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Subject: Polity

  • The top court as custodian of liberties    

    Why in the News?

    • Delhi Deputy Chief Minister Manish Sisodia was arrested in early 2023 by the CBI and ED in the Delhi liquor policy case. After nearly a year and a half in prison, the Supreme Court of India granted him bail, underscoring that bail should not be used as a form of punishment.

    Previous judgments on the ‘Right to Speedy Trial’:

    1. The Supreme Court referenced its earlier judgments, including Kashmira Singh (1977), P. Chidambaram (2020), and Satender Kumar Antil (2022), which establish that the right to a speedy trial is fundamental under Article 21 of the Constitution.
    2. The Court’s decision in Arnab Manoranjan Goswami vs The State of Maharashtra and Ors. (2020) was cited, reinforcing that liberty is a core component of constitutionalism.
    3. In recent scenario, the SC relied on its earlier order dated October 30, 2023, in Manish Sisodia vs Central Bureau of Investigation, which highlighted concerns about the large volume of evidence (56,000 pages of documents and 456 witnesses) potentially causing significant delays in trial proceedings.

    What are the present limitations?

    • Prolonged Incarceration: The ruling pointed out that the legal system often leads to excessive delays, which can result in individuals being punished without trial.
    • Dependence on Prosecutorial Statements: A concern was raised about the reliance on the prosecution’s assurances regarding the timeline for trial completion.  

    ‘Guarantee of Civil Liberties’:

    • Constitutional Foundation: The Supreme Court emphasized that individual liberties should not be contingent on the discretion of the prosecution.
      • In judgments like Maneka Gandhi v. Union of India (1978), the Court expanded the understanding of due process, emphasising that any deprivation of liberty must follow fair, just, and reasonable procedures.
    • Judicial Responsibility: The judgment aims to prevent the misuse of stringent laws like the Prevention of Money Laundering Act (PMLA) and to uphold the dignity and rights of individuals.
      • In Rana Ayyub v. Directorate of Enforcement (2023), the Supreme Court emphasized judicial oversight in PMLA enforcement while ensuring trials follow underlying offenses.
    • Public’s trust on Judiciary: Presently, the Apex Court pointed out the flawed tendency of some judges to deny bail unnecessarily, ignoring the principle of timely trials. This may lead to loss of public trust in the judiciary.
    • Call for Systemic Change: The ruling urges a reevaluation of the political and legal systems to prioritize justice and individual rights over personal vendettas.
      • State of Maharashtra v. Rani Kusum (2005) underscores the necessity for reforms to address delays in the judicial process.
    • Bail is the Rule, Not the Exception: The Supreme Court’s decision in granting bail to Manish Sisodia reinforces the principle that bail is the rule, not the exception.

    Way forward: 

    • Adherence to procedural deadlines: In this situation, courts should enforce stricter adherence to procedural deadlines and prioritize cases involving prolonged incarceration to safeguard the right to a speedy trial.
    • Independent oversight committees: Need to establish independent oversight committees to regularly review cases of prolonged incarceration without trial, ensuring accountability and reducing reliance on prosecutorial assurances alone.

    Mains PYQ:

    Q What was held in the Coelho case? In this context, can you say that judicial review is of key importance amongst the basic features of the Constitution? (UPSC IAS/2016)

  • [12th August 2024] The Hindu Op-ed: Parties, serious crimes and the need for judicial clarity

    [12th August 2024] The Hindu Op-ed: Parties, serious crimes and the need for judicial clarity

    PYQ Relevance:Mains: 

    Q) Money laundering poses a serious security threat to a country’s economic sovereignty. What is its significance for India and what steps are required to be taken to control this menace? (2013)

    Q) Discuss how emerging technologies and globalisation contribute to money laundering. Elaborate measures to tackle the problem of money laundering both at national and international levels. (2021)

    Note4Students: 

    Mains: Issues related to Section 70 of the PMLA;

    Mentor comments: Two recent Supreme Court observations in the bail petitions of Delhi CM Arvind Kejriwal and ex-Deputy CM Manish Sisodia highlight significant legal issues. Justice Sanjiv Khanna’s Bench questioned the role of the Aam Aadmi Party (AAP) in a PMLA case involving its leaders, asking if the party itself could be made an accused. This led the Enforcement Directorate to include AAP as an accused in Mr. Kejriwal’s case, marking the first time a political party is implicated under PMLA. This raises serious concerns given the pivotal role of parties in a parliamentary democracy.

    Let’s learn! 

    —

    Why in the News?

    Two Supreme Court Benches questioned the role of political parties under the PMLA, leading to AAP being accused, which raises important constitutional issues.

    About PMLA: 

    The Prevention of Money Laundering Act, 2002 (PMLA) is a significant piece of legislation in India aimed at combating money laundering and related financial crimes. 

    Objectives:
    1. The PMLA is designed to prevent the process of money laundering, which involves concealing the origins of illegally obtained money.
    2. The Act provides for the confiscation of properties derived from or involved in money laundering activities.It establishes mechanisms for the detection and investigation of money laundering offenses.

    Issues related to Section 70 of the PMLA:

    • Application of Section 70 of PMLA to Political Parties: The legal question arises whether political parties can be categorized under the definition of “company” or “association of individuals” as per Section 70 of the PMLA. The law typically applies to bodies corporate or firms, which are transactional entities, unlike political parties.
    • Distinction in Definitions: Section 29A of the Representation of the People Act (RPA), 1951, defines a political party as an association of citizens that calls itself a political party. This specific designation creates a legal distinction between general associations of individuals and political parties, it means political parties may not be intended to fall under the scope of Section 70 of the PMLA.
    • Ejusdem Generis Interpretation: The legal principle of ejusdem generis suggests that “association of individuals” under Section 70 should be interpreted as entities similar to bodies corporate or firms. Since political parties are not engaged in business or transactional activities like these entities, their inclusion under Section 70 is legally questionable.

    Issues related to Policy and criminality

    • Cabinet Decision-Making and Accountability: The cabinet, as the highest decision-making body in a parliamentary democracy, is collectively responsible for policy decisions. The judiciary typically does not examine the motives or correctness of cabinet policies, focusing instead on the process and legality. Charging individual ministers with criminality for collective cabinet decisions undermines the collective principle.
    • Ivor Jennings’ View on Cabinet Role: Constitutional authority Ivor Jennings describes the cabinet as the “directing body of national policy,” emphasizing that it is accountable to the legislature and ultimately to the people, who can disapprove of policies through democratic processes.
    • Policy vs. Criminality in Judicial Interpretation: The observation by the Bench in Mr. Sisodia’s case highlights the difficulty in drawing a line between policy decisions and criminal actions. Criminal charges against individual ministers for decisions made by the cabinet may disrupt the functioning of the cabinet and are legally unsustainable in a parliamentary democracy.

    Way forward: 

    • Clarification through Legislative Amendment: To address the ambiguity surrounding the applicability of Section 70 of the PMLA to political parties, the legislature could consider amending the PMLA to explicitly clarify whether political parties fall under the definition of “association of individuals.” This would provide legal certainty and prevent potential misuse or misinterpretation of the law.
    • Judicial Guidelines on Policy and Criminality: The judiciary could establish clear guidelines on the distinction between policy decisions made by the cabinet and criminal actions taken by individual ministers. These guidelines would help ensure that the cabinet’s collective responsibility is preserved while allowing for accountability in cases of individual misconduct that fall outside the scope of legitimate policy-making.

  • Opposition to move No-Confidence Motion against VP

    Why in the News?

    As many as 50 Opposition MPs have reportedly signed a resolution to bring a no-confidence motion against Vice-President (Rajya Sabha Chairman) Jagdeep Dhankhar.

    No-Confidence Motion against Vice President of India

    Details
    Provision Article 67(b) of the Indian Constitution
    Who Can Initiate Can only be introduced in the Rajya Sabha, not the Lok Sabha.
    Notice Requirement At least 14 days’ advance notice must be given before moving the resolution.
    Voting in Rajya Sabha Requires an effective majority (majority of all members present and voting) in the Rajya Sabha.
    Voting in Lok Sabha Requires a simple majority (more than 50% of members present and voting) in the Lok Sabha.
    Grounds for Removal Constitution does not specify any grounds or justifications for the removal of the Vice President.
    Temporary Vacancy If the Vice President is removed -> Deputy Chairman of the Rajya Sabha assumes the role of Chairman.
    Historical Context No Vice President has ever been removed under this Article in Indian parliamentary history.

     

    PYQ:

    [2013] Consider the following statements:

    1. The Chairman and the Deputy Chairman of the Rajya Sabha are not the members of that House.

    2. While the nominated members of the two Houses of the Parliament have no voting right in the

    Presidential election, they have the right to vote in the election of the Vice President.

    Which of the statements given above is/are correct?

    (a) 1 only

    (b) 2 only

    (c) Both 1 and 2

    (d) Neither 1 nor 2

  • Opposition moves Privilege Motion against Education Minister

    Why in the News?

    • The opposition has submitted a notice in the Rajya Sabha to initiate privilege proceedings against Union Education Minister.
      • It is alleged that the Minister ‘misled’ the House regarding the issue of the Preamble to the Constitution being ‘dropped’ from certain NCERT textbooks.

    What is a Privilege Motion?

    Details
    What is it?
    • A formal notice by an MP when rights or privileges of Parliament or its members are breached.
    • Parliamentary privilege refers to the right and immunity enjoyed by legislatures (Article 105).
    Who can move such motion? Any Member of Parliament (MP) from Lok Sabha or Rajya Sabha.
    Governing Rules
    • Lok Sabha Rule book: Rule 222, Chapter 20
    • Rajya Sabha Rule book: Rule 187, Chapter 16
    Procedure
    • Requires consent from Speaker/Chairperson;
    • Notice must concern a recent incident needing House intervention.
    Role of Speaker/Chairperson
    • First level of scrutiny;
    • Can decide on the motion or refer it to the Privileges Committee.
    Privileges Committee
    • Lok Sabha: 15 members, nominated by Speaker
    • Rajya Sabha: 10 members, headed by Deputy Chairperson
    Outcome
    • Committee submits a report;
    • House may debate and pass a resolution based on the report.
    Historical Example 1978: Privilege motion against Indira Gandhi, leading to her expulsion from the Lok Sabha.
    Legal Implications
    • If a breach of privilege is established, the Parliament has the authority to impose penalties. 
    • These can range from a reprimand to expulsion from the House, depending on the severity of the breach.

     

    PYQ:

    [2014] Consider the following statements regarding a No-Confidence Motion in India:

    1. There is no mention of a No-Confidence Motion in the Constitution of India.

    2. A Motion of No-Confidence can be introduced in the Lok Sabha only.

    Which of the statements given above is/are correct?

    (a) 1 only

    (b) 2 only

    (c) Both 1 and 2

    (d) Neither 1 nor 2

  • Supreme Court to review PMLA verdict     

    Why in the news?

    The Supreme Court has postponed its review of the decision to uphold key provisions of the Prevention of Money Laundering Act, 2002 (PMLA) to August 28.

    Prevention of Money Laundering Act, 2002 (PMLA)

    • The Prevention of Money Laundering Act, 2002 (PMLA) is a crucial legislative framework in India aimed at combating money laundering and related financial crimes.
    • The PMLA was enacted by the Parliament of India and came into force on July 1, 2005. It was introduced to prevent money laundering and provide for the confiscation of property derived from or involved in money laundering.
    • The main objectives of the PMLA are:
      • To prevent and control money laundering.
      • To confiscate and seize property obtained from laundered money.
      • To address issues connected with money laundering in India.

    What is the Case?

    •  On July 27, 2022, the Supreme Court upheld key provisions of the Prevention of Money Laundering Act, 2002 (PMLA) in the case of “Vijay Madanlal Choudhary v. Union of India”.
      • The 540-page ruling accepted the government’s arguments on all challenged aspects, including reversing the presumption of innocence for bail, passing amendments as a Money Bill, and defining the Enforcement Directorate’s (ED) powers.
    • On August 25, 2022, a different three-judge bench agreed to hear a review petition filed by Congress MP Karti Chidambaram. The petition raised concerns about at least two issues from the Madanlal decision.

    What are the Grounds for Review?

    • The Supreme Court’s verdict in Madanlal upheld stringent bail conditions for economic offences, imposing a reverse burden of proof on the accused.
    • Petitioners argue that, without essential documents like an FIR, charge sheet, case diary, and prosecution documents, an accused cannot adequately present their case.
    • The Madanlal verdict upheld Section 50 of the PMLA, allowing ED officials to record statements under oath, admissible in court. It distinguished ED officers from police officers, classifying their investigations as “inquiries.” Petitioners argue that the verdict overlooked provisions granting penal powers to the ED.

    How is a Judgment Reviewed?

    • The Supreme Court can review its judgments or orders under Article 137 of the Constitution.
    • A review petition must be filed within 30 days of the judgment. Typically, review petitions are heard through written submissions (“circulation”) by the same judges who passed the original verdict, rather than in open court.
    • Reviews are granted on narrow grounds to correct grave errors causing a miscarriage of justice. One common ground is “a mistake apparent on the face of the record,” which must be glaring and obvious, such as reliance on invalid case law.

    Way forward: 

    • Enhanced Transparency and Documentation: To address concerns about the adequacy of case presentation by the accused, there should be a mandate for providing all essential documents such as FIRs, charge sheets, case diaries, and prosecution documents to ensure a fair trial process.
    • Clarification of ED’s Powers and Procedures: Amendments to the PMLA should clearly define the scope and limits of the Enforcement Directorate’s powers, ensuring that ED officers are given appropriate procedural guidelines and oversight mechanisms to prevent misuse of penal powers and uphold due process.

  • On UP’s stringent Anti-conversion law     

    Why in the news?

    The UP Assembly’s amendments to its regressive ‘Anti-conversion’ law appear aimed at facilitating misuse, with over 400 cases registered since the original 2021 law.

    What is UP’s ‘Anti-conversion’ law?

    • Uttar Pradesh’s “Anti-conversion” law, officially known as the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021, prohibits religious conversion through unlawful means such as misrepresentation, force, undue influence, coercion, allurement, or fraudulent means.

    Why was the Original 2021 Anti-Conversion Law Amended by UP?

    • Increased Stringency: The amendments aim to make the original law more stringent, responding to claims of rising cases of forced conversions and the alleged involvement of foreign and anti-national elements in demographic changes.
    • Response to Public Discontent: The government cited the need to enhance penalties and legal measures to prevent unlawful conversions, particularly concerning vulnerable groups such as minors and women.
    • Legitimacy of Complaints: The amendment allows third parties to file complaints about alleged unlawful conversions, expanding the scope of the law and potentially increasing its application against inter-faith marriages.

    What are Its concerning features?

    • Harsh Penalties: The amended law introduces severe penalties, including imprisonment of up to 20 years or life for targeting minors, women, or certain communities through coercion or force.
    • Bail Conditions: The law imposes stringent bail conditions that make it difficult for accused individuals to secure bail, requiring public prosecutor consent and a presumption of guilt.
    • Third-Party Complaints: The provision allowing anyone to file complaints against alleged conversions opens the door for misuse by communal organizations and individuals with vested interests, potentially targeting inter-faith couples.

    What does it state about bail conditions and ‘foreign funding’?

    • Bail conditions: The amended law states that an accused individual cannot be granted bail unless the public prosecutor has the opportunity to oppose it, and there is reason to believe the accused is not guilty and unlikely to repeat the offence.
    • Foreign funding: The law prescribes stiff penalties for receiving funds from foreign organizations for unlawful conversion, with fines and imprisonment aimed at deterring financial support for conversion activities.

    How is it different from other states?

    • Comparison with Other States: While several states like Odisha and Madhya Pradesh have anti-conversion laws, Uttar Pradesh’s amendments are notably harsher, including provisions for life imprisonment, which are not present in other states.
    • Bail and Proof Burden: Other states may not impose such severe bail conditions or the reverse burden of proof required in Uttar Pradesh, making it easier for accused individuals in those states to secure bail.
    • Scope of Complaints: In many states, only aggrieved individuals or their close relatives can file complaints, whereas Uttar Pradesh’s amendments allow for broader third-party complaints, increasing the potential for misuse.

    Way forward:

    • Promote Awareness of Rights: Implement comprehensive public awareness campaigns to educate citizens about their legal rights concerning religious conversion and inter-faith marriages.
    • Legal and Constitutional Review: Stakeholders, including civil society organizations and legal experts, should actively pursue legal challenges against the amended law in the Supreme Court of India.

  • Anti-Defection Law: Features, limitations and reforms

    Why in the News?

    • Numerous examples in recent time exist in the history of Parliament and State Assemblies where MPs or MLAs have defected from their party.
      • These activities often led to the frequent falling of governments.

    What is Anti-Defection Law?

    • The 52nd Constitutional Amendment introduced the anti-defection law through the Tenth Schedule in 1985.
    • It aimed at tackling political defections destabilizing governments, especially after the 1967 general elections.
    • According to this Schedule, a member of the State Legislature or the House of Parliament who voluntarily resigns from their political party or abstains from voting in the House contrary to the party’s instruction may be removed from the House.
    • This voting instruction is issued by the party whip, a member of the parliamentary party nominated by the political party in the House.

    Process of Disqualification under Anti-Defection Law

    • Petition:
      • Any member of the House can initiate the process by filing a petition/complaint with the Speaker (Lok Sabha) or Chairman (Rajya Sabha) alleging defection by another member.
      • The Presiding Officer CANNOT initiate disqualification proceedings suo moto and can only act upon a formal complaint.
    • Deciding Authority:
      • The Speaker of Lok Sabha, the Chairman of Rajya Sabha, or the State Legislative Assembly decides disqualification petitions under the anti-defection law.
    • Timeframe:
      • The law does not specify a strict timeline for the decision, which has led to criticism due to potential delays.
    • Judicial Review:
      • The decision can be challenged in courts, ensuring a system of checks and balances.
      • The landmark judgment in Kihoto Hollohan vs. Zachillhu and Others (1992) upheld the constitutionality of the anti-defection law and affirmed that decisions regarding disqualification are subject to judicial review.
    • Exceptions:
      • No disqualification if 1/3rd members of the legislature party split to form a separate group (provision DELETED by the 91st Amendment in 2003).
      • Mergers of political parties are allowed when 2/3rd of the members of a legislative party agree to merge with another party.

    Three-Test Formula of the Supreme Court:

    • The Supreme Court in Sadiq Ali versus Election Commission of India (1971) laid down the three-test formula for recognizing the original political party:
    1. Test of Aims and Objectives of the party.
    2. Test of Party Constitution, which reflects inner-party democracy.
    3. Test of Majority in the legislative and organizational wings.

    Limitations of the Anti-Defection Law

    • Dictatorship of Party: The law has been criticized for undermining democratic principles by restricting legislators’ freedom of speech and making them more accountable to party leaders than their constituents.
    • Limited Political Choice: The law discriminates against independent members, disqualifying them immediately if they join a political party, while nominated members have a six-month grace period.
    • Partial Law: The law needs a more precise timeline for resolving defection cases. It allows large-group defections, fostering opportunistic mergers and “horse-trading”, destabilizing the political system.
    • Promotes Defection: It fails to address root causes like intra-party democracy, corruption, and electoral malpractices.

    Recommendations on Reforming the Law

    • Dinesh Goswami Committee (1990):
      • Disqualification should be limited to cases of voluntarily giving up membership or voting/abstention contrary to the party direction only in specific motions.
      • Decision on disqualification should be made by the President or Governor based on the advice of the Election Commission.
    • Law Commission of India (2015):
      • Proposed shifting the power to decide disqualification petitions from the Presiding Officer to the President or Governor based on the advice of the Election Commission.
    • Supreme Court in K. M. Singh v. Speaker of Manipur (2020):
      • Recommended transferring the Speaker’s decision-making authority over disqualification petitions to an independent tribunal presided over by judges.
    • Committee Led by Rahul Narwekar:
      • Announced by Lok Sabha Speaker Om Birla to review the nation’s anti-defection law.

    PYQ:

    [2022] With reference to anti-defection law in India, consider the following statements:

    1. The law specifies that a nominated legislator cannot join any political party within six months of being appointed to the House.
    2. The law does not provide any time-frame within which the presiding officer has to decide a defection case.

    Which of the statements given above is/are correct?

    (a) 1 only

    (b) 2 only

    (c) Both 1 and 2

    (d) Neither 1 nor 2

    [2013] The role of individual MPs (Members of Parliament) has diminished over the years and as a result healthy constructive debates on policy issues are not usually witnessed. How far can this be attributed to the anti-defection law, which was legislated but with a different intention?

  • [pib] PM marks 5 years of abrogation of Articles 370 and 35(A)

    Why in the News?

    The Prime Minister recalled the Parliament’s 5-year-old decision to abrogate Articles 370 and 35(A), calling it a watershed moment.

    About Articles 370 and 35(A) of the Indian Constitution

    [1] Article 370: 

    Description
    Provision Grants special autonomous status to the state of Jammu and Kashmir.
    Nature Initially intended as a temporary provision, subject to eventual change or abrogation.
    Powers of State Allowed J&K to have its own Constitution and autonomy over internal matters except defense, foreign affairs, finance, and communications.
    Presidential Order President of India could extend or modify the application of Indian laws to J&K with the concurrence of the state government.
    Autonomy Details Provides a degree of autonomy to the state and permits the state to give some special privileges to its “permanent residents”.
    Emergency Provisions Emergency provisions are not applicable to the state on the grounds of “internal disturbance” without the concurrence of the State.
    State Boundaries Name and boundaries of the State cannot be altered without the consent of its legislature.
    Separate Institutions State has its own constitution, a separate flag, and a separate penal code (Ranbir Penal Code).
    Assembly Duration Duration of the state’s Assembly is 6 years, unlike five in the rest of India.
    Parliamentary Jurisdiction
    • Indian Parliament can pass laws regarding J&K in the matters of defense, external affairs, and communication only.
    • Any other law formed by Union will only be applicable in J&K by presidential order if it concurs with the state assembly.
    Abolishment Condition President may, by public notification, declare that this Article shall cease to be operative but only on the recommendation of the Constituent Assembly of the State.
    Abolishment In August 5, 2019, through a Presidential Order and a resolution passed by the Indian Parliament.
    Impact of Abrogation
    • J&K’s special status was revoked.
    • It was reorganized into two Union Territories: Jammu and Kashmir, and Ladakh.

     

    [2] Article 35A:  

    Description
    Provision Empowers the J&K legislature to define permanent residents of the state and provide them with special rights and privileges.
    Insertion Added to the Constitution through a Presidential Order in 1954.
    Permanent Residents Defined by the state as those who were state subjects on May 14, 1954, or have been residents for 10 years, and lawfully acquired immovable property.
    Special Rights Permanent residents were given exclusive rights to employment under the state government, acquisition of immovable property in the state, and scholarships.
    Constitutionality Debate Debated on the grounds that it was not added via an amendment procedure.
    Criticism Criticized for being discriminatory and creating a sense of separation from the rest of India.
    Revocation Along with Article 370, Article 35A was effectively nullified on August 5, 2019.

     

    PYQ:

    [2016] To what extent is Article 370 of the Indian Constitution, bearing marginal note “Temporary provision with respect to the State of Jammu and Kashmir”, temporary? Discuss The future prospects of this provision in the context of Indian polity.

  • Why did courts revisit bar on sub-quotas?     

    Why in the News?

    A seven-judge Bench of the Supreme Court has ruled that States can subdivide Scheduled Castes (SC) into groups to allocate sub-quotas within the Dalit reservation.

    Will the Weaker Among Dalits Get Representation from Further Sub-Classification?

    • The Supreme Court’s ruling allows states to create sub-classifications within the SC category, which is expected to enable states to earmark sub-quotas for the most marginalized sections of Dalits.
    • This decision aims to ensure better representation for weaker groups within the SC community who have historically been underrepresented and have not benefitted adequately from existing reservations.
    • The ruling emphasizes that treating SC communities as a homogeneous group undermines the objective of reservations, as there are significant differences in advancement and discrimination among various SC communities.

    Why Did the Supreme Court Overrule a Five-Judge Decision of 2004?

    • The 2004 judgment in E.V. Chinnaiah vs. State of Andhra Pradesh held that SCs constitute a single homogeneous class and that any sub-classification was unconstitutional, as it violated Article 341, which empowers the President to notify the list of SCs.
    • The recent seven-judge Bench, led by Chief Justice D.Y. Chandrachud, found this ruling to be incorrect, stating that SC communities are not homogeneous and that there are inter se differences among them.
    • The majority opinion argued that the act of notifying a list of SCs does not create a uniform class, and sub-classification is permissible based on “intelligible differentia” and should have a rational nexus to the purpose of doing it.

    What are the views on Creamy layer exclusion?

    • The concept of the creamy layer, which excludes more advanced members of a community from benefiting from affirmative action, is currently applicable only to Other Backward Classes (OBCs) and has not been extended to Dalit communities.
    • Justice B.R. Gavai, in a separate opinion, emphasized the need to identify and exclude the more advanced among SCs from affirmative action benefits, arguing that treating all members equally disregards the principle of equality.
    • The opinions regarding creamy layer exclusion do not constitute a directive for the government to implement this concept for SCs, as the issue was not directly addressed in the current case.

    Do the Judges’ Opinions on this Constitute a Direction to the Government?

    • The judges’ opinions on sub-classification and creamy layer exclusion provide a legal framework for states to follow but do not serve as a direct mandate for the government to implement changes.
    • The ruling establishes that states have the authority to sub-classify SCs for the purpose of extending reservation benefits, but the specific implementation details and parameters for creamy layer exclusion remain open for further consideration and do not compel immediate action from the government.

    Way forward: 

    • Implementation Framework for Sub-Classification: The government should establish a comprehensive framework that outlines the criteria and process for sub-classification of SCs.
    • Addressing Creamy Layer Exclusion: The government should consider developing specific criteria for identifying the “creamy layer” within SCs, similar to the criteria used for OBCs.

  • Elephant in Civil Servant’s room           

    Why in the news?

    The government’s recent decision to lift the ban on government employees participating in RSS activities threatens to undermine the remnants of a free and fair bureaucracy.

    Whether or not civil servants are banned from joining RSS 

    • Lifting the Ban: The Central government has lifted a 58-year ban on government servants joining the Rashtriya Swayamsevak Sangh (RSS). This ban was originally imposed in 1966 due to concerns about the organization’s political activities.
    • Government Justification: The government stated that the activities of the RSS are no longer deemed incompatible with civil service conduct rules, suggesting that the organization has been wrongly categorized as a banned entity.
    • Judicial Commentary: The Madhya Pradesh High Court remarked that it took nearly five decades for the government to recognize its mistake in banning civil servants from joining the RSS, indicating a shift in perception regarding the organization.
    • Political Reactions: The decision has sparked controversy, with opposition parties criticizing it as a threat to India’s secular fabric and accusing the government of politicizing the civil service. Critics argue that the RSS’s ideology conflicts with the principles of a secular state.
    • Support from RSS: The RSS welcomed the decision, asserting that it strengthens India’s democratic system and has historically contributed to national unity and social service.

    The idea of Constitutional Democracy

    • Constitutional democracy is a system of government that combines the principles of democracy with a constitution that limits the powers of the state and protects the rights of citizens.
    • The people are the ultimate source of power, and the government derives its authority from their consent. The constitution places restrictions on the government’s actions and establishes the structure of the government.
    • There is a separation of powers between the legislature, executive, and judiciary, with each acting as a check on the others. The rule of law applies equally to all citizens and the government itself.
    • Minority rights are protected, and the will of the majority is balanced against the rights of individuals and minority groups. Constitutional democracy guarantees some rights to everyone, irrespective of their status as a minority or majority.
    • The origins of constitutional democracy can be traced back to Enlightenment ideas of natural rights, social contract theory, and the separation of powers. The United States Constitution, adopted in 1787, was a pioneering example of a written constitution establishing a federal system of government with a separation of powers

    RSS Ideology vs Constitutional Democracy

    • Conflict of Ideologies: The lifting of the ban raises questions about the relationship between the RSS’s ideology and the constitutional framework of India. The RSS promotes a vision of a Hindu nation, which may conflict with the secular and pluralistic ideals enshrined in the Constitution.
    • Constitutional Morality: The Constitution aims to create a society that respects diverse religions and cultures, contrasting with the RSS’s focus on a singular religious identity. This juxtaposition presents challenges to the commitment of civil servants to uphold constitutional values.
    • Historical background of the Constitution: The Constitution was designed to restructure Indian society post-independence, ensuring inclusivity and rejecting the idea of a state aligned with a single religious community. The RSS’s ideology, which criticizes the post-1947 restructuring, poses a fundamental challenge to this vision.
    • Democratic Challenges: The existence of non-democratic and exclusionary ideas within a democratic framework complicates governance. The rise of Hindutva politics, which emphasizes majoritarianism and exclusion, threatens the principles of constitutional democracy.
    • Need for Reinforcement: To counter the influence of ideologies that contradict constitutional morality, there is a pressing need to reinvigorate the commitment to constitutional democracy among civil servants and the broader public.

    Conclusion: To uphold constitutional democracy, it is crucial to reinforce the commitment to secularism, inclusivity, and the rule of law among civil servants and the broader public amidst ideological challenges.

    Mains PYQ: 

    Q To enhance the quality of democracy in India the Election Commission of India has proposed electoral reforms in 2016. What are the suggested reforms and how far are they significant to make democracy successful? (2017)