoyant and predictable source of revenue to LGs (accepted by the then Union government) must be restored by the commission.

    Consider the question “The stable source of revenue for the local government bodies whether from their own sources or in the form of grants should lie at the heart of efforts to empower them. Comment.”

     Conclusion

    COVID-19 has woken us up to the reality that local governments must be equipped and empowered. Relevant action is the critical need.

    B2BASICS:

    73rd and 74th Amendment Acts, 1993

    • It’s been 25 years since decentralized democratic governance was introduced in India by the 73rd and 74th Constitution Amendments, which came into force on April 24 and June 1, 1993, respectively.
    • The 73rd Amendment to the Constitution (Part IX) has given constitutional status to the Panchayats, and has provided it with a substantial framework. It envisions the Panchayats as the institutions of local self-governance and also the universal platforms for planning and implementing programmes for economic
      development and social justice.
    • The creation of lakhs of “self-governing” village panchayats and gram sabhas, with over three million elected representatives mandated to manage local development, was a unique democratic experiment.
    • Article 243A gives constitutional recognition to the Gram Sabha as a body consisting of persons registered in the electoral rolls relating to a village comprised within the area of the Panchayat at the village level.
    • The 74th Amendment Act provided for the constitution (Part IXA) of three types of municipalities in urban areas depending upon the size and area.
    • The Constitution provides for a complete institutional mechanism including reservation for women and formation of State Finance Commissions (SFCs) for local democracy.

  • Gairsain to be Uttarakhand new Summer Capital

    The Uttarakhand Governor has given her assent for declaration of Bhararisen (Gairsain) in Chamoli district as its summer capital.

    Practice question:

    Q. Discuss the feasibility of having multiple administrative capitals for some states in India.

    Gairsain

    • Gairsain is situated at the eastern edge of the vast Dudhatoli mountain range, located almost at the centre of the state, at a distance of approximately 250 kilometres from Dehradun.
    • It is easily accessible from both the Garhwal and the Kumaon divisions, and in a way, acts as the bridge between the two regions.
    • The state Assembly is located in Dehradun, but sessions are held in Gairsain as well.

    Why Gairsain is held as summer capital?

    • Gairsain was best suited to be the capital of the mountainous state as it was a hilly region falling on the border of Kumaon and Garhwal regions.
    • Even when Uttarakhand was carved out as a separate state from UP on November 9, 2000, statehood activists had contended that Gairsain was best suited to be the capital.
    • But it was Dehradun in the plains that were named the temporary capital. The issue is largely political.

    What are the other examples of multiple capital cities?

    • Several countries in the world have implemented the concept.
    • In Sri Lanka, Sri Jayawardenepura Kotte is the official capital and seat of the national legislature, while Colombo is the de facto seat of the national executive and judicial bodies.
    • Malaysia has its official and royal capital and seat of the national legislature at Kuala Lumpur, and Putrajaya is the administrative centre and seat of the national judiciary.
    • Among Indian states, Maharashtra has two capitals– Mumbai and Nagpur (which holds the winter session of the state assembly).
    • Himachal Pradesh has capitals at Shimla and Dharamshala (winter).
    • The former state of Jammu & Kashmir had Srinagar and Jammu (winter) as capitals (remember Darbar Move).

    Also read:

    https://www.civilsdaily.com/news/concept-of-three-capitals-in-andhra-pradesh/

  • Article 1 of the Indian Constitution

    The Supreme Court has ordered that a plea to change India’s name exclusively to ‘Bharat’ be converted into a representation and forwarded to the Union government for an appropriate decision.

    Note:

    Whenever such articles are in news, make sure to revise entire Part. Like in this case Part I –  Articles 1, 2, 3 and 4. See the B2b section.

    What is the issue?

    • The petition seeks an amendment to Article 1 of the Constitution, which says “India, that is Bharat, shall be a Union of States…”
    • It wants ‘India’ to be struck off from the Article.

    Article 1 of the Constitution

    • Article 1 in the Constitution states that India, that is Bharat, shall be a Union of States.
    • The territory of India shall consist of: The territories of the states, The Union territories and Any territory that may be acquired in future.

    The names of the States and the Unions have been described in the First Schedule. This schedule also holds that there are four Categories of State and territories – Part A, Part B, Part C and Part D.

    • Part A – includes the nine provinces which were under British India
    • Part B – princely states consisted of this category
    • Part C – centrally administered five states
    • Part D – Andaman and Nicobar Islands

    Abolishing of these schedules

    • In the seventh amendment of the Constitution in 1956, the distinction between Part A and Part B states was abolished.
    • Subsequently, states were reorganized on a linguistic basis.
    • As a result, several new states were formed, eg. Haryana, Goa, Nagaland, Mizoram etc. At present, there are 28 States and 8 UTs (corrected).

    Debate over name change

    • Bharat and India are both names given in the Constitution. India is already called ‘Bharat’ in the Constitution”.
    • The petition says that India is a name of foreign origin. The name can be traced back to the Greek term ‘Indica’.
    • The word ‘Bharat’ is closely associated with our Freedom Struggle as the cry was ‘Bharat Mata ki Jai’.
    • Chauvinists argue that the name change will ensure citizens to get over the colonial past and instil a sense of pride in our nationality.

    What 2016 ruling has to say?

    • The apex court had dismissed a similar petition in 2016.
    • Then CJI T.S. Thakur orally remarked that every Indian had the right to choose between calling his country ‘Bharat’ or ‘India’.
    • CJI said that the Supreme Court had no business to either dictate or decide for a citizen what he should call his country.

    Back2Basics

    Article 2

    • Article 2 states that the parliament may, by law, admit new states into the Union of India or establish new states on terms and conditions it deems fit.
    • For e.g. the addition of the State of Sikkim by the 35th (1974) and 36th (1975) constitutional amendments.

    Article 3

    • Article 3 empowers the parliament to form a new state by separation of a part of the territory of an established state or to unite two or more states or parts of states or by uniting any territory to a part of any state.
    • This article provides that area of any state can reduced or increased and alter the boundaries or change the name of a state.
    • Even though the state boundaries are subject to change, their area cannot be acquired by a foreign state.
    • There is also a saving clause in the article to protect the rights of the state.
    • The first condition is that no bill for the purpose can be introduced in either house except on the recommendation of the President of India.
    • Second, whether the proposal contains the alternation of the area, boundaries or name of the state mentioned, it has to refer by President to the Legislatures of concerned states, for expressing opinions.
    • Such opinion has to be expressed within a period specified by the President. In any case, the views expressed do not bind the decisions of either the President or the Parliament

    Article 4

    • This article specifies that the laws provided in article 2 and 3, admission/establishment of new states and alteration of names, areas and boundaries etc. of established states, are not to be considered amendments of the Constitution under article 368.
    • It means these can be passed without resorting to any special procedure and by a simple majority.

  • What is Inner Line Permit (ILP) and what is its CAA context?

    The Supreme Court has declined to stay the operation of a Presidential order which petitioners claimed deprived Assam of the powers to implement the Inner Line system in its districts and limit the applicability of the Citizenship (Amendment) Act.

    Try this:

    Q. The NRC fails to resolve the illegal immigration issue in Assam. Critically Analyse.

    In light of the ongoing pandemic, the fumes of protests over NRC/CAA have somewhat vanished. However, one must not forget the fundamental linkages between the NPR/NRC/CAA/ILP etc.

    The Inner Line

    • A concept drawn by colonial rulers, the Inner Line separated the tribal-populated hill areas in the Northeast from the plains.
    • To enter and stay for any period in these areas, Indian citizens from other areas need an Inner Line Permit (ILP).
    • Arunachal Pradesh, Nagaland and Mizoram are protected by the Inner Line, and lately, Manipur was added.
    • The concept originates from the Bengal Eastern Frontier Regulation Act (BEFR), 1873.

    Its inception

    • The policy of exclusion first came about as a response to the reckless expansion of British entrepreneurs into new lands which threatened British political relations with the hill tribes.
    • The BEFR prohibits an outsider’s — “British subject or foreign citizen” — entry into the are beyond the Inner Line without a pass and his purchase of land there.
    • On the other hand, the Inner Line also protects the commercial interests of the British from the tribal communities.
    • After Independence, the Indian government replaced “British subjects” with “Citizen of India”.
    • Today, the main aim of the ILP system is to prevent settlement of other Indian nationals in the States where the ILP regime is prevalent, in order to protect the indigenous/tribal population.

    How is it connected to the Citizenship Amendment Act?

    • The CAA, which relaxes eligibility criteria for certain categories of migrants from three countries seeking Indian citizenship, exempts certain categories of areas, including those protected by the Inner Line system.
    • Amid protests against the Act, the Adaptation of Laws (Amendment) Order, 2019, issued by the President, amended the BEFR, 1873, extending it to Manipur and parts of Nagaland that were not earlier protected by ILP.

    What is the petition now?

    • The petition was against the Presidential order. It said the order took away the Assam government’s permissive power to implement the ILP.
    • This could have made the CAA inapplicable in these areas, the petition said.
    • The CAA has given fresh legs to the demand.

  • Overseas Citizenship of India (OCI) Visa Issue

    In a bid to allay fears of the OCI cardholders over the temporary suspension of their long-term visas, the Ministry for External Affairs has said the government will soon take an appropriate decision.

    UPSC may ask a statement based question in prelims considering various privileges of the OCI cardholders.

    What is the issue?

    • A large number of Indian citizens whose children are OCI cardholders and several people of Indian-origin having the card are unable to travel to India, even for emergency reasons, because of the temporary suspension of their long-term visa.

    Who is an Overseas Citizen?

    • An OCI is a category introduced by the government in 2005.
    • Persons of Indian Origin (PIOs) of certain categories as specified in the Citizenship Act, 1955 are eligible for being OCI cardholders.
    • Some of the benefits for PIO and OCI cardholders were different until 2015 when the government merged these two categories.
    • The MHA defines an OCI as a person who was a citizen of India on or after January 26, 1950; or was eligible to become a citizen of India on that date; or who is a child or grandchild of such a person, among other eligibility criteria.
    • According to Section 7A of the OCI card rules, an applicant is not eligible for the OCI card if he, his parents or grandparents have ever been a citizen of Pakistan or Bangladesh.

    Privileges to an OCI

    • OCI cardholders can enter India multiple times, get a multipurpose lifelong visa to visit India, and are exempt from registering with Foreigners Regional Registration Office (FRRO) no matter how long their stay.
    • If an individual is registered as an OCI for a period of five years, he/she are eligible to apply for Indian citizenship.
    • At all Indian international airports, OCI cardholders are provided with special immigration counters.
    • OCI cardholders can open special bank accounts in India, they can buy the non-farm property and exercise ownership rights and can also apply for a driver’s license and PAN card.
    • However, OCI cardholders do not get voting rights, cannot hold a government job and purchase agricultural or farmland.
    • They cannot run for public office either, nor can they travel to restricted areas without government permission.

    Back2Basics

    https://www.civilsdaily.com/news/explained-how-an-indian-citizen-is-defined/

  • 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 ₹50,000. 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.