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Subject: Polity

  • 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.

  • President’s Address

     

    Today, with the first day of the Budget Session of Parliament, Hon’ble President will address a joint sitting of the two Houses.

    President’s or Governor’s Address

    • Commonly referred to as the President’s or Governor’s Address, they are a constitutional requirement.
    • The Constitution gives the President and the Governor the power to address a sitting of the legislature. The special power is with regard to two occasions.
    • The first is to address the opening session of a new legislature after a general election. The second is to address the first sitting of the legislature each year.
    • A session of a new or a continuing legislature cannot begin without fulfilling this requirement.
    • When the Constitution came into force, the President was required to address each session of Parliament.
    • So during the provisional Parliament in 1950, the President gave an address for all three sessions. At the suggestion of Speaker G V Mavalankar, the first Constitutional Amendment in 1951 changed this position.
    • Besides being a constitutional requirement, the President’s or Governor’s Address is keenly watched as it outlines the government’s policy agenda and stand on issues.

    What procedures follow the address?

    • After the President or Governor delivers the address, a debate takes place not only on the contents of the address but also the broad issues of governance in the country.
    • This then paves the way for discussion on the Budget.

    Significance of the address

    • The President’s Address in India is mirrored on the British system.
    • During the framing of the Constitution, B R Ambedkar drew a similarity between the President and the monarch under the English system.
    • He said the President “is the Head of State but not of the executive. He represents the nation but does not rule the nation.
    • He is the symbol of the nation. His place in the administration is that of a ceremonial device of a seal by which the nation’s decisions are made known”.
    • The Constitution binds the President and the Governor to act on the aid and advice of the Council of Ministers of the Union and state governments respectively, on a majority of issues.
    • Therefore, the speech that the President or the Governor reads before the legislature is the viewpoint of the government and is prepared by it.

    Are there parallels in other countries?

    • Similar provisions exist in other democracies. In the United States, it is referred to as the “State of the Union”.
    • The phrase comes from an article in the US Constitution which specifies that the President from time to time give to Congress information of the State of the Union and recommend measures as he shall judge necessary and expedient.
    • In the United Kingdom, it is referred to as the Queen’s Speech and is part of the ceremony to mark the formal start of the parliamentary year.

    What is the content of the President’s or Governor’s address?

    • During the making of the Constitution, an unsuccessful attempt was made to bring some specificity to the content of the President’s Address.
    • The President’s speech follows the convention of the British system, where it contains legislative and policy proposals that the government intends to initiate.
    • The speech also recaps the government’s accomplishment in the previous years. The contents of the speech are put together by aggregating inputs from various ministries of the government.

    Is the text of the speech binding?

    • The President or a Governor cannot refuse to perform the constitutional duty of delivering an address to the legislature.
    • But there can be situations when they deviate from the text of the speech prepared by the government.
    • So far, there have been no instances of President doing so. But there has been an occasion when a Governor skipped a portion of the address to the Assembly.
    • In 1969, the Governor of West Bengal skipped two paragraphs of the address prepared by the United Front government.
    • The skipped portion described as unconstitutional the dismissal of the first United Front government by the Congress-ruled central government. The issue was then debated in Parliament.
    • The Opposition was critical of the Governor’s conduct and moved a motion disapproving it. But the motion was ultimately defeated.

    How have members responded to the addresses over the years?

    • The conduct of MLAs during the address has sometimes been an issue.
    • The Governor’s speech in state legislatures has routinely been interrupted.
    • In Parliament, the first instance of interruption of a President’s speech happened in 1963; President Sarvepalli Radhakrishnan was speaking when some MPs interrupted him.
    • The Lok Sabha took note of the incident and a reprimand was issued to the MPs.
    • Over the years, political parties have resolved to treat the President’s Address sacrosanct and agreed not to interrupt it.

  • Comprehensive Bodo Settlement Agreement

     

    • The MHA, the Assam government and the Bodo groups have signed an agreement to redraw and rename the Bodoland Territorial Area District (BTAD) in Assam, currently spread over four districts of Kokrajhar, Chirang, Baksa and Udalguri.
    • Several Bodo groups led have been demanding a separate land for the ethnic community since 1972, a movement that has claimed nearly 4,000 lives.

    Background

    • The first Bodo accord was signed with the ABSU in 1993, leading to the creation of a Bodoland Autonomous Council with limited political powers.
    • The BTC was created in 2003 with some more financial and other powers.
    • The BTAD and other areas mentioned under the Sixth Schedule of the Constitution have been exempted from the Citizenship (Amendment) Act, 2019.

    Highlights of the Agreement

    • As per the agreement, villages dominated by Bodos that were presently outside the BTAD would be included and those with non-Bodo population would be excluded.
    • Bodos living in the hills would be conferred a Scheduled Hill Tribe status.
    • The BTAD is to be renamed as the Bodoland Territorial Region (BTR).

    Rehabilitation and relief

    • The criminal cases registered against members of the NDFB factions for “non-heinous” crimes shall be withdrawn by the Assam government and in cases of heinous crimes it will be reviewed.
    • A Special Development Package of Rs. 1500 Crore would be given by the Centre to undertake specific projects for the development of Bodo areas.

    A separate Commission

    • It proposes to set up a commission under Section 14 of the Sixth Schedule to the Constitution which will recommend the inclusion or exclusion of tribal population residing in villages adjoining BTAD areas.
    • In this commission, besides State government, there will be representatives from ABSU and BTC. It will submit its recommendation within six months.

    Changes in Legislature

    • The total number of Assembly seats will go up to 60, from the existing 40.
    • The present settlement has a proposal to give more legislative, executive, administrative and financial powers to BTC.

    Bodo as an official language

    • The Assam government will also notify Bodo language as an associate official language in the state and will set up a separate directorate for Bodo medium schools.
    • Bodo with Devnagri script would be the associate official language for the entire Assam.

    Significance of the agreement

    • The signing of the agreement would “end the 50-year-old Bodo crisis.”
    • Around 1500 cadres of BODO militant factions will be rehabilitated by Centre and Assam Government.

  • Legislative Councils and its abolition

    The Andhra Pradesh Assembly recently passed a resolution to abolish the state’s Legislative Council (LC).

    Legislative Councils

    • The LC or Vidhan Parishad is the upper house in those states that have a bicameral legislature; the lower house being the State Legislative Assembly.
    • Its establishment is defined in Article 169 of the Constitution of India.
    • Each Member of the State LC serves for a six-year term, with terms staggered so that the terms of one third of a State Legislative Council’s membership expire every two years.
    • This arrangement parallels that for the Rajya Sabha, the upper house of the Parliament of India.
    • Q member of LC must be a citizen of India, at least 30 years old, mentally sound, not an insolvent, and must be enrolled on the voters’ list of the state for which he or she is contesting an election.
    • Under Article 171, a Council cannot have more than a third of the number of MLAs in the state, and not less than 40 members.

    Representation in an LC

    MLCs are chosen in the following manner:

    • One third are elected by the members of local bodies such as municipalities, Gram panchayats, Panchayat samitis and district councils.
    • One third are elected by the members of Legislative Assembly of the State from among the persons who are not members of the State Legislative Assembly.
    • One sixth are nominated by the governor from persons having knowledge or practical experience in fields such as literature, science, arts, the co-operative movement and social service.
    • One twelfth are elected by persons who are graduates of three years’ standing residing in that state.
    • One twelfth are elected by persons engaged for at least three years in teaching in educational institutions within the state not lower than secondary schools, including colleges and universities.

    Abolition of LC

    • Article 169(1) of the Constitution allows Parliament to either create or abolish a Council in a state “if the Legislative Assembly of the State passes a resolution to that effect.
    • The resolution must by a majority of the total membership of the Assembly and by a majority of not less than two-thirds of the members of the Assembly present and voting.

    Councils in the Constitution

    • Under Article 168, states can have either one or two Houses of legislature. Article 169 leaves the choice of having a Vidhan Parishad to individual states.
    • The Constituent Assembly was divided on having a second chamber in the states.
    • It was argued that a second House can help check hasty actions by the directly elected House, and also enable non-elected persons to contribute to the legislative process.
    • However, it was also felt that some of the poorer states could ill afford the extravagance of two Houses.
    • It has been pointed out that the Councils can be used to delay important legislation, and to park leaders who have not been able to win an election.

    Councils in other states

    • Besides Andhra Pradesh, five other states have Vidhan Parishads — Bihar (58 members), Karnataka (75), Maharashtra (78), Telangana (40), UP (100).
    • Jammu and Kashmir had a Council until the state was bifurcated into the Union Territories of J&K and Ladakh.
    • In 1986, the M G Ramachandran government in Tamil Nadu abolished the Council.
    • The DMK government passed a law revives it, but the subsequent J Jayalalithaa-led government withdrew it after coming to power in 2010.
    • The Odisha Assembly has passed a resolution for a Legislative Council. Proposals to create Councils in Rajasthan and Assam are pending in Rajya Sabha.

  • [op-ed of snap] The four phases of constitutional interpretation

    Context

    The ways in which the Constitution of India is interpreted has undergone changes through four phases.

    Constitution-An Ambitious political experiment

    • Indian Constitution was an ambitious political experiment for the following reasons-
      • Universal Adult Franchise: India began its journey with the universal adult franchise.
      • Federalism: Federalism in a region consisting of over 550 princely States.
      • The promise of Equality: The Constitution was a sort of social revolution in a deeply unequal society with the promise of equality.
      • Unique constitutional design: it was equally a unique achievement in terms of constitutional design.

    The first phase of interpretation-Focus on text

    • A textualist approach-focusing on the plain meaning of the words: In its early years, the Supreme Court adopted a textualist approach, focusing on the plain meaning of the words used in the Constitution.
      • K. Gopalan v. State of Madras (1950) was one of the early decisions in which the Court was called upon to interpret the fundamental rights under Part III.
      • The leader of the Communist Party of India claimed that preventive detention legislation under which he was detained was inconsistent with Articles 19 (the right to freedom), 21 (the right to life) and 22 (the protection against arbitrary arrest and detention).
      • Fundamental rights separate from each other: The Supreme Court decided in A. K. Gopalan case that each of those articles covered entirely different subject matter, and were to be read as separate codes rather than being read together.
    • Unlimited Amendment Power: In its early years, the Court read the Constitution literally, concluding that there were no limitations on the Parliament’s power to amend the Constitution.

    The second phase of interpretation-Focus on ‘basic structure’

    • Appeals to the structure and coherence: Appeals to the text of the Constitution were gradually overtaken by appeals to the Constitution’s overall structure and coherence.
      • Limited Amendment Power-Kesavananda Bharati case: In the leading case of Kesavananda Bharati v. State of Kerala(1973), the Court concluded that Parliament’s power to amend the Constitution did not extend to altering its “basic structure”.
      • What is the “Basic Structure”: The basic structure is an open-ended list of features that lie within the exclusive control of the Court.
      • When Parliament attempted to overturn this decision by amending the Constitution yet again, the Court, relying on structuralist justifications, decisively rejected that attempt.
    • Key takeaways from Kesavananda Bharati case
      • Limited Amendment Power: In this case, the Court pronounced that Parliament’s power to amend the Constitution is not unlimited.
      • Fundamental rights as a cohesive bill of rights: In this phase, the Court also categorically rejected the Gopalan approach in favour of a structuralist one.
      • Maneka Gandhi v. Union of India (1978):  Through decision, in this case, the Court conceived of the fundamental rights as a cohesive bill of rights rather than a miscellaneous grouping of constitutional guarantees.
      • Incremental interpretation of Right to Life: The right to life was incrementally interpreted to include a wide range of rights such as clean air, speedy trial, and free legal aid.
      • Courts playing role in governance: The incremental interpretation of Article 21 paved the way for the Supreme Court to play an unprecedented role in the governance of the nation.
    • What was common in the first two phases?
      • Interpretation done by Constitutional Benches: That significant decisions involving the interpretation of the Constitution were entrusted to Constitution Benches (comprising five or more judges of court) and were carefully (even if incorrectly) reasoned.
      • Little scope for precedential confusion: There was limited scope for precedential confusion, since matters which had been decided by Constitution Benches and which demanded reconsideration were referred to larger Constitution Benches.

    Third Phase of interpretation-Eclecticism

    • Different opinions on the same issues: In the third phase the Supreme Court started to give different opinions on the same issues-i.e. it engaged in eclecticism.
      • Lesser reasoning: The Court often surrendered its responsibility of engaging in a thorough rights reasoning of the issues before it.
      • Two factors underpinned this institutional failure.
    • First-Change in the structure of the SC: The changing structure of the Court, which at its inception began with eight judges, grew to a sanctioned strength of 31; it is currently 34.
    • It began to sit in panels of two or three judges, effectively transforming it into a “polyvocal” group of about a dozen sub-Supreme Courts.
    • Second-expansion of own role by the SC-The Court began deciding cases based on a certain conception of its own role -whether as a sentinel of democracy or protector of the market economy.
    • The focus of the judgement on the result rather than reason: This unique decision-making process sidelined reason-giving in preference to arriving at outcomes that match the Court’s perception.
    • Consequences of the eclecticism
      • Rise of doctrinal incoherence and inconsistency: The failure to give reasons contributed not only to methodological incoherence but also to serious doctrinal incoherence and inconsistency across the law.
      • Conflicting decisions and interpretations: This approach can be best described as panchayati eclecticism, with different Benches adopting inconsistent interpretive approaches based on their conception of the Court’s role, and arriving at conclusions that were often in tension with one another.
      • Decision detached from precedents and established methods: The imagery that panchayati eclecticism is meant to invoke is that of a group of wise men and women (applying the analogy, sub-Supreme Courts), taking decisions based on notions of fairness that are detached from precedent, doctrine and established interpretive methods.

    Fourth phase- based on the purpose

    • Purpose of enactment of the Constitution as critical: In the fourth phase, the Court has acknowledged as critical to its interpretive exercise the purpose for which the Constitution has been enacted.
    • The realisation of revolutionary and transformative potential: The Court is now beginning to interpret the Constitution in accordance with its revolutionary and transformative potential.
      • Renaissance in decisions: With about a dozen significant Constitution Bench decisions from the Supreme Court since September 2018, there has been a renaissance in decision-making by Constitution Benches.
      • The most important decisions of this period include-
      • Court’s decisions striking down Section 377 and the criminal offence of adultery.
      • And including the office of the Chief Justice of India within the scope of the Right to Information Act.

    Conclusion

    With the interpretation process entering in the fourth phase-realising the purpose of enactment of the Constitution- Indian judiciary is on the right track, however, facets of phase 3 continue to linger on it. The Supreme Court must avoid getting in phase three mode to in order to realise the purpose it was entrusted with.