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Subject: Polity

  • Issues with nominated CM’s election

    • Maharashtra CM is yet to be nominated to one of the seats reserved for the Governor’s nominee in the state Legislative Council.
    • His current term in office approaches its end with a looming constitutional crisis.

    The discretionary powers of the governor have been subjected to various debates this year. Be it Karnataka, Maharashtra, MP or erstwhile J&K (under Lt. Governor) or the UT of Delhi.

    CM without Election

    • Maha CM took oath in accordance with Article 164(4).
    • The article states that a Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister.
    • It follows that the Chief Minister must become part of the legislature before the said expiration of 6 months.

    Governors dilemma

    • A situation in which an individual who is not a member of the legislature becomes chief executive of the government is in itself fairly common.
    • But with the pandemic raging, a by-election cannot be held.
    • The only way to fulfil the requirement, therefore, is for a person to be nominated to the Upper House by the Governor.
    • If that does not happen, the Governor is obligated to make way for someone else to lead the coalition govt.
    • CM Uddhav Thackeray is likely to have had no problems becoming a member of the legislature had the pandemic not hit.

    What does the Judiciary have to say?

    • In S R Chaudhuri vs State of Punjab and Ors (2001), the Supreme Court had ruled that it would be subverting the Constitution to permit an individual, who is not a member of the Legislature.
    • Such a person should not be appointed a Minister repeatedly for a term of ‘six consecutive months’, without him getting himself elected in the meanwhile.
    • The practice would be clearly derogatory to the constitutional scheme, improper, undemocratic and invalid.

    Testing the nomination route

    • The nomination route for non-member Ministers is less common — but not unconstitutional.
    • In 1952, C Rajagopalachari was nominated as CM of Madras by Governor Sri Prakasa.
    • Under Article 171(5), the Governor can nominate “persons having special knowledge or practical experience in respect of. literature, science, art, co-operative movement and social service”.
    • Last month, the President nominated former Chief Justice of India Ranjan Gogoi to Rajya Sabha even though there were doubts about him meeting these prescribed qualifications.
    • Thackeray can be said to have a stronger claim in this regard — he is an ace wildlife photographer.
    • Moreover, as per the Allahabad High Court in Har Sharan Varma vs Chandra Bhan Gupta And Ors (February 15, 1961), even politics can be seen as ‘social service’.

    The role of the Governor

    • It has been argued that Section 151A of The Representation of the People Act, 1951, prohibits the filling of a vacancy if “the remainder of the term of a member in relation to a vacancy is less than one year”.
    • However, this cannot be a reason for the Governor to refuse nomination — because the bar is in respect of by-election to fill a vacancy, not nomination.
    • Of course, the Governor could argue that he is not obligated under the Constitution to act swiftly on the advice of the Council of Ministers; also, why should he nominate Thackeray only to save his chief ministership.

    A new issue for debate

    • It is important to note the extraordinary context — India is currently battling a health emergency of the kind not seen in the history of the republic.
    • Political uncertainty is the last thing that Maharashtra, which has the highest coronavirus caseload and death toll by far in the country, needs at this moment.

    The question of discretion

    • What are the limits to the Governor’s discretion in nominations is the matter of discussion now.
    • In Biman Chandra Bose vs Dr H C Mukherjee (1952) the Calcutta HC rejected the plea that none of the nine nominated members to the legislature fulfilled the required criteria and held that the Governor cannot use his discretion in nominating members to the Council.
    • He has to go by the aid and advice of the Council of Ministers.
    • Article 163(1) of the Constitution makes it clear that the Governor must follow the recommendations of the Council of Ministers in all situations “except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion”.

    Case in Maharashtra

    • It can be argued that government is bound by the advice of the CoM only in executive matters as defined in Article 162 and since the nomination of members is not an executive power, he can act in his discretion.
    • However, it must be noted that under Article 169, while Parliament has the power to abolish or create a Legislative Council, it can pass such a law only after the state Assembly has passed a resolution to that effect.
    • Thus, the legislative power of the Assembly can be inferred from this provision.

    Also read:

    https://www.civilsdaily.com/news/role-of-governor-in-state-govt-formation/

  • No 100% quota for Scheduled Areas

    • A Constitution Bench of the Supreme Court held it unconstitutional to provide 100% reservation for tribal teachers in schools located in Scheduled Areas across the country.
    • The Bench was answering a reference made to it in 2016 on whether 100% reservation is permissible under the Constitution.

    Reservation in India is a system of affirmative action by the State that provides representation for historically and currently disadvantaged groups in Indian society in education, employment and politics. The 10% EWS quota this year has raised the inevitability for a possible mains question.

    No 100% quota

    • The apex court held that it is an obnoxious idea that tribals only should teach the tribals.
    • Merit cannot be denied in toto by providing reservation observed the judgement.
    • Citizens have equal rights, and the total exclusion of others by creating an opportunity for one class is not contemplated by the founding fathers of the Constitution of India.

    Invoking Indira Sawhney judgment

    • The court referred to the famous Indira Sawhney judgment (Mandal case- Indra Sawhney v. Union of India 1992), which caps reservation at 50%.
    • The court held that 100% reservation is discriminatory and impermissible.
    • The opportunity of public employment is not the prerogative of few.
    • A 100% reservation to the Scheduled Tribes has deprived SCs and OBCs also of their due representation.

  • Issue of post-retirement appointments of the judges.

    The article discusses the issue of retired judges accepting government post after retirement. Such appointments have several implications. It undermines confidence in the independence of the judiciary. It also influence pre-retirement judgements delivered by the judges. The article also offers some solutions to this problem.

    The provisions in the Constitution to secure the independence of the judiciary

    • The Constitution has been conceived to provide a pride of place to the judiciary.
    • Constitutional appointees to the Supreme Court have been guaranteed several rights in order to secure their independence.
    • Salary: The salaries of judges and their age of retirement are all guaranteed in order to secure their independence.
    • Removal: They cannot be easily removed except by way of impeachment under Articles 124(4) and 217(1)(b).
    • They have the power to review legislation and strike it down.
    • They can also question the acts of the executive.
    • All this makes it clear that the framers of the Constitution envisaged an unambitious judiciary for which the only guiding values were the provisions of the Constitution.

    Issue of judges accepting post-retirement jobs

    • It was thought that on retirement from high constitutional office, a judge would lead a retired life.
    • Nobody ever expected them to accept plum posts.
    • But the clear demarcation between the judiciary and executive got blurred as many judges over the years began to accept posts offered by the government.
    • A few years ago, a former Chief Justice of India (CJI) was made a Governor by the ruling party.
    • Now, we have the case of a former CJI, Ranjan Gogoi, being nominated by the President to the Rajya Sabha and taking oath as Member of Parliament.
    • Pre-retirement judgements under cloud: During his tenure as CJI, Justice Gogoi presided over important cases such as Ayodhya and Rafale where all the decisions went in favour of the government.
    • This gave rise to the impression that his nomination was a reward for these ‘favours’.
    • Thus his appointment — and that too within a few months of his retirement — not only raised eyebrows but came in for severe condemnation from varied quarters.
    • Loss of confidence: People are fast losing confidence in the so-called independent judiciary.
    • In 2013 Arun Jaitley, who was also a senior Advocate, ironically said that legislature was creating post-retirement avenues for Judges in every legislation.
    • He also said that post-retirement job influences pre-retirement judgements.
    • It is in this context that the appointment of Mr Gogoi has to be perceived.

    Did Constitution makers intend to nominate Judges?

    • Mr Gogoi’s view that membership of the Rajya Sabha was not a job but a service, and that once the President nominated him the call of duty required him to accept it, only created the impression that the judiciary is pliant.
    • A bare reading of Article 80(3) of the Constitution only envisages the President to nominate “persons having special knowledge in literature, science, art and social service” as members to the Rajya Sabha.
    • It is difficult to imagine that the Constitution-makers had in mind a retired CJI when framing this provision.

    A direct question based on the issue can be asked, like “What are the implications of post-retirement appointments of the judges? Give suggestions to deal with this problem”.  So, take note of the various issues and their solutions discussed here.

    Way forward

    • If post-retirement appointments are going to undermine confidence in the judiciary and in a constitutional democracy.
    • Enact law or amend Constitution: It is time to have a law in place either by way of a constitutional amendment or a parliamentary enactment barring such appointments.
    • This is the only way to secure the confidence of the people and prevent post-retirement appointments.
    • Increase pension: Judges can be compensated by being given their last drawn salary as a pension.
    • Retirement age can be increased: Also, the age of retirement for judges can be increased by a year or two.
    • This will undo the damage caused by post-retirement jobs.

    Conclusion

    The appointments of persons who have held constitutional office will undermine the very constitutional values of impartiality in the dispensation of justice. So, enacting a law to bar such appointments or amendment to the Constitution would be the step in the right direction.

  • Institutional fixes and the need for ethical politics

    The article discusses the recent event in Madhya Pradesh where a group of legislature resigned bringing down the government. A most important issue arising out such incidents is circumventing of the laws made to avoid such things from happening. Several such issues along with their solutions are described here.

    New method to bypass the anti-defection law

    • The political activities in Madhya Pradesh represent a new method of bypassing the anti-defection law and toppling elected governments.
    • The government in Karnataka was brought down in July last year in a similar manner with 17 MLAs of the ruling coalition resigning and joining the BJP.
    • What method was used? Under this novel method, a set of legislators of the party in power is made to resign from the Assembly to reduce the total strength of the House enough for the opposition party to cross the halfway mark to form the government.
    • In the ensuing by-elections, the members who resigned were then fielded as ruling party candidates (most of whom have been re-elected in the case of Karnataka).
    • The same practice is likely to be repeated in Madhya Pradesh soon.

    A question based on anti-defection law and its implication for healthy debate in the parliament was asked in 2013. And that issues still persist. So, take note of these issues.

    Exploiting the loophole in the Tenth Schedule

    • This method of mass defection circumvents the provisions of the Tenth Schedule of the Constitution (better known as the anti-defection law)
    • What is the Tenth Schedule? The tenth schedule prescribes the grounds for disqualification of legislators: voluntarily giving up party membership and voting or abstaining to vote against party directions.
    • Resignation is not mentioned as a ground for disqualification.
    • However, the Speaker in Karnataka disqualified them for the rest of the Assembly’s term, thereby barring them from contesting the by-polls.
    • While the Supreme Court upheld the disqualification.
    • It stuck down the bar from contesting by-polls.
    • In Madhya Pradesh, since the Speaker has accepted the resignation of the MLAs, the defectors can in any case contest the by-polls.

    Damaging the underpinnings of democracy

    • The recurrence of this model of defection signals the exploitation of the inherent weaknesses of the anti-defection law.
    • While solo legislators jumping ship might have reduced now, “horse-trading” seems to have gone from retail to wholesale.
    • This threatens the underpinnings of India’s electoral democracy since such surreptitious capture of power essentially betrays the people’s mandate in a general election.

    Kihoto case is an important case in relation to the anti-defection law.

    Time to reframe the anti-defection law

    • In this context, it is important to examine whether the anti-defection law fulfils any purpose.
    • This law raises fundamental concerns regarding the role of a legislator in a parliamentary democracy.
    • Issues with the law: It denies the legislator the right to take a principled position on a policy matter and reduces her to an involuntary supporter of the whims of party bosses.
    • Challenge to the constitutionality: The constitutionality of the Tenth Schedule was challenged for violating the Basic Structure of Constitution with regard to parliamentary democracy and free speech.
    • Judicial review of the Speaker’s decision: The Supreme Court in Kihoto Hollohan v. Zachillhu (1992) in a 3-2 verdict upheld the law while reserving the right of judicial review of the Speaker’s decision.

    What are the shortcomings in the anti-defection law?

    • Restriction on the freedom of legislator: The anti-defection law, on the one hand, severely restricts the freedom of a legislator and makes her a slave of party whips.
    • Failure in preventing the horse-trading: On the other hand, it has not been able to meet its primary objective of preventing horse-trading and continues to be circumvented to bring down elected governments.
    • This calls for reforms that address concerns at both ends of the spectrum.

    Following two are the solutions offered here. They are important from Mains point of view. As solutions are often asked for the pressing issues.

    Dinesh Goswami Committee and other suggestion

    • Restrict the scope of the binding whip: For addressing the first issue, as the Dinesh Goswami Committee also suggested, the scope of the binding whip should be restricted to a vote of confidence.
    • For addressing the second issue, it is best to institutionalise the Karnataka Speaker’s decision to bar the defected members from contesting in the ensuing by-poll, if not for a longer period.
    • This will disincentivise MLAs from jumping ship.
    • These reforms would require a constitutional amendment to the Tenth Schedule, an uphill task under the current circumstances.

    Conclusion

    We are facing a deeper challenge of the corrosion of India’s parliamentary system, for even in jurisdictions without such anti-defection laws, we do not see “horse-trading” and “resort politics”. Hence, beyond institutional fixes, we also need a popular articulation of an ethical politics that causes the public to shun such political manoeuvres.

    Back2Basic: What is the Tenth Schedule?

    • The Tenth Schedule was inserted in the Constitution in 1985.
    • It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House.
    • A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote.
    • This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House.
    • The law applies to both Parliament and state assemblies.
    • Exceptions under the law: Legislators may change their party without the risk of disqualification in certain circumstances.
    • The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favour of the merger.
    • In such a scenario, neither the members who decide to merge nor the ones who stay with the original party will face disqualification.
    • Is there any time limit to decide on the matter? The law does not specify a time period for the Presiding Officer to decide on a disqualification plea.
    • Given that courts can intervene only after the Presiding Officer has decided on the matter, the petitioner seeking disqualification has no option but to wait for this decision to be made.

  • Anti Defection Law

  • Removal of AP State Election Commissioner by ordinance route

    The removal of the SEC by the ordinance route raises the question over the legality of the move. And if it passes the judicial scrutiny it would harm the independence of the body.

    The legality of the removal and its implication for free and fair elections

    • The fact that it was the culmination of an open conflict between the Election Commissioner and Chief Minister makes it a glaring instance of misuse of power.
    • The State government got the Governor to issue an ordinance to cut the SEC’s tenure from five to three years.
    • The ordinance also amended the criterion for holding that office from being an officer of the rank of Principal Secretary and above to one who had served as a High Court judge.
    • This automatically rendered the SEC’s continuance invalid.
    • Last month, just days before the local body polls were to be held, the SEC postponed the elections, citing the COVID-19 outbreak.
    • The State government approached the Supreme Court, but the court declined to interfere.
    • Having exhausted its legal remedy, the government should have waited for the ongoing fight against the disease to be over.
    • The Chief Minister has no legal right to terminate the SEC’s tenure.
    • The Constitution makes the holder of that post removable only in the same manner as a High Court judge.
    • If courts uphold this means of dislodging the head of an independent election body, it would mark the end of free and fair elections.

    Past judgements on the issue

    • The State government seems to have gone by legal opinion that citedAparmita Prasad Singh vs. State of U.P. (2007).
    • Cessation of term vs. removal: In that judgement the Allahabad High Court ruled that cessation of tenure does not amount to removal, and upheld the State Election Commissioner’s term being cut short.
    • The Supreme Court, while dismissing an appeal against the order, kept open the legal questions arising from the case.

    UPSC can frame the question based on the judgement in case by the SC and its implication for the independence of the body in conducting the fair, free and impartial election.

    Issues arising out of the past judgements

    • The judgment seems erroneous, as it gives freedom to the State government to remove an inconvenient election authority by merely changing the tenure or retirement age.
    • This was surely not what was envisioned by Parliament, which wrote into the Constitution provisions to safeguard the independence of the State Election Commission.
    • It is a well-settled principle in law that what cannot be done directly cannot be done indirectly.
    • Therefore, the removal of an incumbent SEC through the subterfuge of changing the eligibility norms for an appointment may not survive judicial scrutiny.
    • Prohibition on the variation of condition of service: Further, the Constitution, under Article 243K, prohibits the variation of any condition of service to the detriment of any incumbent.
    • Even if the State government argues that a change of tenure does not amount to varying the conditions of service, the new norm can only apply to the successor SEC, and not the one holding the office now.

    Conclusion

    In order to ensure the independence of the SEC and free and fair elections, legality of the move should not pass the legal scrutiny. Even if it passes the legal scrutiny the government should amend this provision avoid such instances in the future.

     

  • Needed, greater decentralisation of power

    Context

    Even as States have taken up positions of leadership in the pandemic response, federal limitations are becoming hurdles.

    State governments at the position of leadership

    • In the fight against the pandemic, one of the striking features of governance has been the signal role played by State Chief Ministers across India.
    • Proactive measures: Even before the Union government invoked the Disaster Management Act, 2005, many State governments triggered the Epidemic Diseases Act, 1897, and installed a series of measures to combat what was then an oncoming onslaught of COVID-19.
    • These actions have not always been perfect. Some of them have even disproportionately trenched upon basic civil liberties.
    • But, by and large, they have been tailored to the reality faced on the ground by the respective governments.
    • Policies to address local concerns: States such as Maharashtra, Kerala, Tamil Nadu, Rajasthan, and Karnataka have shaped their policies to address their direct, local concerns.
    • They have communicated these decisions to the public with clarity and consideration, helping, in the process, to lay out a broad framework for the nation.
    • Not just the laboratories of democracy: In doing so, they have acted not merely as “laboratories of democracy”, to paraphrase the former U.S. Supreme Court Justice Louis Brandeis, but also as founts of reasoned authority.

    Federal arrangements placing limitations on the states

    • Equally, though, as much as State governments have taken up positions of leadership, they have repeatedly found themselves throttled by the limitations of the extant federal arrangement.
    • The Centre for Policy Research has pointed out at least three specific limitations.
    • Funds and structuring own package: The inability of States to access funds and thereby structure their own welfare packages.
    • Curbs imposed by PFMS: The curbs imposed by a public finance management system (PFMS) that is mired in officialdom.
    • This has prevented States from easily and swiftly making payments for the purchase of health-care apparatus such as ventilators and personal protective equipment.
    • Disruption of supply chains: Three, the colossal disruption of supply chains not only of essential goods and services but also of other systems of production and distribution, which has placed States in a position of grave economic uncertainty.
    • Need to decentralise: As these limitations demonstrate an urgent need to decentralise administration, where States — and local bodies acting through such governments — are allowed greater managerial freedom.
    • Under such a model, the Union government will command less but coordinate more.

    Indian federalism-two distinct levels

    • There are varying accounts of what Indian federalism truly demands.
    • Two levels: What is manifest from a reading of the Constitution is that it creates two distinct levels of government: one at the Centre and the other at each of the States.
    • The Seventh Schedule to the Constitution divides responsibilities between these two layers.
    • The Union government is tasked with matters of national importance, such as foreign affairs, defence, and airways.
    • But the responsibilities vested with the States are no less important. Issues concerning public health and sanitation, agriculture, public order, and police, among other things, have each been assigned to State governments.
    • In these domains, the States’ power is plenary.
    • This federal architecture is fortified by a bicameral Parliament.
    • Significantly, this bicameralism is not achieved through a simple demarcation of two separate houses, but through a creation of two distinct chambers that choose their members differently-
    • A House of the People [Lok Sabha] comprising directly elected representatives and a Council of States [Rajya Sabha] comprising members elected by the legislatures of the States.

    Financial autonomy of the states

    • Ensuring financial autonomy: In formulating this scheme of equal partnership, the framers were also conscious of a need to make States financially autonomous.
    • No overlap: To that end, when they divided the power to tax between the two layers of government they took care to ensure that the authority of the Union and the States did not overlap.
    • Therefore, while the Centre, for example, was accorded the power to tax all income other than agricultural income and to levy indirect taxes in the form of customs and excise duties, the sole power to tax the sale of goods and the entry of goods into a State was vested in the State governments.
    • The underlying rationale was simple: States had to be guaranteed fiscal dominion to enable them to mould their policies according to the needs of their people.

    History of paradox in federal system of India

    • Despite this plainly drawn arrangement, the history of our constitutional practice has been something of a paradox.
    • It is invariably at the level of the States that real development has fructified.
    • But the Union has repeatedly displayed a desire to treat States, as the Supreme Court said in R. Bommai v. Union of India, as mere “appendages of the Centre”.
    • Time and again, efforts have been made to centralise financial and administrative power, to take away from the States their ability to act independently and freely.
    • Following five examples demonstrated that the point made here.

    1 Matters of finance-what was expected in theory did not realise

    • Consider the widely hailed decision to accept the 14th Finance Commission’s recommendation for an increase in the share of the States in total tax revenues from 32% to 42%.
    • While, in theory, this ought to have enabled the States to significantly increase their own spending, in reality, as a paper authored by Amar Nath H.K. and Alka Singh of the National Institute of Public Finance and Policy suggests, this has not happened.
    • What went wrong? Gains made by the States, as the paper underlines, have been entirely offset by a simultaneous decline in share of grants and by a concomitant increase in the States’ own contribution towards expenditures on centrally sponsored schemes.

    2. Goods and Service Tax

    • The decline in the sovereignty of the states: Notably, the creation of a Goods and Services Tax regime, which far from achieving its core purpose of uniformity has rendered nugatory the internal sovereignty vested in the States.
    • By striking at the Constitution’s federal edifice, it has made the very survival of the States dependent on the grace of the Union.
    • The tension today is so palpable that a number of the States are reported to have written to the Union Finance Ministry.
    • More than four months’ worth of Goods and Services Tax compensation to the States — reportedly totalling about a sum of ₹40,000 crore — remains unreleased.

    3. Passing a bill as a money bill

    • The Union government’s centralising instinct, though, has not been restricted to matters of finance.
    • It has also introduced a slew of legislation as money bills, in a bid to bypass the Rajya Sabha’s sanction, even though these laws scarcely fit the constitutional definition.

    4. Role of the Governors

    • Similarly, the role of the Governors has been weaponised to consolidate political power.

    5. Article 370

    • But perhaps most egregious among the moves made is the gutting of Article 370 and the division of Jammu and Kashmir into two Union Territories.
    • It was done without securing consent from the State Legislative Assembly.

    Conclusion

    Perhaps a crisis of the kind that COVID-19 has wrought will show us that India needs greater decentralisation of power; that administration through a single central executive unit is unsuited to its diverse and heterogeneous polity. We cannot continue to regard the intricate niceties of our federal structure as a nettlesome trifle. In seeing it thus, we are reducing the promise of Article 1 of the Constitution, of an India that is a Union of States, to an illusory dream.

  • What is Open Court System?

    The Supreme Court has invoked its extraordinary Constitutional powers under Article 142 to step away from the convention of open court hearings. It deemed all restrictions imposed on people from entering, attending or taking part in court hearings as lawful in the wake of the COVID-19 pandemic.

    What are Open Courts?

    • The Open court principle requires that court proceedings presumptively be open and accessible to the public and to the media.
    • Open courts are normal court where proceedings of the court are conducted where every person is allowed to watch the proceedings of the court.
    • There are instances where it is not practical to accommodate persons other than parties to the proceedings. Therefore, such proceedings are held in camera.
    • This means that the proceedings are held in a closed room where the public will not have access to watch the proceedings.
    • In criminal cases like rape, it is necessary to protect the identity and modesty of the victim.

    Why did the Supreme Court deter Open Court’s norm?

    • A Bench led by CJI said these restrictions were in tune with the social distancing norms and best public health practices advocated to contain the contagion.
    • The court made it clear that public health takes precedence over conventions.
    • Every individual and institution is expected to cooperate in the implementation of measures designed to reduce the transmission of the virus.
    • Open court hearings would mean a congregation of large number of people. This would prove detrimental to the fight against the virus.

    Conclusion

    • Access to justice is fundamental to preserve the rule of law in the democracy envisaged by the Constitution of India.
    • The challenges occasioned by the outbreak of COVID-19 have to be addressed while preserving the constitutional commitment to ensuring the delivery of and access to justice to those who seek it..

    Way forward

    • Indian courts have been proactive in embracing advancement in technology in judicial proceedings.
    • Judiciary can bank on video-conferencing technologies in the wake of this unprecedented and extraordinary outbreak of a pandemic.

    Back2Basics

    Article 142 of the Indian Constitution

    • Article 142 allows the Supreme Court to pass any order necessary to do “complete justice” in any case.
    • It supplements the powers already conferred upon the Supreme Court under the Constitution to guarantee that justice is done and in doing so the Court is not restrained by lack of jurisdiction or authority of law.
    • The phrase ‘complete justice’ engrafted in Article 142(1) is the word of wide interpretation to meet situations created by legal errors or result of operation of statute law or law.
    • Thus Article 142 is conceived to give the apex court the powers to meet the situations which cannot be effectively tackled by existing provisions of law.

    Also read: 

    Supreme Court Removes Manipur MLA Under The 10th Schedule

  • MPLADS funds suspended over COVID-19 crisis

    The Union Cabinet gave its nod to the temporary suspension of MPLAD Funds during 2020-21 and 2021-22 in view of the adverse impact of the outbreak of COVID-19 in India.

    Why suspend MPLAD?

    • The consolidated amount of MPLAD Funds for 2 years – Rs 7,900 crores – will go to Consolidated Fund of India.
    • The Cabinet has also approved an ordinance to reduce the salaries, allowances and pensions of Members of Parliament (MPs), including the Prime Minister, by 30 per cent for one year.
    • The amount so collected would be utilized in the fight against coronavirus.

    What is the MPLAD scheme?

    • The Members of Parliament Local Area Development Scheme (MPLADS) is a programme first launched during the Narasimha Rao Government in 1993.
    • It was aimed towards providing funds for developmental works recommended by individual MPs.

    Funds available

    • The MPs then were entitled to recommend works to the tune of Rs 1 crore annually between 1994-95 and 1997-98, after which the annual entitlement was enhanced to Rs 2 crore.
    • The UPA government in 2011-12 raised the annual entitlement to Rs 5 crore per MP.

    Implementation

    • To implement their plans in an area, MPs have to recommend them to the District Authority of the respective Nodal District.
    • The District Authorities then identify Implementing Agencies which execute the projects.
    • The respective District Authority is supposed to oversee the implementation and has to submit monthly reports, audit reports, and work completion reports to the Nodal District Authority.
    • The MPLADS funds can be merged with other schemes such as MGNREGA and Khelo India.

    Guidelines for MPLADS implementation

    • The document ‘Guidelines on MPLADS’ was published by the Ministry of Statistics and Programme Implementation in June 2016 in this regard.
    • It stated the objective of the scheme to enable MPs to recommend works of developmental nature with emphasis on the creation of durable community assets based on the locally felt needs in their Constituencies.
    • Right from inception of the Scheme, durable assets of national priorities viz. drinking water, primary education, public health, sanitation and roads, etc. should be created.
    • It recommended MPs to works costing at least 15 per cent of their entitlement for the year for areas inhabited by Scheduled Caste population and 7.5 per cent for areas inhabited by ST population.
    • It layy down a number of development works including construction of railway halt stations, providing financial assistance to recognised bodies, cooperative societies, installing CCTV cameras etc.

  • The SC order on migrants labours raises several issues

    Context

    On March 31, the Supreme Court of India (SC), entertaining a writ petition under Article 32, passed an order which raises more questions than it seeks to answer.

    What were the issues involved in the writ petition?

    • The writ petition was purportedly filed in the public interest, “for redressal of grievances of migrant workers in different parts of the country”.
    • Directions which are in favour of the Union government: The Court has proceeded to issue several directions which are clearly in favour of the respondent, the Union of India.
    • The following three directions were uncalled for:

    What were the directions issued by the Supreme Court?

    • One, that under section 54 of the Disaster Management Act, 2005, persons can be punished with imprisonment, which may extend to one year, or with a fine for making or circulating a false alarm or warning.
    • Disobedience of the order including an advisory by a public servant would result in punishment under section 188 of the IPC.
    • Two, all concerned, that is the state government, public authorities and citizens will faithfully comply with directives, advisory and orders issued by the Union of India in letter and spirit in the interest of public safety.
    • Three, the media should only refer to and publish the official version of the Government of India, publishing a daily bulletin.
    • The SC observations about migrant labourers: After giving substantial reliefs to the Union of India, the SC proceeded to make mere observations about migrant labourers by directing that they should be dealt with “in a humane manner”.
    • And that “trained counsellors, community leaders and volunteers must be engaged along with the police to supervise the welfare activities of migrants”.
    • The SC has virtually absolved the government for its handling of the situation.

    What was the basis for issuing orders and issues with it

    • The basis of the directions is a statement made by the Solicitor General of India and some status reports to the effect that “the exodus of migrant labourers was triggered due to panic created by some fake/misleading news and social media”.
    • What is an issue with basis? The SC has proceeded on assumptions and surmises which were untested and unchallenged.
    • What the court should have done? In a matter of such seriousness, the least it should have done was to have appointed an amicus curiae (a friend of the court) to assist it rather than simply accept the self-serving status reports and statements made before it.
    • The Court overlooked the fact that in India, hundreds of millions of people work during the day and are paid at the end of the day and then go and buy their foodstuffs.
    • They have no savings, nor do they have foodgrains stored.
    • It is surprising that the Court, the custodian of fundamental rights, should be oblivious to this reality.

    Issue of press freedom

    • Citizens have the right to freedom of speech and expression. Press freedom is a part of this. Citizens have the right to receive information as well.
    • Article 13 (2) of the Constitution says that the state cannot make any law which takes away or abridges the fundamental rights.
    • If Parliament cannot do so, the Supreme Court — the upholder of the constitutional rights — surely cannot do so.
    • The SC has itself held in M Nagraj (2006): “A right becomes a fundamental right because it has foundational value. The fundamental right is a limitation on the power of the State. A Constitution, and in particular that part of it which protects and which entrenches fundamental rights and freedoms to which all persons in the State are to be entitled, is to be given a generous and purposive construction.”
    • The SC should not have made all media subservient to the government by directing that the former “refer to and publish the official version about the developments”.
    • Such an order could be justified only during an emergency and that too by the executive, subject to challenge before the courts.

    Conclusion

    The SC has given a carte blanche to the authorities, and citizens appear to have no avenues of redress. Most of all, by condemning the media and social media, holding them responsible for fake news, the SC has done a great disservice to the institution which provides information to citizens and upholds democracy.