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Subject: Polity

  • Reservation as right: on Supreme Court judgment

    Context

    The recent Supreme Court judgment, that there is no fundamental right to claim reservation in promotions, has caused some political alarm.

    Received wisdom in affirmative action jurisprudence

    • Presence of sound legal framework for a reservation: The received wisdom in affirmative action jurisprudence is that a series of Constitution amendments and judgments have created a sound legal framework for reservation in public employment, subject to the fulfilment of certain constitutional requirements.
    • Solidification of reservation as an entitlement: It is also accepted that the framework has solidified into an entitlement for the backward classes, including the SCs and STs.

    What does the judgement mean?

    • Reservations are not rights: The latest judgment is a reminder that affirmative action programmes allowed in the Constitution flow from “enabling provisions” and are not rights as such.
    • Not a new legal position: This legal position is not new. Major judgments- these include those by Constitution Benches-note that Article 16(4), on the reservation in posts, is enabling in nature.
    • The state is not bound to provide reservation: In other words, the state is not bound to provide reservations. But if the state provides reservations, it must satisfy the following two criteria-
      • For the backward class: It must be in favour of sections that are backward.
      • Inadequately represented: And inadequately represented in the services based on quantifiable data.
    • What happened in the Uttarakhand case? The Court set aside the Uttarakhand High Court order directing data collection on the adequacy or inadequacy of representation of SC/ST candidates in the State’s services.
      • What was the reasoning? Its reasoning is that once there is a decision not to extend reservation — in this case, in promotions — to the section, the question whether its representation in the services is inadequate is irrelevant.

    Question of government obligation

    • The idea in consonance with the Constitution: The idea that reservation is not a right may be in consonance with the Constitution allowing it as an option.
    • The larger question of the government obligation: But a larger question looms is there no government obligation to continue with affirmative action if-
      • The social situation that keeps some sections backwards.
      • And at the receiving end of discrimination persists?

    Why reservation matters for equality?

    • Reservation as a faced of equality-the SC: Reservation is no more seen by the Supreme Court as an exception to the equality rule; rather, it is a facet of equality.
    • Completion of equality norm: The terms “proportionate equality” and “substantive equality” have been used to show that the equality norm acquires completion only when the marginalised are given a legal leg-up.

    What may be the consequences of this judgement?

    • Possibility of the unequal system: Some may even read into this an inescapable state obligation to extend reservation to those who need it, lest its absence renders the entire system unequal.
    • Possibility of perceptible imbalance: For instance, if no quotas are implemented and no study on backwardness and extent of representation is done, it may result in a perceptible imbalance in social representation in public services.

    Conclusion

    Ensuring adequate representation to disadvantaged sections is a state obligation and the state must play its role in ensuring their representation by appropriate legislation.

     

  • Explained: Uniform Civil Code — the debate, the status

    Last week, while hearing a matter relating to properties of a Goan, the Supreme Court described Goa as a “shining example” with a Uniform Civil Code, observed that the founders of the Constitution had “hoped and expected” a UCC for India but there has been no attempt at framing one.

    What is a Uniform Civil Code?

    • A UCC is one that would provide for one law for the entire country, applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption etc.
    • Article 44 of the Constitution lays down that the state shall endeavour to secure a UCC for the citizens throughout the territory of India.
    • Article 44 is one of the directive principles. These, as defined in Article 37, are not justiciable (not enforceable by any court) but the principles laid down therein are fundamental in governance.
    • Fundamental rights are enforceable in a court of law. While Article 44 uses the words “state shall endeavour”, other Articles in the ‘Directive Principles’ chapter use words such as “in particular strive”; “shall in particular direct its policy”; “shall be obligation of the state” etc.
    • Article 43 mentions “state shall endeavour by suitable legislation” while the phrase “by suitable legislation” is absent in Article 44.
    • All this implies that the duty of the state is greater in other directive principles than in Article 44.

    What are more important — fundamental rights or directive principles?

    • There is no doubt that fundamental rights are more important.
    • The Supreme Court held in Minerva Mills (1980): “Indian Constitution is founded on the bed-rock of the balance between Parts III (Fundamental Rights) and IV (Directive Principles).
    • To give absolute primacy to one over the other is to disturb the harmony of the Constitution”.
    • Article 31C inserted by the 42nd Amendment in 1976, however, lays down that if a law is made to implement any directive principle, it cannot be challenged on the ground of being violative of the fundamental rights under Articles 14 and 19.

    Does India not already have a uniform code in civil matters?

    • Indian laws do follow a uniform code in most civil matters – Indian Contract Act, Civil Procedure Code, Sale of Goods Act, Transfer of Property Act, Partnership Act, Evidence Act etc.
    • States, however, have made hundreds of amendments and therefore in certain matters, there is diversity even under these secular civil laws.
    • Recently, several states refused to be governed by the uniform Motor Vehicles Act, 2019.
    • If the framers of the Constitution had intended to have a Uniform Civil Code, they would have given exclusive jurisdiction to Parliament in respect of personal laws, by including this subject in the Union List.
    • But “personal laws” are mentioned in the Concurrent List. Last year, the Law Commission concluded that a Uniform Civil Code is neither feasible nor desirable.

    Is there one common personal law for any religious community governing all its members?

    • All Hindus of the country are not governed by one law, nor are all Muslims or all Christians.
    • Not only British legal traditions, even those of the Portuguese and the French remain operative in some parts.
    • In Jammu and Kashmir until August 5, 2019, local Hindu law statutes differed from central enactments.
    • The Shariat Act of 1937 was extended to J&K a few years ago but has now been repealed.
    • Muslims of Kashmir were thus governed by a customary law, which in many ways was at variance with Muslim Personal Law in the rest of the country and was, in fact, closer to Hindu law.
    • Even on registration of marriage among Muslims, laws differ from place to place. It was compulsory in J&K (1981 Act), and is optional in Bengal, Bihar (both under 1876 Act), Assam (1935 Act) and Odisha (1949 Act).
    • In the Northeast, there are more than 200 tribes with their own varied customary laws.
    • The Constitution itself protects local customs in Nagaland. Similar protections are enjoyed by Meghalaya and Mizoram. Even reformed Hindu law, in spite of codification, protects customary practices.

    How does the idea of a UCC relate to the fundamental right to religion?

    • Article 25 lays down an individual’s fundamental right to religion; Article 26(b) upholds the right of each religious denomination or any section thereof to “manage its own affairs in matters of religion”; Article 29 defines the right to conserve distinctive culture.
    • An individual’s freedom of religion under Article 25 is subject to “public order, health, morality” and other provisions relating to fundamental rights, but a group’s freedom under Article 26 has not been subjected to other fundamental rights
    • In the Constituent Assembly, there was division on the issue of putting Uniform Civil Code in the fundamental rights chapter.
    • The matter was settled by a vote. By a 5:4 majority, the fundamental rights sub-committee headed by Sardar Patel held that the provision was outside the scope of fundamental rights and therefore the UCC was made less important than freedom of religion.

    What was the view of Muslim members in the Constituent Assembly?

    • Some members sought to immunise Muslim Personal Law from state regulation.
    • Mohammed Ismail, who thrice tried unsuccessfully to get Muslim Personal Law exempted from Article 44, said a secular state should not interfere with the personal law of people.
    • B Pocker Saheb said he had received representations against a common civil code from various organisations, including Hindu organisations.
    • Hussain Imam questioned whether there could ever be uniformity of personal laws in a diverse country like India.
    • B R Ambedkar said “no government can use its provisions in a way that would force the Muslims to revolt”.
    • Alladi Krishnaswami, who was in favour of a Uniform Civil Code, conceded that it would be unwise to enact Uniform Civil Code ignoring strong opposition from any community.
    • Gender justice was not mentioned in these debates.

    How did the debate on a common code for Hindus play out?

    • In June 1948, Rajendra Prasad, President of the Constituent Assembly, warned Jawaharlal Nehru that to introduce “basic changes” in personal law was to impose “progressive ideas” of a “microscopic minority” on the Hindu community as a whole.
    • Others opposed to reforms in Hindu law included Sardar Patel, Pattabhi Sitaramayya, M A Ayyangar, M M Malaviya and Kailash Nath Katju.
    • When the debate on the Hindu Code Bill took place in December 1949, 23 of 28 speakers opposed it.
    • On September 15, 1951, President Prasad threatened to use his powers of returning the Bill to Parliament or vetoing it.
    • Ambedkar eventually had to resign. Nehru agreed to trifurcation of the Code into separate Acts and diluted several provisions.

  • Victim justice is two steps forward, one step back

    Context

    The recent judgment in Rekha Murarka vs The State Of West Bengal, the SC has held that the victims’ private counsel cannot orally examine or cross-examine the witnesses.

    Place of the victim in the present criminal justice system

    • Removed from the proceedings: Under our criminal justice system, victims find themselves removed from the proceedings.
      • Their identities are reduced to being mere witnesses.
      • The harm they suffer is reduced to being aggravating or mitigating factors at the time of sentencing.
      • Stage props in a larger scheme: With the state appropriating their victimisation, the actual victims become mere stage props in a larger scheme.
    • Need of The victim-centric notion of justice-Law Commission suggestion: In 1996, the 154th Law Commission Report suggested a paradigm shift in India’s criminal justice system towards a victim-centric notion of justice.
      • Partial acceptance: The Code of Criminal Procedure (Amendment) Act, 2009 partially accepted the Law Commission suggestion and granted some rights to the victims of crime.
      • The Act introduced victims’ right to a private counsel under Section 24(8).
      • Move toward victim’s participation: The Code of Criminal Procedure already allowed for pleaders engaged by private persons to submit written arguments with the permission of the court under Sections 301(2) and 302 allowed a person to conduct the prosecution with permission of the court.
      • These sections were read together to partially secure the victims’ right to participation.

    Steps take  towards securing justice for victims

    • Right to legal assistance to victims of sexual assault: In the case of Delhi Domestic Working Women’s Forum v. Union of India (1994), the SC called for the extension of the right to legal assistance to victims of sexual assault at the pre-trial stages.
    • The SC opinion over asymmetry in rights of victims and the accused: In Mallikarjun Kodagali (Dead) … vs The State Of Karnataka (2018), the Court accepted that under the criminal justice system, the rights of the accused far outweigh the rights of the victim.
    • Introduction of victim impact statement right to appeal against the adverse order: The Supreme Court not only called for the introduction of a victim impact statement in order to guarantee the participation of the victim in the trial proceedings.
      • The SC also reinstated the victims’ right to appeal against an adverse order.

    Provisions on the international level for the victim’s participation

    • Despite these advances, the scheme of victim participation remains far removed from the ideals embedded in the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power; India is a signatory.
      • What does the declaration require? It requires that the views and concerns of victims should be allowed and considered at all appropriate stages without prejudice to the accused.
    • Need to increase the victims’ advocate’s role: Presently, the victims’ advocate has an extremely limited role to play wherein he “assists” the prosecutor rather than represent the interests of the victim before the court.
      • The only substantial opportunity provided to a private counsel is after the closing of evidence when written arguments may be submitted to the court only after seeking the permission of the court.
    • Contrast with ICC: In contrast, the International Criminal Court (ICC) provides for victim participation at the stage of-
      • First, a challenge to the jurisdiction of the ICC.
      • Second, framing of charges.
      • Third, opening and closing statements.
      • Fourth, making a written submission wherever the personal interests of the victims are affected.
      • And finally, for presenting witnesses to give evidence on issues relating to the personal interests of the victims.

    What the SC judgement means

    • Missed opportunity: The Supreme Court in Rekha Murarkahas missed the opportunity to forward the jurisprudence on victim justice and rectify the lacunae in our laws.
      • Instead, the judgment goes against the jurisprudential current specified above.
      • Indeed, the victim’s right to participation cannot be secured by restricting the rights of the accused.
    • Why the victim’s advocate is not allowed the right to participate in the SC’s opinion: According to the judgment, a victim’s advocate cannot be allowed the right to participate because-
      • First- Insistence by the victim’s counsel to examine a witness deliberately left out by the prosecution may weaken the prosecution’s case;
      • Second– The trial will derogate into a “vindictive battle” between the victim’s counsel and the accused.
      • Third- A lack of experience on the part of the victim’s counsel may lead to lapses.
    • The problem in the SC ruling: The judgment further assumes that prosecutions effectively take the victim’s needs into account.
      • SC ignored why the need for private counsel arise: The judgement ignores the fact that the need for a private counsel arises precisely because intentional or unintentional prosecutorial lapses directly lead to injustice to the victims.
      • The court expects the victim’s counsel to make the prosecutor aware of any aspects that have not been addressed in the examination of witnesses or the arguments advanced by the public prosecutor.
      • In the process, it assumes that the prosecutor will address such lapses.

    Conclusion

    Under the role currently envisaged in our criminal justice system, the public prosecutor cannot sufficiently take into account the interests, needs and requirements of the victims. The cause of victim justice would be greatly served if the Supreme Court decided to revisit its reasoning and assumptions to appropriately amend this provision in light of the above.

     

     

  • Explained: What is Mandamus?

    • The Supreme Court has ruled that reservation in the matter of promotions in public posts is not a fundamental right, and a state cannot be compelled to offer the quota if it chooses not to.
    • It ruled that there  is no fundamental right which inheres in an individual to claim reservation in promotions.
    • Hence no mandamus can be issued by the court directing state governments to provide reservations,” the bench of Justices L Nageswara Rao and Hemant Gupta said.

    What is ‘Mandamus’?

    • Mandamus is among the “prerogative writs” in English common law — meaning the extraordinary writs or orders granted by the Sovereign when ordinary legal remedies are inadequate.
    • These are habeas corpus, mandamus, prohibition, certiorari, and quo warranto.
    • In India, the Supreme Court can issue prerogative writs under Article 32 of the Constitution, and the High Courts under Article 226.
    • Mandamus literally means ‘we command’. When issued to a person or body, the writ of mandamus demands some activity on their part.
    • It orders the person or body to perform a public or quasi-public duty, which they have refused to perform, and where no other adequate legal remedy exists to enforce the performance of that duty.

    When is it used?

    • The writ cannot be issued unless the legal duty is of public nature, and to whose performance the applicant of the writ has a legal right.
    • The remedy is of a discretionary nature — a court can refuse to grant it when an alternative remedy exists.
    • However, for enforcing fundamental rights, the alternative remedy argument does not hold as much weight, since it is the duty of the Supreme Court and the High Courts to enforce fundamental rights.
    • When a public officer or government does an act that violates the fundamental right of a person, the court would issue a writ of mandamus against such authorities so that the person’s rights are not infringed.
    • The writ can also be issued against inferior courts or other judicial bodies when they have refused to exercise their jurisdiction and perform their duty.

    Limitations

    • Under Article 361, mandamus cannot be granted against the President or Governor of a State, “for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties”.
    • The writ also cannot be issued against a private individual or body, except where the State is in collusion with the private party for contravening a provision of the Constitution or a statute.

  • A weak rebuke: It’s unfortunate EC didn’t punish hate speech in Delhi campaign

    Context

    Campaign for the Delhi Assembly election in which the development debate was overshadowed by hate-mongering and outpouring of communal vitriol underscores need to do more.

    Understanding the Model Code of Conduct (MCC)

    • Behavioural guidelines: It is a set of behavioural guidelines for political parties and candidates for-
      • The peaceful conduct of elections.
      • To prevent hate speech.
      • Malpractices.
      • Corruption and
      • Misuse of government machinery by the ruling party.
    • Not judicially enforceable: Since it is not an Act passed by Parliament, the Code is not judicially enforceable.
      • The action against a violator usually takes the form of an advice, warning or censure.
      • No punitive action can be taken.
      • No wonder, many consider the Code as toothless.
    • Moral authority: It is not toothless though. Its moral authority far outweighs its legal sanctity.
      • Political leaders worth their salt are scared of inviting a notice for a violation, as it creates negative public opinion.
      • Besides, unlike the legal processes, its impact is instant.

    The legality of the MCC

    • Test of legality in the courts: The legality of the code has been judicially tested.
      • First legal acceptance: Its first judicial acceptance came in 1997 when the Punjab and Haryana High Court gave the EC the power to enforce the code.
      • “Such a code of conduct when it is seen that it does not violate any of the statutory provisions can certainly be adopted by the Election Commission for the conduct of free and fair election, which should be pure as well,” the Court said.
      • The SC has repeatedly held that this must be enforced strictly.

    Parallels between the MCC and other legal provision

    • The first section of the MCC lays down that-Part 1 (1) “ No party or candidate shall include in any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic.”
    • “
Criticism of other parties or their workers based on unverified allegations or distortion shall be avoided.”
    • Parallels with RPA: The Representation of the People Act (1951) categorically defines the above two as corrupt practices in Section 123 (3A) and Section 123 (4) respectively.
      • Section 125 of RPA provides for punishment for similar violations.
    • Parallels with IPC: It is important to note that Section 153A of the Indian Penal Code has a similar provision:
      • Promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.

     Refreshing change

    • Prompt action: It must be appreciated that the EC was prompt in its action against the leaders accused of hate speech in Delhi election campaign.
      • While it instantly, suo moto, deprived the two leaders of their star campaigner status, it also punished them with a gag order, using the ultimate weapon provided by Article 324.
      • The EC flexing its muscle outside the so-called “toothless” MCC and invoking Article 324 is indeed a refreshing change.
      • In earlier instances, it often had to let the culprits go with a mere “warning, caution or censure”.
      • In its notice to a leader, the EC cited Sections 123 and 125 of the RP Act.

    Conclusion

    • Historically, the EC has always taken simultaneous action under the Model Code of Conduct and the other two provisions. While the MCC produces instant results, the penal provisions involve endless judicial processes. Not taking action under the IPC encouraged violators to commit repeat offences.

     

  • Explained: Regulation of Parliamentary Speech and Conduct

     

    Two days of heated exchanges in Parliament have brought back recurring questions around “unparliamentarily” speech and conduct.

    No absolute privilege

    • Article 105(2) of the Constitution lays down that “no Member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof”.
    • However MPs do not enjoy the freedom to say whatever they want inside the House.

    Checks on MPs’ speech

    • Whatever an MP says is subject to the discipline of the Rules of Parliament, the “good sense” of Members, and the control of proceedings by the Speaker.
    • These checks ensure that MPs cannot use “defamatory or indecent or undignified or unparliamentary words” inside the House.
    • Rule 380 (“Expunction”) of the Rules of Procedure and Conduct of Business in Lok Sabha regulates the speech of MPs.
    • It says: “If the Speaker is of opinion that words have been used in debate which are defamatory or indecent or unparliamentary or undignified, the Speaker may, while exercising discretion order that such words be expunged from the proceedings of the House.”
    • Rule 381 says: “The portion of the proceedings of the House so expunged shall be marked by asterisks and an explanatory footnote shall be inserted in the proceedings as follows: ‘Expunged as ordered by the Chair’.”

    What are Unparliamentary expressions?

    • There are phrases and words, literally in thousands, both in English and in other Indian languages that are “unparliamentary”.
    • The Presiding Officers — Speaker of Lok Sabha and Chairperson of Rajya Sabha — have the job of keeping these bad words out of Parliament’s records.
    • For their reference and help, the Lok Sabha Secretariat has brought out a bulky tome titled ‘Unparliamentary Expressions’, the 2004 edition of which ran into 900 pages.
    • The list contains several words and expressions that would probably be considered rude or offensive in most cultures; however, it also has stuff that is likely to be thought of as being fairly harmless or innocuous.
    • The state legislatures too are guided mainly by the same book, which also draws heavily from unparliamentarily words and phrases used in the Vidhan Sabhas and Vidhan Parishads of India.

    Examples of unparliamentary

    • Among the words and phrases that have been deemed unparliamentary are “scumbag”, “shit”, “badmashi”, “bad” (as in “An MP is a bad man”), and “bandicoot”, which is unparliamentary if an MP uses it for another, but which is fine if he uses it for himself.
    • If the Presiding Officer is a “lady”, no MP can address her as “beloved Chairperson”.
    • The government or another MP cannot be accused of “bluffing”. “Bribe”, “blackmail”, “bribery”, “thief”, “thieves”, “dacoits”, “bucket of shit”, “damn”, “deceive”, “degrade”, and “darling”, are all unparliamentary.
    • MPs or Presiding Officers can’t be accused of being “double minded”, having “double standards”, being of “doubtful honesty”, being “downtrodden”, indulging in “double talk”, being “lazy”, “lousy”, a “nuisance” or a “loudmouth”.
    • No Member or Minister can be accused of having “deliberately concealed”, “concocted”, of being of a “confused mind”, or being “confused and unintelligent”.
    • An illiterate MP can’t be called “angootha chhaap”, and it is unparliamentary to suggest that a member should be sent to the “ajayabghar” (museum).

  • [pib] National Judicial Pay Commission

    The Second National Judicial Pay Commission has filed its report covering the subject of Pay, Pension and Allowances in the Supreme Court.

    Second National Judicial Pay Commission

    • The Commission is headed by former Supreme Court judge P V Reddy.
    • It was set up on the directions of the apex court in May 2017 during the hearing of the All India Judges Association case.

    Key recommendations

    1) Pay

    • It has recommended the adoption of Pay Matrix which has been drawn up by applying the multiplier of 2.81 to the existing pay, commensurate with the percentage of increase of pay of High Court Judges.
    • The highest pay which a District Judge (STS) will get, is Rs.2,24,100/-.

    2)  Pension

    • Pension at 50% of last drawn pay worked out on the basis of proposed revised pay scales is recommended w. e. f. 1-1-2016. The family pension will be 30% of the last drawn pay.
    • Recommendation has been made to discontinue the New Pension Scheme (NPS) which is being applied to those entering service during or after 2004. The old pension system, which is more beneficial to be revived.

    3) Allowances

    • The existing allowances have been suitably increased and certain new features have been added. However, the CCA is proposed to be discontinued.
    • Certain new allowances viz. children education allowance, home orderly allowance, transport allowance in lieu of pool car facility, has been proposed.

  • [op-ed snap] Course correction for the Speaker’s office

    Context 

    Recently the Supreme Court of India recommended that Parliament should rethink as to whether disqualification petitions ought to be entrusted to a Speaker as a quasi-judicial authority when such a Speaker continues to belong to a particular political party either de jure or de facto.

    What the SC recommended?

    • Provision of a ‘Permanent Tribunal’: The SC was of the opinion that Parliament may seriously consider a Constitutional amendment to substitute-
      • The Speaker of the Lok Sabha and Legislative Assemblies with a ‘permanent Tribunal headed by a retired Supreme Court judge or a retired Chief Justice of a High Court.
      • Or some other outside independent mechanism.
    • What the ‘Permanent Tribunal’ achieve?
      • Impartiality and timely decisions: This is to ensure that such disputes are decided both swiftly and impartially.
      • Proper functioning of the democracy: It will give teeth to the provisions contained in the Tenth Schedule, which are so vital in the proper functioning of India’s democracy’.

    Range of functions of the Speaker

    • What is the nature of the duties of the Speaker?
      • Role under 10th schedule: Under 10th Schedule, the nature of duties of the Speaker, is as an “arbiter” or a “quasi-judicial body”. But it also extends to a range of its functions.
      • What other functions are performed by the Speaker? While facilitating the business of the House and to maintain decorum in the House, the Speaker has ‘extensive functions to perform in matters regulatory, administrative and judicial, falling under her domain.
      • She enjoys vast authority under the Constitution and the Rules, as well as inherently’.
      • Ultimate interpreter: She is the ‘ultimate interpreter and arbiter of those provisions which relate to the functioning of the House. Her decisions are final and binding and ordinarily cannot be easily challenged.
      • She decides the duration of debates, can discipline members and even override decisions by committees.
      • A representative of the House: She represents the collective voice of the House and is the sole representative of the House in the international arena’

    Issue of alleged bias

    • Allegations of bias by the Speaker: On several occasions, the Speaker’s role has been questioned on the allegation of bias. The office has been criticised for being an agent of pernicious partisan politics.
      • The Supreme Court has observed in Jagjit Singh versus State of Haryana“
certain questions have been raised about the confidence in the matter of impartiality on some issues having political overtones which are decided by the Speaker in his capacity as a Tribunal.”
    • As a minority view, Justice J.S. Verma in Kihoto Hollohan vs Zachillhu And Others observed: “The Speaker being an authority within the House and his tenure being dependent on the will of the majority therein, the likelihood of suspicion of bias could not be ruled out.”
    • What is the problem with the neutrality of the Speaker? Howsoever desirable the proposition of neutrality maybe, in the present circumstances, it would be unrealistic to expect a Speaker to completely abjure all party considerations.
      • Structural issues: There are structural issues regarding the manner of appointment of the Speaker and her tenure in office.
    • Why the Speaker prefers to maintain party membership: A member is appointed to the office of the Speaker if a motion nominating her is carried in the House.
      • Since the electoral system and conventions in India have ‘not developed to ensure protection to the office, there are cogent reasons for Speakers to retain party membership.
      • Elections are not always by consensus and there have been cases when different parties have fielded their own candidates.
      • All political parties campaign in the constituency of the Speaker.
      • Even if the Speaker is re-elected to the House, the office of the Speaker in India is still open for elections’.
    • Way forward
      • Revamp the structure: What is required is not merely incidental changes in the powers of the Speaker; rather a major revamp in the structure of the office itself is necessary.
      • How to ensure the neutrality of the Speaker? The scheme should be brought wherein Speakers should renounce all political affiliations, membership and activity once they have been elected, both within the Assembly and in the country as a whole.
    • Replicating the UK model:
    • Reference can be sought from the United Kingdom where the ‘main characteristic of the Speaker of the House of Commons is neutrality.
    • Once elected, the Speaker gives up all-partisan affiliation, as in other Parliaments of British tradition, but remains in office until retirement, even though the majority may change.
    • She does not express any political views during debates and is an election candidate without any ticket.
    • Impartiality, fairness and autonomy in decision-making are the hallmarks of a robust institution.
    • It is the freedom from interference and pressures which provide the necessary atmosphere where one can work with an absolute commitment to the cause of neutrality as a constitutional value.

    Conclusion

    At a time when India’s fall in ranks in the latest Democracy Index has evoked concern, it is expected that Parliament will pay heed to the reasoning of the Supreme Court and take steps to strengthen the institution of the Speaker.

     

     

  • Gram Nyayalayas

    The Supreme Court has directed the states, which are yet come out with notifications for establishing Gram Nyayalayas, to do so within four weeks.

    What are Gram Nyayalayas?

    • Gram Nyayalayas were established for speedy and easy access to the justice system in the rural areas across the country.
    • The Gram Nyayalayas Act came into force on October 2, 2009.
    • In terms of Section 3(1) of the Act, it is for the State Governments to establish Gram Nyayalayas in consultation with the respective High Courts.
    • The Act authorizes the Gram Nyayalaya to hold mobile court outside its headquarters.
    • However, the Act has not been enforced properly, with only 208 functional Gram Nyayalayas in the country ( Sept. 2019) against a target of 5000 such courts.
    • The major reasons behind the non-enforcement include financial constraints, reluctance of lawyers, police and other government officials.

    Features of the Gram Nyayalayas

    • Gram Nyayalaya are established generally at headquarter of every Panchayat at intermediate level or a group of contiguous panchayat in a district where there is no panchayat at intermediate level.
    • The Gram Nyayalayas are presided over by a Nyayadhikari, who will have the same power, enjoy same salary and benefits of a Judicial Magistrate of First Class.
    • Such Nyayadhikari are to be appointed by the State Government in consultation with the respective High Court.

    Jurisdiction

    • A Gram Nyayalaya have jurisdiction over an area specified by a notification by the State Government in consultation with the respective High Court.
    • The Court can function as a mobile court at any place within the jurisdiction of such Gram Nyayalaya, after giving wide publicity to that regards.
    • The Gram Nyayalayas have both civil and criminal jurisdiction over the offences and nature of suits specified in the First, Second and Third schedule of the Act.
    • The pecuniary jurisdiction of the Nyayalayas are fixed by the respective High Courts.
    • Appeals in criminal matter can be made to the Sessions Court in the respective jurisdiction and in civil matters to the District Court within a period of one month from the date of judgment.

    Trials

    • Gram Nyayalayas can follow special procedures in civil matters, in a manner it deem just and reasonable in the interest of justice.
    • Civil suits are proceeded on a day-to-day basis, with limited adjournments and are to be disposed of within a period of six months from the date of institution of the suit.
    • In execution of a decree, the Court can allow special procedures following rules of natural justice.
    • Gram Nyayalayas allow for conciliation of the dispute and settlement of the same in the first instance.
    • Gram Nyayalayas has been given power to accept certain evidences which would otherwise not be acceptable under Indian Evidence Act.

  • [op-ed snap] Optimal delivery or mere optics in Bodo peace deal?

    Context

    It is to be seen if the pact will lead to true autonomy, true peace, and true development.

    What the pact involved?

    • Which groups signed the deal?
      • Four factions of the National Democratic Front of Bodoland (NDFB), along with an influential Bodo students’ organization and a Bodo civilian pressure group, signed the peace agreement with the central and Assam governments.
    • What are the major concessions given?
      • The Bodoland Territorial Area Districts, the name given to Kokrajhar, Baksa, Chirang and Udalguri, the four contiguous districts bordering Bhutan and Arunachal Pradesh, will now be known as Bodoland Territorial Region.
      • Acknowledgement of Bodo homeland: The changed nuance from districts to the region is significant as it acknowledges a Bodo homeland within the state of Assam, without separating from Assam.
      • Why this acknowledgement matters: This is dialled down from earlier rebel demands for a breakaway state and later suggestions for Union territory status.
    • What is the significance of the change from district to the region?
      • Satisfying identity aspiration: The renaming is designed to satisfy the identity and aspirations of the Bodo people.
      • Not ceding territory solved tricky matter: Renaming also solved the politically tricky matter of ceding territory for the government of Assam.
      • Ceding territory would also have fuelled similar demands from the other parts of the state like- Karbi Anglong, Dima Hasao and Cachar, which also have homelands of non-Ahom ethnicities.
      • Avoiding similar demand from other states: Indeed, it could have affected the ongoing Naga peace process, leading Naga rebels to demand territorial and administrative autonomy in Naga homelands in Manipur.

    Scope of the success of the pact

    • Inherent vulnerability: There is already an inherent vulnerability to the Bodo peace deal even without the overhang of ceding territory.
      • This is rooted in the birth of the Bodo rebellion, which began in the 1980s on account of administrative and development apathy of the state of Assam.
    • Feeling of subsuming in Bodo: A feeling that Bodo, the people, the language, the identity, was subsumed by the Assamese and migrants.
    • The relation between NDFB and the Front: The Bodoland People’s Front, is in majority in the District council. Will the front be comfortable with newly peaceable colleagues of NDFB?

    Conclusion

    The Government of Assam needs to ensure that the pact signed changes the situation on the ground and leads to a development on the ground. The state also needs to allay the fears in the Bengali-speaking minority. Moreover, true autonomy, true peace, and true development are always worth more than the paper on which they are promised.