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Subject: Polity

  • When does Speaker suspend MPs from Lok Sabha?

    Seven MPs of a political party were suspended for unruly behaviour in the Lok Sabha. The motion was passed by a voice vote.

    What is the reason for suspending an MP?

    • The general principle is that it is the role and duty of the Speaker of Lok Sabha to maintain order so that the House can function smoothly.
    • This is a daunting task even at the best of times.
    • In order to ensure that proceedings are conducted in the proper manner, the Speaker is empowered to force a Member to withdraw from the House (for the remaining part of the day), or to place him/her under suspension.

    What are the rules under which the Speaker acts?

    Rule Number 373 of the Rules of Procedure and Conduct of Business says:

    • The Speaker, if is of the opinion that the conduct of any Member is grossly disorderly, may direct such Member to withdraw immediately from the House, and any Member so ordered to withdraw shall do so forthwith and shall remain absent during the remainder of the day’s sitting.

    To deal with more recalcitrant Members, the Speaker may take recourse to Rules 374 and 374A. Rule 374 says:

    1. The Speaker may, it deems it necessary, name a Member who disregards the authority of the Chair or abuses the rules of the House by persistently and wilfully obstructing the business thereof.
    2. If a Member is so named by the Speaker, the Speaker shall, on a motion being made forthwith put the question that the Member (naming such Member) be suspended from the service of the House for a period not exceeding the remainder of the session: Provided that the House may, at any time, on a motion being made, resolve that such suspension be terminated.
    3. A member suspended under this rule shall forthwith withdraw from the precincts of the House.

    What is the procedure for revocation of a Member’s suspension?

    • While the Speaker is empowered to place a Member under suspension, the authority for revocation of this order is not vested in her.
    • It is for the House, if it so desires, to resolve on a motion to revoke the suspension.

    What happens in Rajya Sabha?

    • Like the Speaker in Lok Sabha, the Chairman of the Rajya Sabha is empowered under Rule Number 255 of its Rule Book to “direct any Member whose conduct is in his opinion grossly disorderly to withdraw immediately” from the House.
    • Any Member so ordered to withdraw shall do so forthwith and shall absent himself during the remainder of the day’s meeting.
    • The Chairman may name a Member who disregards the authority of the Chair or abuses the rules of the Council by persistently and wilfully obstructing business.
    • In such a situation, the House may adopt a motion suspending the Member from the service of the House for a period not exceeding the remainder of the session.
    • The House may, however, by another motion, terminate the suspension.
    • Unlike the Speaker, however, the Rajya Sabha Chairman does not have the power to suspend a Member.

    Way Forward: Striking a balance

    • There can be no question that the enforcement of the supreme authority of the Speaker is essential for smooth conduct of proceedings. A balance has to be struck.
    • However, it must be remembered that her job is to run the House, not to lord over it.
    • The solution to unruly behaviour has to be long-term and consistent with democratic values.
    • A step in that same direction could be to discontinue the practice of herding people out of the visitors’ gallery when the House witnesses chaos.
    • So, the ruling party of the day invariably insists on the maintenance of discipline, just as the Opposition insists on its right to protest. And their positions change when their roles flip.

  • Gairsain as new summer capital of Uttarakhand

     

     

    Uttarakhand govt names Gairsain as the new summer capital of the state.

    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.
    • Uttarakhand was carved out as a separate state from Uttar Pradesh in 1998.
    • 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.
    • But it was Dehradun, located in the plains that served as the temporary capital.
    • With the fresh announcement, there is no clarity on either the city’s current status or a new winter capital.
    • The state Assembly is located in Dehradun, but sessions are held in Gairsain as well.

  • A blow against social justice

    Context

    The recent verdict of a two-judge Supreme Court Bench on reservations and Scheduled Caste and Scheduled Tribes promotions — has mainly raised four constitutional questions.

    The first question-Whether reservation in promotions is a fundamental right or not. 

    • Scope for the reservation: Addressing the first question, the scope for reservation for the Backward Classes is promised in Part III of the Constitution under Fundamental Rights.
      • Articles 16(4) and 16(4A) which empowers the state to provide reservation for SCs and STs are a part of the section, “Equality of opportunity in matters of public employment”.
      • The right to equality is also enshrined in the Preamble of the Constitution. Many construe that the reservation is against Article 16 (Right to equality).
    • The basis for the reservation: One should understand that the absence of equal opportunities for the Backward Classes due to historic injustice by virtue of birth entails them reservation.
      • In other words, the right to equality is the basis of reservation as there is no level-playing field among castes.
      • Articles 16 (2) and 16(4) are neither contradictory nor mutually exclusive in nature. In fact, they are complementary to each other; even Article 16(4) is not a special provision.
    • Whether reservation should be applied in promotions?
      • The answer is yes because, in India, where there is a peculiar hierarchical arrangement of caste, it is conspicuous that SCs and STs are poorly represented in higher posts.
      • Confined to lower cadre jobs: Denying application of reservation in promotions has kept SCs and STs largely confined to lower cadre jobs. This is even seen in the higher judiciary.
      • Hence, providing reservation for promotions is even more justified and appropriate to attain equality.
      • Need of the reservation at every level: The question of law is not about enabling reservations in promotions or not, but this judgment destabilises the very basis of reservation; when there is no direct recruitment in higher posts, the implementation of the reservation is justified at every level to get a reasonable representation.
      • Subdivision of reservation not correct: It is not correct to subdivide the scope of reservation at the entry-level and in promotions; this delineation will only lead to confusion in the implementation of reservation.
      • Now, by declaring that reservation cannot be claimed as a fundamental right is a dangerous precedent in the history of social justice.

    The second question- Can a court issue a mandamus to the state for providing reservation?

    • Will it be appropriate for the courts to issue a mandamus in this regard?
      • This is inappropriate because when the court is empowered to pass orders to create extra seats every year for forward-caste students who claim to be affected by reservation, why cannot it direct the state to provide reservation in promotions?
    • Use of powers under Article 142: The Supreme Court has extraordinary powers under Article 142, which empowers the Court to pass any order necessary for doing “complete justice in any cause or matter pending before it”.

    Third question-Necessity of quantifiable data

    • Data to prove inadequate representation: The next question is about the necessity of quantifiable data to show an inadequate representation of reserved category people.
    • Article 16 addresses the question: This question has been addressed in the Constitution. Article 16(4) reads: “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.”
    • How “opinion of the State” should be construes: Here, “in the opinion of State” should not be construed as the discretion of the state to give the reservation or not; on the contrary, if the state feels that SCs and STs are under-represented, then it is in the domain of the state to provide reservation.
    • Quantifiable data for exceeding the 50% limit: In the Indra Sawhney vs Union of India case (Mandal Commission) the idea of quantifiable data on inadequate representation was applied for exceeding the 50% cap for reservation; within 50% where the existing quotas for SCs and STs are accommodated were not affected.
      • Responsibility to collect data on the State: The responsibility of collecting data on representation by the Backward Classes lies with the state.
      • Pathetically, the last caste-based census was in 1935, and in the pre-Independence era, by the British government.
      • No caste-based census in India: After Independence, no government has had the inclination to conduct a caste-based census due to political reasons.
      • Even if a caste-based census is collected, the population and proportionate representation of SCs and STs will be low. For this reason alone, a proper caste-based census has not been conducted in independent India.
      • No mention of quantifiable data: Moreover, Article 16(4) clearly mentions that if the state, in its opinion, feels that SCs and STs are not adequately represented, then it can provide reservation for them. There is no mention of “quantifiable data” in the Constitution. Even after 70 years of SC/ST reservation, their representation is as low as 3%.

    Fourth question-Whether it is the obligation of the state to give reservation?

    • Obligatory on the government: Finally, if the argument is that it is not binding on the state to give reservation, it must be noted that when reservation rights are in Part III as Fundamental Rights, it is the obligation of the state to ensure reservation to the underprivileged.
    • Interpretation as obligatory provisions: This judgment has interpreted Articles 16 (4) and 16(4A) only as enabling provisions.
    • Enabling provisions mean that these provisions empower the state to intervene; it does not mean the state is not bound to provide it.
    • Interpreting the Constitution by paraphrasing and selective reading is dangerous.

     Administrative efficiency

    • Reservation should not affect the efficiency of administration: More importantly, this judgment has raised a new point — that the decision of the State government to provide reservation for SC/STs should not affect the efficiency of administration.
      • This implies that the entry of SC/STs in the job market can reduce the quality of administration; this by itself is discriminatory.
    • No evidence to support the claim: There is no evidence that performance in administration is affected on account of caste.
    • There have been many attempts to dilute reservation in the past. But, this judgment appears to be debatable in the larger context and should be challenged in a constitutional bench.

    Conclusion

    In a country of parliamentary democracy, even the Constitution of India can be amended. If the government at the Centre has a genuine concern for SC/STs, it can amend the Constitution using its political majority.

  • Department-related Standing Committees (DRSCs)

    Fewer sittings of Parliament are compensated by the working of department-related standing committees (DRSCs) praised Rajya Sabha Chairman.

    What are Standing Committees?

    • Standing Committee is a committee consisting of Members of Parliament.
    • It is a permanent and regular committee which is constituted from time to time according to the provisions of an Act of Parliament or Rules of Procedure and Conduct of Business.
    • The work done by the Indian Parliament is not only voluminous but also of a complex nature, hence a good deal of its work is carried out in these Parliamentary Committees.
    • Standing Committees are of the following kinds :
    1. Financial Standing Committees (FSC)
    2. Department Related Standing Committees (DRSC)
    3. Others Standing Committees (OSC)

    About DRSCs

    • There are 24 Department-related Standing Committees (DRSCs). Each of these committees have 31 members – 21 from Lok Sabha and 10 from Rajya Sabha.
    • The 17 Departmentally Related Standing Committees were formally constituted with effect from April, 1993.
    • After experiencing the working of the DRSC system for over a decade, the system was restructured in July,2004 wherein the number of DRSCs was increased from 17 to 24.
    • These members are to be nominated by the Speaker of Lok Sabha or the Chairman of Rajya Sabha respectively. The term of office of these committees does not exceed one year.
    • These committees are serviced either by Lok Sabha secretariat or the Rajya Sabha secretariat depending on who has appointed the chairman of that committee.

    Equal to 10 House sittings

    • During a usual sitting of Parliament, the Houses are convened for six hours. Calculating it accordingly, the meeting of these committees amount to 10 sittings of Parliament.
    • Proportionately, the work done by the 16 Committees of Lok Sabha amounts to another 20 sittings of the Parliament.
    • In all, the work put in by the total 24 DRSCs in examining the Demands for Grants of all the ministries equals 30 days of functioning of the Parliament, which is quite significant.
    • If the working of the committees is taken into account for the entire year, it will amount to significantly higher number of days.

  • Still no finality, the third time round

    Context

    There are indications that the new Bodo accord does not spell closure of the statehood movement by Bodo groups.

    Power-sharing experiment under the Sixth Schedule

    • Sixth Schedule expected as a panacea: The experiment of power-sharing and governance under the Sixth Schedule of the Indian Constitution was expected to be the panacea of the ethno-nationalist identity questions in the Northeastern States.
    • Complexities of exclusion: Euphoria, as well as anger over the third Bodo Accord, have, however, held the mirror reflecting the complexities of exclusion of communities in such ethnocentric power-sharing and governance model.

    Specifics of the new Accord

    • The new Accord was signed by the All Bodo Students’ Union (ABSU), United Bodo People’s Organisation and all the four factions of the insurgent outfit- National Democratic Front of Bodoland (NDFB) with Delhi and Dispur on January 27.
      • It promises more legislative, executive and administrative autonomy under the Sixth Schedule to Bodoland Territorial Council (BTC) and expansion of the BTC territory in lieu of statehood.
    • The Bodoland Territorial Area District (BTAD), the autonomous region governed by BTC, will be known as Bodoland Territorial Region (BTR) after demarcation of the augmented territory.

    The emergence of the faultlines in the new Accord

    • What went wrong in the previous Accord? The previous Bodo Accord signed by the erstwhile insurgent outfit, Bodo Liberation Tigers (BLT) with Delhi and Dispur on February 10, 2003, led to the creation of the BTC as a new experiment of territorial autonomy under the Sixth Schedule.
      • No assent by the Governor to any BTC legislation: The constitutionally mandated legislative power of the BTC has been reduced to a farce as the Assam Governor has not given assent to any of the legislation passed by the BTC Legislative Assembly.
    • Intensification of demand for Kamatapur State: Bodo groups have suspended their statehood movement.
      • The new Bodo Accord has triggered the intensification of the movement for Kamatapur State by organisations of the Koch-Rajbongshi community.
      • Overlapping territory: The territory of the demanded Kamatapur State overlaps with the present BTAD, proposed BTR and demanded Bodoland.
    • Demand for ST status: Clamour for Scheduled Tribe (ST) status by the Koch-Rajbongshis, Adivasis and several other non-ST communities has also grown.
    • Faultlines over ST status: Deeper ethnic faultlines in an ethnocentric power-sharing model will become exposed when the Koch-Rajbongshis and the Adivasis are granted ST status, as promised by the government.
      • For, the reservation of seats of BTC is for the STs and not exclusively for the Bodos.
      • The new accord has no clear answer to such critical questions.
      • In BTAD, the ST communities account for 33.50% of the total population and the Bodos account for over 90% of the ST population in the BTAD.
      • The ST populations are an overwhelming majority in territories overseen by nine other autonomous councils under the Sixth Schedule in Assam, Meghalaya, Mizoram and Tripura.
    • Minority governing majority: Such a demographic composition in the BTAD has allowed the space for political mobilisation of other non-Bodo communities.
      • It also allowed the articulation of the campaign that the BTC is a faulty model as it allows the minorities to govern the majorities.
      • Exclusion demand: The organisations of these communities have been demanding exclusion of villages with less than 50% Bodo population from the BTAD.
    • Counter argument by Bodos: Bodo organisations have a counter-argument that non-Bodo is a political identity construction articulated to capture power in the BTAD by certain political forces.
    • The new accord promises to increase the current strength of BTC to 60 from 40 but “without adversely affecting the existing percentage of reservation for tribal[s]”.
    • Constitutional provision for dealing with such situations: Sub-paragraph 2 of the first paragraph of the Sixth Schedule provides that, “If there are different Scheduled Tribes in an autonomous district, the Governor may, by public notification, divide the area or areas inhabited by them into autonomous regions.”
      • However, constitutional amendments were made following the previous Bodo Accord to ensure that this provision shall not apply in respect of the BTAD.
    • What could be the solution to the present situation? The provision of setting up regional autonomous councils under the Sixth Schedule can be explored to create the space for communities aggrieved by exclusion from the power-sharing model of BTC.

    Provision of commission

    • The new accord promises to appoint a commission by the Assam government.
      • What the commission will deal with? It will look into the demands for inclusion of villages with ST majority and contiguous to the BTAD, and exclusion of villages which are contiguous to non-Sixth Schedule areas and have majority non-ST population.
      • However, the core area of the BTAD will continue to have many villages with majority non-ST population which were included for contiguity.

    Evaporating of euphoria over the accord

    • Failure in uniting the four factions: Euphoria among the Bodos over the accord is also fast evaporating with efforts to unite all the four factions of NDFB having turned futile.
      • The factions are divided into two camps.
      • The new accord will be the pivot of political mobilisation in the BTAD during the forthcoming BTC elections due in April.
    • Revival in homeland demand: A shift in the political equilibrium in the BTC resulting from a likely expansion of the ST list in Assam has the potential to keep the Bodos out of power in the BTC and push Bodo organisations to revive their homeland demand

    Conclusion

    Peace will continue to be fragile in Assam’s Bodo heartland until an all-inclusive power-sharing and governance model is evolved under the provisions of the Sixth Schedule.

     

     

     

     

  • When a court pronounces a verdict, without giving reasons

    Context

    In a highly unusual move, a nine-judge Bench of the Supreme Court resorted to a non-speaking order as it ruled affirmatively on the preliminary issue arising out of the Sabarimala review petition.

    Departure from norms

    • The importance of a ‘reasoned decision’ in a constitutional democracy committed to the rule of law, is self-evident.
      • Its importance cannot be overstated and this curious departure from the norm merits close analysis.
    • Time and again, the Supreme Court has unequivocally endorsed and underlined the requirement of giving reasons in support of the order.
      • The SC has often chastised subordinate institutions for their failure to supplement their orders with reasons.

    Importance of ‘reasoned decision’

    • The juristic basis for the ‘reasoned decision’: The juristic basis for this has also been explored in a number of cases.
    • In various decisions, the court has ruled that speaking orders promote-
      • Judicial accountability and transparency.
      • Inspire public confidence in the administration of justice; and
      • Introduce clarity and minimise the chances of arbitrariness.
    • Quotes from various judgements: In addition to being a “healthy discipline for all those who exercise power over others”, recording of reasons has been described by the Supreme Court as the “heartbeat of every conclusion”; the “life blood of judicial decision making”; and a cherished principle of “natural justice”.
    • The Madhya Pradesh Industries Ltd case: In this case Justice Subba Rao K. stated:
      • “The condition to give reasons introduces clarity and excludes or at any rate minimises arbitrariness;”
      • “… it gives satisfaction to the party against whom the order is made; and it also enables an appellate or supervisory court to keep the tribunals within bound… Speaking order will at its best be reasonable and at its worst be at least a plausible one.”

    Devaluation by the SC and implications

    • Implicit rules: The need for a court to provide an intellectual substrate for its decisions is also implicit in the expression “pronounce judgment” in Supreme Court Rules, 2013.
      • According to settled decisions, the same signifies “judicial determination by reasoned order”.
    • However, when it came to applying the principle to its own verdict, the apex court has inadvertently devalued the importance of concurrent reporting of reasons.
      • The court seems to have downplayed the fact that it may be coming across as inarticulate at best and indecisive at worst.
    • Undermining integrity: Besides undermining institutional integrity, a decision’s authority as a binding precedent is also potentially compromised by this omission.

    Culture of justification

    • The term “transformative constitutionalism” has recently found currency in constitutional adjudication (Navtej Joharand Joseph Shine).
      • The Supreme Court is yet to articulate a comprehensive theory of the concept but it has been fleshed out in other jurisdictions.
    • From authority to justification: For example, Pius Langa, former Chief Justice of the Constitutional Court of South Africa, argued that “transformative constitutionalism” entails a transformation of legal culture from one “based on authority” to the one “based on justification”.
    • Karl Klare (the scholar who coined the term) posited that it may be legitimately expected of constitutional adjudication to “innovate and model intellectual and institutional practices appropriate to a culture of justification”.

    Conclusion

    In light of the above, it can be concluded that the practice of issuing non-speaking orders and giving post-hoc rationalisations later is an anathema to the principle of constitutional governance. Duty to give reasons is an incident of the judicial process and constitutional justice should not be a matter of afterthought.

     

     

     

  • Explained: Assam-Mizoram Boundary Dispute

     

    Assam is at the centre of a fresh inter-State border row in the northeastern region. The Mizoram government has sought the revision of the boundary with Assam, based on the Bengal Eastern Frontier Regulation (BEFR) of 1873 and the Inner Line of the Lushai Hills Notification of 1993.

    Background

    • Since 1962 most of the state borders of states carved out of Assam were divided following the myopic vision of the Central government.
    • On ground these borders still do not run in sync with the tribal territories and identities, creating repetitive conflicts in the region and disturbing its peace.
    • Assam finds itself at the center of all the conflicts since most of the neighboring states were carved out of its territory since independence.
    • This was done to consolidate the Indian Union at the time by catering to the aspirations of the local tribes and including them in the mainstream by giving them independent statehoods.

    What is the dispute?

    • Mizoram shares a 123-km border with southern Assam and has been claiming a 509-square mile stretch “occupied” by the neighbouring State.
    • Mizoram used to be the Lushai Hills district of Assam before being made a Union Territory in 1972 and a State in 1987.
    • Both States have been disputing an extensive stretch of this boundary.

    About Bengal Eastern Frontier Regulation

    • The Inner Line Regulations, commonly referred to as the Inner Line Permit system (ILP), first gained legal effect through the Bengal Eastern Frontier Regulation, 1873.
    • At present the BEFR continues to apply, but only in present-day Arunachal Pradesh, Nagaland and Mizoram.
    • It had been lifted in the whole of Assam, as well as the entirety of present-day Meghalaya.
    • The BEFR allows Arunachal Pradesh, Manipur, Mizoram and Nagaland not to let non-resident Indians in without an inner-line permit for a temporary stay.

    Present status of ILP

    • The Foreigners (Protected Areas) Order, 1958 is the modern embodiment of the ILP.
    • This Order was passed in furtherance of the Foreigners Act, 1946.
    • The Order defined the ‘inner line’ throughout present-day India starting from Jammu and Kashmir and ending at Mizoram.
    • This inner line is different from the one envisioned in the Bengal Frontier Regulations.
    • This line represents the furthest point up to the international border where a foreigner can visit on the strength of a visa alone.

  • More psychological than an empowering voter option

    Context

    The recently-concluded Delhi Assembly elections were the 45th Assembly polls since the inception of the none of the above (NOTA) option in 2013. And Delhi, although mostly urban, is widely regarded as the microcosm of India.

    NOTA in Delhi

    • Delhi’s preference to NOTA is less than the national average.
    • From 0.63% in 2013, Delhi polled 0.39% of those favouring NOTA in 2015, a statistically significant reduction indeed.
      • It now increased to 46% in 2020; again statistically significant.
    • While 96% of the constituencies had a reduced percentage of NOTA votes in 2015 than 2013, the NOTA percentage has increased in 71% constituencies this year.
    • In the Lok Sabha elections, Delhi polled 0.47% and 0.52% of those favouring NOTA, in 2014 and 2019, respectively.
    • Takeaway: Roughly one in 200 voters of Delhi opted for NOTA in the last six to seven years, with relatively larger support for NOTA in reserved constituencies.

    Gujarat and Maharashtra examples

    • Interestingly, in the 2017 Gujarat Assembly elections, despite being 1.8%, NOTA got more votes than any political party other than the Indian National Congress and the Bharatiya Janata Party (except the Independents).
    • Again, in the 2019 Maharashtra Assembly election, NOTA became a runner-up in two constituencies – Latur (Rural) and Palus-Kadegaon.
    • Do these cases mark any significant shift in the voter mindset?

    Essence and scope of NOTA

    • Not a right to reject: In 2013, India became the 14th country to institute negative voting through NOTA.
      • However, it is not a “right to reject”.
    • Toothless option: NOTA in India is a toothless option.
      • Former Chief Election Commissioner of India S.Y. Quraishi, had observed in an article: “Even if there are 99 NOTA votes out of a total of 100, and candidate X gets just one vote, X is the winner, having obtained the only valid vote. The rest will be treated as invalid or ‘no votes’.”
    • Not right to select: NOTA enfeebles the electorate as it does not empower to “select” either.
    • Democratic means to express resentment: Certainly NOTA provides democratic means to express resentment anonymously rather than boycotting the polls outright.
      • A group of women activists in Kerala out on the road urging people not to elect any candidate if no woman was present in the fray.
      • A youth group in Tamil Nadu that campaigned for NOTA as a protest vote against corruption.
    • Pleas to extend the scope of NOTA: There have been pleas to extend the scope of NOTA.
      • Recommendation of re-elections: In 2018, a former CEC, T.S. Krishnamurthy, has recommended holding elections again in those constituencies where the victory margin is less than the total numbers of NOTA.
      • Right to reject in place of NOTA: A PIL has been filed in Madras High Court seeking the full right to reject in place of NOTA.

    Cases of extending the scope of NOTA

    • Maharashtra SEC order: In June 2018, the Maharashtra State Election Commission (SEC) issued an order that said:
      • “If it is noticed while counting that NOTA has received the highest number of valid votes, the said election for that particular seat shall be countermanded and a fresh election shall be held for such a post.”
    • NOTA as a fictional candidate in Haryana: In November 2018, the SEC of Haryana went a step further and issued an order where NOTA is treated like a “fictional candidate” in municipal polls from December 2018.
      • If NOTA gets the maximum vote, none of the “real” candidates will be declared elected, and the elections will be cancelled and held afresh.
      • What is more, the candidates securing votes less than NOTA would be barred from contesting in that re-election.
    • Example from Indonesia: Interestingly, in Makassar, Indonesia, the only candidate in the 2018 election for mayor received 35,000 less votes than NOTA, which forced a repeat election in 2020.

    The optimism expressed by the Supreme Court on NOTA

    • The SC’s anticipation: While introducing NOTA, the Supreme Court anticipated that “there will be a systemic change and the political parties will be forced to accept the will of the people and field candidates who are known for their integrity.”
      • Thus, its percentage should either increase to enforce the political parties to field candidates with “integrity”.
      • Or NOTA percentage should consistently decrease if the electorates feel that the system has achieved the desired level of cleansing.
    • No increase or decrease in NOTA votes: In contrast, the share of NOTA votes in India remained around a meagre level of 1% on an average; 1.11% in the 2014 Lok Sabha, and 1.08% in 2019, if we consider constituency-wise averages.
    • What this represents? This perhaps represents a confused state of mind of the electorate. Has the perceived cynicism of Indian voters regarding the right to reject been exaggerated?

    Would NOTB- None of The Below more advantageous?

    • Last option disadvantage? Is NOTA, as the last button of all EVMs in the country, a psychological issue as far as the electorates are concerned?
    • First position on ballot advantage: A 2004 article in The Journal of Politics, have discussed the possible advantage of the first position in the ballot, at least in the U.S. context.
    • NOTB instead of NOTA: Although there is no such concrete study to gauge the Indian voter’s mindset, one wonders whether using NOTB (‘none of the below’) instead of NOTA- with such an option as the first on the electronic voting machine — might produce a significantly different outcome or not.
      • An experiment, after changing the rule suitably, can be attempted, at least.

    Conclusion

    Extending the scope of NOTA by empowering it with the right to reject along with other changes like placing NOTA at the top of EVM would help in making the election process clean and fair.

     

     

     

     

  • Rights, duties and the Constitution

    Context

    At an International Judicial Conference 2020 this weekend, the Chief Justice of India, S.A. Bobde, drew attention to the Constitution’s Fundamental Duties chapter.

    The logic of duties

    • Wide range of duties: The first thing to note is that as citizens, there exists a wide range of duties that bind us in everyday life.
      • Duties towards the state and individual: These duties are owed both to the state and to other individuals.
    • Legal duties: We have a legal duty to pay our taxes, to refrain from committing violence against our fellow-citizens, and to follow other laws that Parliament has enacted.
      • Breach of these legal duties triggers financial consequences (fines), or even time in jail.
    • Following the duties is price for living in the society: At any given time, therefore, we are already following a host of duties, which guide and constrain how we may behave.
      • This is the price that must be paid for living in society, and it is a price that nobody, at least, in principle, objects to paying.
    • Self-contained whole: Our duties and the consequences we bear for failing to keep them, therefore, exist as a self-contained whole.
      • Co-existence and sacrifice: The peaceful co-existence requires a degree of self-sacrifice, and that if necessary, this must be enforced through the set of sanctions.

    The logic of rights

    • Understanding the logic through history: Rights, on the other hand, follow a different logic entirely. This is a logic that is best understood through history.
      • Two concerns: At the time of the framing of the Indian Constitution and its chapter on Fundamental Rights, there were two important concerns animating the Constituent Assembly.
      • Treatment as subjects: The first was that under the colonial regime, Indians had been treated as subjects.
      • Their interests did not count, their voices were unheard, and in some cases — for example, the “Criminal Tribes”- they were treated as less than human.
      • Holocaust example: Apart from the long and brutal history of colonialism, the framers also had before them the recent example of the Holocaust, where the dignity of more than six million people had been stripped before their eventual genocide.
    • The first role of fundamental rights chapter: To stand as a bulwark against dehumanisation.
      • Dignity and equality guaranteed: Every human being no matter who they were or what they did had a claim to basic dignity and equality that no state could take away, no matter what the provocation.
      • Unconditional right: One did not have to successfully perform any duty, or meet a threshold of worthiness, to qualify as a rights bearer. It was simply what it meant to be human.
    • Second role of the fundamental rights: To stand against the hierarchy.
      • Removing the subordination and degradation: The axes of gender, caste and religion had all served to keep masses of individuals in permanent conditions of subordination and degradation.
      • Equalising and democratising: Through guarantees against-
      • Forced labour.
      • Against “untouchability”.
      • Against discriminatory access to public spaces, and others.
      • Fundamental rights were meant to play an equalising and democratising role throughout society, and to protect individuals against the depredations visited on them by their fellow human beings.
    • Significance of the above two roles
      • Transformative purpose: The twin principles of anti-dehumanisation and anti-hierarchy reveal the transformative purpose of the fundamental rights chapter.
      • The recognition that true democracy could not exist without ensuring that at a basic level, the dignity and equality of individuals were protected, both from the state as well as from social majorities.
      • Rise from subject to citizen: It was only with these guarantees could an individual rise from the status of subject to that of the citizen.
      • And, as should be clear by now, it was only after that transformation had been wrought, that the question of duties could even arise.
    • Importance of the language of the duty:
      • The language of duties can play an important role in a society that continues to be divided and unequal.
      • In such a society, those who possess or benefit from entrenched structural and institutional power (starting with the state, and going downwards) certainly have a “duty” not to use that power to the detriment of those upon whom they wield it.
      • That is precisely what the guarantees against “untouchability”, forced labour, and discriminatory access in the Constitution seek to accomplish.

    Issue of conflating duties and rights

    • The problem lies in the conflation of rights and duties.
    • In that context, it is always critical to remember Dr B.R. Ambedkar’s words in the Constituent Assembly (which were also cited by the CJI in his speech): that the fundamental unit of the Constitution remains the individual.
    • If the position of the individual and the Constitution’s commitment to combating hierarchy is kept in mind, then the language of duties can be understood in its proper context.
    • Chances of duties leading to unpleasant consequences: Without the moral compass of rights and their place in the transformative Constitutional scheme the language of duties can lead to unpleasant consequences.
      • It can end up entrenching existing power structures by placing the burden of “duties” upon those that are already vulnerable and marginalised.
    • The constitution is about rights: It is for this reason that, at the end of the day, the Constitution, a charter of liberation, is fundamentally about rights.

    Conclusion

    It is only after guarantee to all the full sum of humanity, dignity, equality, and freedom promised by the Constitution, that we can ask of them to do their duty. Perhaps, then, it is time to update Hind Swaraj for the constitutional age: “real duties are the result of the fulfilment of rights”.

  • Kalasa-Banduri Nala Project

     

    The cost of Kalasa-Banduri Nala Project on the Mahadayi River skyrockets by 1,674% since inception. It rose from about â‚č94 crores (2000) to â‚č1,677.30 crores (2020) due to the ongoing inter-State river water dispute.

    Kalasa-Banduri Nala Project

    • The project is undertaken by the Government of Karnataka to improve drinking water supply to the three districts of Belagavi, Dharwad, and Gadag.
    • It was planned in 1989; Goa raised an objection to it.
    • It involves building across Kalasa and Banduri, two tributaries of the Mahadayi river to divert water to the Malaprabha, a tributary of Krishna River.
    • Malaprabha river supplies the drinking water to Dharwad, Belgaum, and Gadag districts.

    About Mahadayi Water Dispute

    • The Mahadayi river basin drains an area of 2032 square kilometres of which 375 square km lies in Karnataka, 77 sq km in Maharashtra and the remaining in Goa.
    • It originates in the Belagavi district of Karnataka, briefly passes through Maharashtra and flows through Goa (where its known as Mandovi), and drains to the Arabian Sea.
    • Since the eighties, Karnataka has been was contemplating linking of Mahadayi with Malaprabha river, a tributary of Krishna.
    • In 2002, Karnataka gave the idea a shape in the form of the Kalasa-Bhanduri project.
    • Goa strongly opposed it as Mahadayi is one of the two rivers the State is dependent on and thus Mahadayi Water Disputes Tribunal was set up in 2010.

    Read more about the Mahadayi Dispute and award of the tribunal at:

    https://www.civilsdaily.com/news/verdict-of-mahadayi-water-disputes-tribunal-comes/