Indian Polity

www.iasscore.in

Contemporary Issues

Contemporary Analysis

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POLITY

1) Preamble

a) Preamble Controversy

(Deleting Secular & Socialist in Preamble)

1. Introduction

a. Demand by politicians

i. Shiv sena (ally of BJP) first mooted the idea of deleting the two saying that India is a Hindunation.

ii. Ravishankar Prasad joined him by saying that there is no harm in discussing them.

iii. Later Venkiah Naidu & Amit Shah clarified that there is no proposal to do so.

b. Republic day advertisement

i. In this advertisement, original Preamble of Constitution was shown which didnt had the twowords.

2. Arguments against

a. Its pointless/well-settled 42nd AA, only made explicit what is implicit; its part of basic structure(thus beyond debate).

b. Content of Socialism & Secularism can be debated, but idea perse cant.

c. Wrong focus government should debate bills and other important socio-economic issues.

2) Citizenship

a) Merger of PIO and OCI card

1. The ordinance to amend the Citizenship Act was promulgated in Dec 2014

2. It put a Person of Indian Origin (PIO) on a par with an Overseas Citizen of India (OCI)

3. It was done so as to keep the earlier promise given by Prime Minister Narendra Modi.

b) NRI allowed to vote via e-postal ballots January 2015

1. Timeline

a. Two separate petitions were filed by NRIs in SC to give them right to vote. SC ordered the ECI tolook into the matter.

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b. In October 2014, ECI came out with the report prepared by the Election Commission on options forvoters overseas.

c. On January 12, 2015 the government informed the Supreme Court on Monday that it has agreed tothe ECIs recommendations to allow NRI to vote via e-postal ballots or proxy voting.

2. Significance

a. It removes the restriction posed by Section 20(A) of the Representation of the People (Amendment)Act of 2010, requiring overseas electors to be physically present in their constituencies to cast theirvotes.

b. They can play a decisive role in election outcomes if they note There are 10 million Indian citizensstaying abroad, and with 543 Lok Sabha constituencies, this means an average of 18,000 votes perconstituency may get polled from abroad.

3. Way forward

a. Government need not wait for a statutory amendment, but can straight away issue a notificationimplementing the change in the voting law.

b. But concurrence has to be got from the Ministries of External Affairs, Home, Overseas Indian Affairs,and finance before implementing the decision. So even if we go for a non-statutory amendment, it willtake some time.

4. Earlier it was opposed on the ground that since NRIs lacked sound knowledge about domestic conditions,they would be irresponsible in their electoral choices. But this argument is fast being disproved byempirical evidence. With the rapid increase in cross-border migrations, the concept of nationhood andpolitical membership is increasingly being decoupled from territorial locations. Indias move towardsenabling voting from overseas is an instance of a larger global trend towards increased citizen participation.

3) Freedom of expression recent cases of its violation

I) Section 66A of it Act of 2000

1) In news

In March 2015, SC stuck down section 66A of IndianInformationTechnologyAct, 2000. So in thatcontext.

2) Summary

1. About Section 66A

a. In 2008, the UPA government amended IT Act, 2000 by inserting section 66A.

b. Section 66A provides for a maximum 3-year jail sentence and a fine for posting offensive commentson social media.

c. The following are excluded from offensive comments expressing political dissent, contrarian viewsand decent humor.

d. Objective behind the 2008 amendment was to prevent the misuse of information technology, particularlythrough social media.

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2. Over the years it has become very controversial due to the alleged arbitrary used by the government (toprevent its misuses. In January 2013, Central government issued guidelines which mandated that onlysenior police personnel could order arrests under this section. However, its misuses continued.

a. E.g. of Infamous cases

i. In Sept 2012, Aseem Trivedi was arrested for mocking Parliament and the Constitution to depicttheir ineffectiveness.

ii. In Nov 2012, two girls were arrested in Thane for a Facebook post in which they questioned theshutdown of Mumbai for the funeral of Shiv Sena chief Bal Thackeray.

iii. Recently in 2015, a student was arrested for allegedly posting an objectionable remark againstAzam Khan of Samajwadi Party.

3. Thus batch of petitions were filed in the SC to declare it unconstitutional and stuck it down.

4. Finally, in March 2015, SCin theShreya Singhal vs Union of Indiacase, said the following things withrespect to 3 sections of IT Act, 2000.

Act/Section SCs verdict

Section 66A of IT Act, 2000 It is unconstitutional valid and thus struck it down.

Section 69A of IT Act, 2000 It is constitutionally valid and thus didnt struck it down.

Section 79 of IT Act, 2000 It is constitutionally valid and thus didnt struck it down.

Section 118(d) of the Kerala Police Act It is unconstitutional valid and thus struck it down.

3) Detail of SCs verdict in Shreya Singhal vs Union of India

a) Section 66A

SC stuck it down by calling it unconstitutional on following grounds

1. Firstly, it said about the requirement of Freedom of expression.

a. Freedom of expression is at the foundation of democracy, and without free flow of information therewill be no informed citizenry and thus no meaningful governance.

b. But section 66A Prevents the flow of information; or in its literal words These sections have achilling effect on the freedom of speech.

2. Forms of Freedom of expression

a. Then it talked about the content of freedom of expression. According it there are three forms (1)discussion, (2) advocacy and (3) incitement. Mere discussion or even advocacy of a particular cause,how so ever unpopular, is at the heart of Article 19(1)(a). It is only when such discussion or advocacyreaches the level of incitement (i.e., causing public disorder, etc.) that Article 19(2) kicks in and thenonly a law may be made for curtailing the same.

b. But section 66A didnt made any distinction between advocacy, discussion on one hand and incitementon the other. The information disseminated over the Internet need not be information which incitesanybody at all. Written words may be sent that may be purely in the realm of discussion oradvocacy of a particular point of view.

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3. Vagueness

a. Supreme Court called it unconstitutionally vague. Most of the termsusedin the section like offensive,annoyance, etc., have not been specifically defined under the Act and are thus open to variedinterpretations.

b. Its relative, not absolute. What may be offensive to one may not be offensive to another. What maycause annoyance or inconvenience to one may not cause annoyance or inconvenience to another.

c. It is neither clear to ordinary people nor to administrators of law that what conduct is prohibited andwhat is permitted.

d. Now the government said that mere vagueness of a law and its possibility of misuse cannot lead todeclaring it invalid. But SC replied that the Doctrine of vagueness is held to be a facet of constitutionallaw.

4. With respect to reasonable restrictions

a. Messages that that can be termed offensive or annoying under Section 66A have no relate to publicorder, decency or morality, defamation or incitement and thus cant be seen as a reasonable restrictionunder A-19(2).

5. Extensive powers to government

a. The provision gives extensive power to the police like barging into anyones house, arresting, homesearched and the blocking website.

6. The bill was not debated while it was passed:

a. The amending act which inserting the new Section 66A in the original Act was passed, along withthree other bills, in less than half an hour in Lok Sabha on December 22, 2008. The next day, RajyaSabha too passed the bill without a discussion.

7. Governments assurance

a. To the government assurance that it will use other methods to stop misuses of section 66A (so pleaseretain it), SC said that the present governments promises will not bind its successor. Or as famouslysaid by it governments may come and governments may go, but Section 66A goes forever.

b) With respect to Section 69A

1. What the section says

a. Deals with the procedure and safeguards for blocking certain websites

b. It accords the government the authority to block the transmission of information, including theblocking of websites, when it is necessary or expedient to do so, for among other reasons, the interestof sovereignty and integrity of India, public order or for preventing incitement to the commission ofany cognizable offence.

2. What SC said

a. It is constitutionally valid and thus didnt strike it down.

b. Why The court found that the provision contains sufficient safeguards against governmental abuse.

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i. First and foremost, blocking can only be resorted to where the Central government is satisfiedthat it is necessary to do so.

ii. Secondly, such necessity is relatable only to some of the subjects set out in Article 19(2).

iii. Thirdly, reasons have to be recorded in writing in such blocking order so that they may be assailedin a writ petition under Article 226 of the Constitution.

iv. The Rules further provide for a hearing before the committee set up which committee thenlooks into whether or not it is necessary to block such information. It is only when the committeefinds that there is such a necessity than a blocking order is made. It is also clear from anexamination of Rule 8 that it is not merely the intermediary who may be heard. If the person,that is, the originator is identified, he is also to be heard before a blocking order is passed. Aboveall, it is only after these procedural safeguards are met that blocking orders are made and in casethere is a certified copy of a court order, only then can such blocking order also be made. It isonly an intermediary who finally fails to comply with the directions issued who is punishableunder sub-section (3) of Section 69A.

3. View of Hindu opinion

a. That said, the judgment has upheld the constitutionality of Section 69A that defines the rules andprocedure for the government to block websites based on a set of legislatively provided grounds.While the blocking rules are comprehensive, the lack of transparency in the execution of blocking(Rule 16 states that strict confidentiality shall be maintained regarding all the requests and complaintsreceived and actions taken thereof ) is a cause of concern. Also, government officers have usedSection 69A as a sledge-hammer to block entire websites for offending content, instead of the specificURLs.

b. In short this author said that the SC is wrong in upholding it.

c) Section 79

1. What the section says (Intermediary liability)

a. It grants protection (under certain limited circumstances) to intermediaries (e.g., websites such asGoogle, Facebook, YouTube) for content published by individuals who use their platforms.

b. I.e., intermediaries would not be liable for illegal content on their websites unless they failed tocomply with a court or government order asking for takedowns of such content.

2. What SC said

a. It is constitutionally valid and thus didnt strike it down.

b. Why The court found that the provision contains sufficient safeguards against governmental abuse.

4) Way forward with respect to parties

1. Reaction by parties

a. The Left parties and the Aam Aadmi Party welcomed the Supreme Courts verdict.

b. On the other hand JD (U), SP, Shiv Sena disagreed with the SC arguing that it would weaken thehands of law enforcement agencies.

c. Finally the two largest parties in the country, the BJP and the Congress gave calibrated responses: wewelcome the courts ruling, but need to study the verdict before giving a structured response.

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2. What next What can the government do?

a. Section 66A no longer exists in the IT Act.

b. What about pending cases under Sec 66A?

i. Cases where only Section 66A was invoked will be deemed nullified and charges will be droppedonce applications are moved. But cases in which charges under IPC, other laws were also invokedwill continue.

c. What can the government do next?

i. It can either accept the verdict or amend the Act to insert a new provision, similar to Section 66Abut bereft of deficiencies cited by the court.

d. Can anything be posted now on social media?

i. No. While contentious social media posts will not attract Section 66A any further, penal provisionsrelating to defamation, obscenity, mischief, public disorder, etc. remain under other provisions andlaws.

5) Conclusion

1. SC has reaffirmed its role as the guardian of individual liberty against arbitrary and whimsical state action,and as protector particularly of that most fundamental of rights of free speech and expression.

2. Section 69A

a. Activists are now also demanding to the repeal section 69A of IT Act. (Although SC didnt acceptedthe demand to stuck it down)

3. With respect to other attempts at gagging freedom of expression

a. This judgment,which goes beyond striking down a shamelessly repressive law to developing powerful,even beautiful, free speech jurisprudence that can beusedto correct other efforts at stifling our speech.

4. In the wake ofinternationalinfamy over the governments blocking of Indias Daughter, this judgment isa monumental reminder thatwe are a democracy with an independent judiciary and a formidableConstitution.

5. Hopefully, the government will take its cue from the judiciaryand move to rebuild its content-blockingregime into the sort of transparent and accountable system thata democracy ought to have.

6. The judgment strengthens democratic freedoms as a whole, especially since the Internet today in India hasbecome a virtual public sphere and a lively arena of discussion and debate.

II) Charlie Hedbo Terror Attack

1. About Charlie Hedbo

a. In French it means Weekly Charlie

b. It is a Frenchsatiricalweekly newspaper, featuring cartoons, reports, polemics, and jokes.

c. The magazine is published every Wednesday, with special editions issued on an unscheduled basis.

d. The publication describes itself as stronglyanti-racistandleft-wing, publishing articles on theextremeright,Catholicism,Islam,Judaism,politics,culture etc.

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2. Prophets cartoon

a. The papers controversial 3 November 2011 issue, renamedCharia Hebdo(a reference toSharialaw)and guest-edited byMuhammad, depicted Muhammad saying: 100 lashes of the whip if you dontdie laughing.

b. In September 2012, the newspaper published a series of satirical cartoons of Muhammad, some ofwhich feature nude caricatures of him.

3. Attacks on it by Muslims

a. It experienced two terrorist attacks, in 2011 and in 2015, which were presumed to be in response toa number of controversialMuhammadcartoons published by the magazine.

b. 2015

i. In the latter of these attacks, On 7 January 2015, threeIslamistgunmenopened fire at the Parisoffice ofCharlie Hebdo, killing twelve people, including several contributors, and the editor, Charb.

ii. During the attack the gunmen were heard to shoutthe Prophet is avenged,

iii. Of the 3 attackers, 2 were French muslims and the nationality of 3rd is not known.

iv. On 9th January they were killed.

v. Je suis Charlie

1. After the attacks, the phraseJe suis Charlie, French for I am Charlie, was adopted bysupporters of free speech and freedom of expression who were reacting to the shootings.

2. Some journalists embraced the expression as a rallying cry for the freedom of self-expression.

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III) SHIRIN DALVI

1. Who is she?

a. She is the editor of Mumbai edition of Lucknow based Urdu newspaper Awadh-nama.

2. What she did?

a. Published a cover ofCharlie Hebdo, a French magazine that was attacked by Islamist fundamentalistswho were offended by its caricatures of the Prophet Muhammad. Shirin Dalvi reproduced its coverdepicting the caricature of a bearded man lamenting that he was loved by idiots.

3. Action taken against her

a. As soon as this issue ofAwadhnamahit the stands, some sections of the Muslim community expressedoutrage over the caricature, saying that depictions of the Prophet are never published. Six first informationreports (FIRs) were filed against her in various parts of Maharashtra. She was arrested on February 4by the Thane police but was granted bail.

4. Criticism of her harassment

a. Firstly half the time, many of these people who feel offended havent even read what it is about.

b. Kills point of debate; instead of negotiations brute force is used.

c. Bing harassed because she is a women:

i. Interestingly, it is not the maulanas or religious heads that are baying for Shirin Dalvis blood. Shesays, she has been let down by her own tribe. Zubair Azmi, who heads the Urdu Markaz, anorganization that promotes Urdu literature, was the first complainant.

ii. Shirin Dalvis repeated argument is that people such as Azmi and Ahmed are doing this out ofpersonal jealousy and to prevent her from succeeding as a woman.

iii. Sameera Khan is of the opinion that these so-called Muslim intellectual men are extremelyirresponsible. They tend to influence the community, and this leads to even bigger and morecomplex problems. Sameera Khan, who has taught Muslim women journalism, says it is anextremely hard profession for them to be in. Any growth is completely squashed. I understandwhat Shirin is saying.

iv. Shirin Dalvi now became editor ofAwadhnama. To be a woman editor in the Urdu language pressis no small feat. Obviously, she had her detractors and they finally had their say.

d. Against freedom of expression.

e. If you dont like it then dont read.

f. What Shirin Dalvi did was perhaps a bad editorial decision. She seemed to have realized that andclarified the same in her newspaper almost immediately. What is important to understand is that herintention was not malicious or devious. It was her way of explaining to the readers what had happenedin theCharlie Hebdocase.

g. While the controversy over a television comedy show hogs prime time on national television, ShirinDalvis case has been relegated to the background. Observers say this is a sad reflection of the media,womens and human rights groups, and liberals who have not stuck their necks out for a case that

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requires immediate and aggressive help. It needs to be understood by the larger population that thisis not just about Shirin Dalvi, says a close associate of her who requests anonymity. It is about afundamental right being taken away.

IV) Madhorubhagan

1. A novel by Tamil writer Perumal Murugan.

2. In January 2014, BJP, RSS and other Hindu outfits alleged that novel,Madhorubhagan,has portrayed theKailasanathar temple in Tiruchengode and women devotees in bad light and thus demanded its ban andarrest of the author.

3. Story of novel Madhorubagan, Tamil equivalent of Ardhanareeswarar, the presiding deity of Tiruchengodutemple, revolves around childless couple Kali and his wife, Ponna. Their predicament is discussed in thebackdrop of the traditional free, consensual sex rituals held once in a year during the car festival ofthe temple in the past. Kali resists attempts to make his wife to participate in the ritual, but in the endhe is shattered when he finds her missing from home.

4. Subsequently the author announced that he has given up on writing.

5. Why backed out

a. There are legal remedies but they come at a high cost. It wears down a scholar. It wipes out thefinancial stability of a publishing house. It stigmatizes the author.

b. These groups are aware that not every creative person is an activist to fight against their vigilantism.A writer writes, a painter paints, a sculptor makes sculpture a filmmaker makes film and a musiciancreates music. That is the calling, the vocation, the expertise. Creators may not have the wherewithalto wage a legal battle nor are they interested in becoming martyrs. It is a collective responsibility ofsociety to nurture its creative minds.

6. States failure to protect them and even acts along with these groups

7. Social censorship

a. Two types of censorship social and political.

b. Both of these come together and overlap as if in conspiracy.

c. What happened to Perumal Murugan is clearly social censorship in which the state was an accomplicein the widest sense of the term. Instead of an outright rejection of the demands from the fringe toalter the novel that was published four years ago, the state gave legitimacy to the motley gatheringof religious Right and caste groupings. From Godse to the protesters against Perumal Murugan, thereis always an official denial from the establishment of the religious Right about the affiliations of theperpetrators. A string of coincidences is not a coincidence.

V) KILLING OF GOVIND PANSARE

1. He was killed in min February.

2. Why killed not sure as his killers havent been caught.

3. Who was he

a. A communist (CPI leader), a rationalist.

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b. He fought against superstition, communalism, exploitation

i. In 1984, Pansare wrote a book calledShivaji Kon Hota(Who was Shivaji). He showed Shivaji asa secular leader who held all religions in esteem. The image of Shivaji created by the Hindu Rightis of a anti-Muslim and a Hindu king. According to his research many of his military andadministrative staff were Muslims).

ii. Some years ago, ayagnafor world peace was to be performed in Kolhapur by one of theShankaracharyas. It would have meant the usual burning of ghee and grains. Pansare protestedsuccessfully against it, once again upsetting the orthodox element.

iii. Narendra Dabholkar and Pansare were friends and associates in the fight against blind faith,superstition and other beliefs that they saw as irrational and exploitative. After Dabholkar waskilled, Pansare had stepped up the agitation demanding that the government pass the Anti-Superstition Bill.

iv. He revealed what he believed was the truth about the killing of Anti-Terrorism Squad chiefHemant Karkare.

1. In December 2014, Pansare organised a function at a public hall in Kolhapur to discuss thebookWho killed Karkare. Written by the retired police officer S.M. Mushrif, the book speaksof the possibility of Karkare being killed by Indian agencies because he arrested Hindunationalists in connection with the 2008 Malegaon blasts. There were attempts to stop theevent, but Pansare went ahead with it.

v. In January 2015 he opposed glorification of Godse, broke myths of Godse.

c. All these crusades earned him enemies, and over the years he had received threats in various forms.

3)(b) Directive Principle UCC (Uniform Civil Code)

a)(i) NDA government in power

1. It was mentioned in BJPs manifesto for 2014 general election

2. And from time to time there have been demands of having a UCC.

a)(ii) Debate over UCC

1) Opposition

1. Opposition by minorities esp. Muslims

a. Islamic laws are sacrosanct; cant be changed

i. The Muslim clergy had always succeeded in resisting changes under the pretext of that sacrosanct.

ii. They argue that Islamic law is not amendable to re-interpretation.

b. Will destroy their identity:

i. In general

1. They argue that imposition of UCC would destroy the cultural identity of minorities.

2. They argue that their personal laws are linked with religious identity in India and thereforecould not be easily abolished.

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ii. Attempt by Hindu communalist organizations

1. They perceived it as an attempt by Hindu communal organizations to impose their customson them.

2. I.e., there is threat of a majoritarian homogenizing principle.

c. Reforms should be not be brought out by outsiders. It should be brought from within.

2. Vested interests

a. Male chauvanists

i. It is opposed by male chauvanists who believe that they would loose dominance over womensas womens will be treated equally.

b. Politicians

i. Whenever any discussion is raised then politicians raise a bogey of religion to foil attempts toamend them.

ii. In short, they appease the minorities as a part of their vote bank politics.

2) In favour of UCC

1. Counter argument to points given by Muslim

a. Islamic laws are not static M.J. Akbar (journalist, former editorial director India today magazine)wrote:

i. It is a myth that Islamic law is not amendable to re-interpretation. Islam has always been adynamic faith, not a static one and principles have been placed in context whenever needed.

ii. If the Shariat is to be strictly observed, a thief should have his hands cut off. Would todaysfundamentalist Muslims in India agree to this being practiced?

b. How will they lose their identity:

i. How Muslims will lose their identity in the country, having a Uniform Civil Code? How can acommon civil code ever affect faith? What does law have to do with faith?

c. No communal agenda of any party

i. Apart from Hindu organizations, academicians and even judiciary support the uniform civil codefor the country.

ii. Judiciary has on various occasions directed the executive to implement uniform civil code. (likein Sarla Mudgal case, Mary Roy Case vs. State of Kerala, Jorden Deinddeh vs. S.S. Chopra,Pannalal Bansilal Case, etc).

d. Reforms can be brought by outsiders

i. Grounds that reforms should be within and not by aliens doesnt means that the reforms shouldntcome. State can interfere if it leads to social justice.

e. Infact it would lead to various advantages as mentioned below.

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2. Womens status

a. At least half of all Muslims are badly served by the Muslim Personal Law.

b. Triple Talaq, no rights to maintenance and subordinate rights of inheritance are all examples of howmy Muslim sisters labor under unfair regulations.

c. Goas case

i. Irrespective of caste, creed or religion, Goas family laws provide for compulsory registration ofmarriage to avoid multi-marriages, stringent provisions for divorce, equal sharing of propertyamong the husband and the wife and equally democratic sharing among the sons and the daughters.

ii. In a conference held in 1997, Justice M B Shah, Chief Justice of Mumbai High Court, who alsoheads a bench in Goa, observes that injustices/atrocities on women are less heard in Goa comparedto other states.

3. National identity

a. For the founding fathers of our Constitution everything subsumed to the fraternity, unity and integrityof the nation.

b. In Shah Bano case SC observed that, A common civil code will help the cause of national integrationby removing disparate loyalties to law which have conflicting ideologies.

c. It is an important part of the effort to construct an Indian national identity, over the separate identitiesof caste, religion and ethnicity.

4. Equality (Creates equality among religions)

a. Our Constitution treats everyone equal before law.

b. TheHindu nationalistscontend that it makes little sense to allow Muslims, for example, to marrymore than once, but prosecute Hindus or Christians for doing the same.

c. Why are the womens of two different religion are treated differently in matters of divorce, inheritanceetc.

5. Many people take advantage of this

a. Many Hindu people convert to Islam to marry twice.

i. Film actor Dharmender converted to islam to marry Hema Mailini.

ii. Chander Mohan (the former Deputy Chief Minister ofHaryana) converted to Islam and adoptedthe name Chand Mohammad.

b. The conversion was merely to facilitate a legal second marriage. Some Muslim clerics protested themisuse of the tenets of Islam for a marriage of convenience.

c. SC verdict In Sarla Mudgal case, 1995 SC said that nonMuslims cant convert to Islam merely forbigamous relationship.(this decision was reinforced in Lily Thomas case, 2006)

6. In other places

a. Other Muslim countries have it

i. In advanced Muslim regimes around the world like in Turkey and in Egypt, the personal laws arebeing amended in tune with modern times

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ii. So if they can, then what is secular India thinking about ?

b. Goas example

i. In Goa we have a UCC for all communities. Goas personal laws are uniform in matters ofmarriage, divorce and succession.

ii. It made mandatory registration of all marriages and protected Muslim women from the dread ofverbal talaq.

iii. Here UCC is working fine without hurting minorities sentiments.

7. Its with respect to implementing a directive principle

a. Having a Uniform civil code is a part of directive principles. I.e., the constitution directs the state thatit is a desired a goal and state should strive to achieve it.

8. If there is common criminal laws then why not common civil law

a. Furthermore, when criminal laws and some aspects of civil laws were common to the country as awhole then why the variation of personal laws?

9. Leads to litigation

a. Eventually, because of discrepancies in the personal law, numerous cases came before the courts.

10. Hindu communalists wont be able to questions Muslims allegiance to republic.

a. Muslims reluctance against UCC is a convenient stick for Hindu communalists to beat minorities esp.Muslims with. They suspect their commitment to Indian republic.

b. So passing of UCC will rescue Muslims from malicious accusations of hindering national integration.

3) Concluding remark

1. Implement it

a. (important line) Resistance and opposition will always be there. But thats shouldnt stop the state fromdoing social good.

b. So state should implement this directive principle.

2. But dont impose them; build consensus.

a. For this we need higher degree of national consensus. And it can happen by educating and convincingthe people. It should not be perceived as being imposed by Hindus on them.

3. Include all good elements from each

a. In future, while implementing the Uniform Civil Code that has to be done.

b. A Uniform Civil Code should be a Code in which each provision has been incorporated not becauseit is to be found in the Shariat or Manu or Christian or Parsi law but because that provision guaranteesthe best rights to all citizens; it is the most humane and just provision we can think of.

b) SC verdict on Polygamy

1. Inahistoric decision in February, 2015 the Supreme Court denied a Muslim man the right to havemorethanone wife and upheld his termination from employment for committing bigamy.

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2. Arguments in favor

a. The court observed that polygamy was not integral to Islam and the practice was not mandated byreligion simply because it was permitted.

b. In a catena of cases, the SC has held that the freedom of religion Under Article 25 protects only thosepractices that constitute an essential and integral part of religion. Therefore, Muslim personal lawcan claim the protection of Article 25 only if it is established that marriage, inheritance and the otherareas itcoversare essential and integral parts of Islam.

c. The bench was of the view that a Muslim who wants to havemorethan one wife is engaged in neitherprofessing & practicing nor promoting and propagating his religion.

d. Neither polygamy nor unilateral divorce can be fully identified with MuslimcultureasmostIndianMuslims are monogamists and have not exercised their right to divorce.

e. Moreover,IndianMuslim law on these subjects does not reflect the moral mores of the divine verses.The Quran permits polygamy subject to the impossible condition that the husband is able to dealjustly with his wives. But theIndianlaw ignores this precondition. Considered in the context of theglobal history of polygamy, the precondition ismorenoteworthy than the permission.

3. Thus, the SC rightly upheldservicerules that mandated that an employee can have only one wife.

4. ThislatestSC decision is in line with the reform of Muslim personal law that it initiated three decadesago in the Shah Bano case.

4) Union

a) Minimum government maximum governance

Steps taken by NDA government in this direction

1. With respect to organizations

a. Scrapping of GoM and EGoMs

b. Abolished 4 standing cabinet committee

c. Number of COM reduced.

2. Reducing laws, scrapping obsolete laws

a. Introduction India is one of the most over-regulated country in the world, i.e., unnecessary laws andregulations.

b. Consequence

i. Huge economic costs

ii. Fertile ground for corruption

iii. Red Tapism

iv. Inspector raj

c. With respect to 2014 In June 2014, PM in his 1st meeting with all government secretaries called foridentification of 10 laws from each ministry that are burdensome and should be repealed.

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d. Way forward

i. Case study of UK

1. They have a dedicated agency to do deregulation on sustained basis; to implement repeal oflaws.

2. Impact assessment carried out by each department to understand the costbenefit analysis

of a possible law.

3. Incorporated Sunset clause in a law mandates automatic repeal of a law after a specified periodof time

4. Incorporated Review clause in a law mandates periodic review, but doesnt result in automaticrepeal.

ii. So, India should do the same.

3. Weed out unwanted files/documents, furniture, appliances, instruments, etc.

4. Egovernance this also comes under it as by this less people can cover greater ground

5. In Nov 2014, government decided that only schemes and projects worth over Rs 1,000 crore

require the approval of the Union Cabinet or the Cabinet Committee concerned. The decisionis expected to significantly cut down the number of proposals that require Cabinet approval

and lead to quicker decision-making at the ministry level. Earlier, projects worth Rs 300 croreand above required Cabinet clearance.

b) Are we moving towards a prime ministerial form of government with coming of PM Modi

1. Yes

a. We have move towards the prime ministerial era government.

2. How?

a. Popularity among the masses

i. He is very popular among the masses;

ii. People votes for him.

b. Clear majority

i. End of coalition era has played an important role as PM is now free from any compulsions.

c. PMO has become stronger vis--vis Cabinet Secretariat.

d. Concluding remark

i. Its not called as NDA government or BJP government but Modi led government or Modi sarkar.

3. Is it right? - debate

a. No

i. As ours is a parliamentary form of democracy which talks of a Cabinet form of government

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b. Yes

i. Benefits speedy decisions, no policy paralysis.

ii. As long as it doesnt become a dictatorial form government then its right.

c. But make sure that other agencies like parliament, judiciary and civil society and above all media keepsa check on it.

c) GoMs, EGoMs

1) Meaning

1. Both EGoM & GoM were appointed under the GoIs Transaction of Business Rules, 1961.

2. Meaning

a. Task of GoM was to investigate the matter and then report to the Cabinet, which takes the decision.

b. But EGoM was a GoM which was empowered to take decisions on matters it is authorized for, andsuch decisions have the force of the Government decision.

2) Evolution

1. The mechanism of EGoMs and GoMs had been created by the first NDA government of Atal BihariVajpayee to tackle complex policy issues and resolve the clash of interests that are inevitable in ademocracy, more so in a coalition where inter-ministerial turf wars are harder to resolve.

2. However, under the UPA it often became an instrument to delay decisions.

3. During its 10 year rule, around 80 + such groups were setup on matters ranging from complex to trivial.

3) NDA Government

a) Abolishing it

1. In May 2014 NDA government announced the abolition of all Groups of Ministers (GoMs)andEmpowered Groups of Ministers(EGoMs).

a. NDA government inherited 21 GOM and 9 EGOM from the UPA government.

b. The issues pending before the EGoMs and GoMs will now be processed by the Ministries anddepartments. If the Ministries face any difficulties, the Cabinet Secretariat and the Prime MinistersOffice will facilitate the decision making process.

2. Why abolished? According to NDA government, this will

a. Ensure greater accountability

b. Expedite the process of decision-making.

c. Ensure greater empowerment of ministries and department.

d. The concept was also criticized for diluting the doctrine of Cabinet responsibility.

e. PM will have the last word on policy-making.

i. Due to GOMs the authority and supremacy of the PMO got eroded, with the last incumbent, Dr.Manmohan Singh, virtually handing over his powers to the Ministers who headed most of thesegroups Pranab Mukherjee, Sharad Pawar, P. Chidambaram and A.K. Antony.

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3. It is in line with the aim of NDA government to

a. End the policy paralysis that its predecessor was accused of, and

b. Achieve its goal of minimum government, maximum governance.

4. Concluding remark

a. As we said above that according to NDA government, all Ministers who have difficulties in decidingissues relating to their own Ministry to refer them to the PMO and the Cabinet Secretariat forresolution.

b. But it should be ensured that this should not lead to an unhealthy centralization of power and anautocratic regime in the future.

c. An omniscient super-PMO must not destroy the Cabinet system that envisages decisions throughconsensus.

d. Rather, Mr. Modi should act as a facilitator, using persuasion and not diktat. He must rely on thecollective wisdom of his Cabinet colleagues to create an effective and harmonious administration.

b) GoMs are back in business, but only informally April 2015

1. 9 such groups.

a. In the 11 months since he abolished nine Empowered Groups of Ministers (EGoMs) and 21 Groupsof Ministers (GoMs) that he had inherited from the UPA government, PM Narendra Modi hasinformally constituted at least nine such groups of course, without any official notification.

b. The latest came on April 9, 2015, when Mr. Modi referred the proposed contentious amendments tothe Juvenile Justice Act to a group of senior Ministers instead of taking it up at the evenings Cabinetmeeting.

c. Of the nine-odd groups set up by the Modi government, seven have been constituted to look atcontroversial pieces of legislation.

2. Comment

a. If the dissolution of the UPAs GoMs and EGoMs last May was intended to send out an unequivocalmessage that the BJP-led NDA government intended to end the policy paralysis that its predecessorwas accused of, the creation of committees without names are an indication that governance can bea difficult business.

d) PMO rising in power

1) Signs of emergence of a strong PMO

1. Comment of Nirpendra Mishra (present principal secretary)

a. PMO must reflect image, personality, commitments of PM.

b. Nripendra Misra after taking over as Principal Secretary in the Prime Ministers Office (PMO) assertedthat the PMO will have to reflect the image, personality and commitment of the Prime Minister. Theentire machinery will be geared up to fulfill the mandate of the new leader.

c. He said that PMO, which is set to become an important power centre in the new dispensation.

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2. As Gujarat CM

a. Mr. Modis office played a critical role in governance in Gujarat, fast-tracking key projects through thedecision-making process.

b. Thus, as the past record shows, Modi will make his office stronger even now.

3. Establishing of GoM, EGoM

a. They have been established and all ministries facing problem will be guided by PMO and Cabinetsecretariat.

2) Facts

1. It is a staff agency meant for providing secretarial assistance and crucial advice to PM.

2. When established 1947

3. Status

a. It is an extra constitutional body.

b. It enjoys the status of a department of the Government of India under the allocation of business rules,1961.

4. Composition

a. PMO is headed politically by PM, and administratively by the Principal Secretary.

b. It additionally consists of other secretaries and advisors like

i. Advisor to PM,

ii. National security advisor,

iii. Communication advisor, etc.

5. Functions - Why need of PMO?

a. Main task

i. He assists the PM in the discharge of his overall responsibilities

ii. He performs various technical functions so as to leave PM with enough time to concentrate onmajor policy decisions by processing all the proposals that are sent to him.

iii. Looking after the public relations of the PM like contact with the press and general public.

iv. As all functions which dont belong to any misitry/department belongs to PM, so PMO acts asa residual which legatee deals with all such subject which are not allotted to any ministry/department.

b. Other tasks

i. Cabinet activity

1. As PM is the coordinator of the cabinet and there is proximity of PMO to PM, so it playsan influential role in cabinet activity as well.

ii. Foreign policy

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1. And although the external affairs ministry is a regular and large ministry, but in reality its the

PM who in consultation with PMO guides and design the foreign policy of nation.

iii. Planning

1. Since pm use to be the chairman of Planning Commission and thus PMO exercises considerable

influence during deliberations and formulations of plans.

2. Its evolution

a. Role of PMO varied from PM to PM, i.e., it depended on individual style of functioning of PM.

b. But broadly we can say that it has grown in both

i. Size and

ii. Power, status.

c. Reasons for dominance of PMO over cabinet:

i. Obvious reasons

1. Enormous role of PM and

2. As PM is the coordinator of the cabinet, and there is proximity of PMO to PM , so PMO

also plays an influential role in cabinet activity as well.

ii. Also it depends on the personality of

1. PM: If wants a strong PMO then obviously it will happen

2. Principal secretary: When LK Jha, Brijesh midhra were PS then PMO became dominant.

3. In general, members of PMO have a tendency to acquire power and authority of their own

in the name of Prime Minister.

3. Conclusion

a. Due to the fact that PM performs various functions, big PMO is required and will remain in the future

also.

b. But it should not dominate and interfere in the functions of:

i. Cabinet secretariat and

ii. Other ministries/departments

c. And for this to happen both should act sensibly and responsibly

i. Principal secretary himself should not try to assert himself and should not try to take advantage

of his position.

ii. Most importantly PM has the major role because role of PMO depends mainly on how the PM

wants to use it, i.e., relation between cabinet secretary and principal secretary depend on him.

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e) Leader of Opposition

1) Overview

1. Has statutory backing

a. The post of leader of opposition has received statutory recognition through theSalary and Allowances

of Leaders of Opposition in Parliament Act, 1977

b. It defines the term leader of opposition.

2. Definition

a. The above act which defines the term Leader of the Opposition as That member of theLok

Sabhaor the Rajya Sabhawho, for the time being, is the Leader of that House of the Party in

Opposition to the Government having the greatest numerical strength and recognized, as such, by the

presiding officer of that house.

b. Or in simple words Leader of the Oppositionis a legislator who leads theofficial oppositionin

either House of theParliament of India.

3. Criteria for formal recognition

a. 10% of total strength:

i. In order to get formal recognition, the concerned party must have at least10% of the total

strength of the House(55 seats in the Lok Sabha).

ii. If any party fails to get 10% seats in opposition, the House will not have recognized leader of

the opposition.

b. Not awarded to leader of alliance:

i. The post of Leader of the Opposition can only be awarded to the leader of a single political party

and not to the leader of an alliance, even if the alliance was formed prior to the election.

ii. This means that a single party would have to meet the 10% seat criteria, not an alliance.

4. His role

a. The Leader of the Opposition enjoys the rank of a Cabinet minister.

b. The Leader of the Opposition in Lok Sabha serves on several important committees, including the

selection panels for the

i. Chief Vigilance Commissioner,

ii. Central Bureau of InvestigationDirector,

iii. Members of the Lokpal,

iv. Members of NHRC and

v. Chief Information Commissioners.

c. Democracy requires strong opposition voice to act as checks and balances.

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5. What if no officially recognized leader of opposition?

a. In cases where there is no officially recognized Leader of the Opposition, the leader of the singlelargest group in opposition will discharge the role of leader of opposition. However, leader of thelargest group does not receive the salaries and allowances that an officially recognized one wouldenjoy.

b. Or simply, in words of Subash Kashyap we can have leaders in opposition but we cant have theleader of opposition.

2) Background

1. 1st Official leader of opposition

a. Ram Subhag Singh

b. He was of congress(O)

c. Appointed in 1969 when there was a split in congress.

2. When Indian didnt had any official leader of opposition?

a. Till 1969 and

b. From 1980 1989

3) In news with respect to Lok Sabha

In the 16th Lok Sabha congress was the 2nd largest party with 44 seats.

But for claiming the post of leader of opposition it needs 55 seats (10% of strength of house).

So its well short of it.

Although, the UPA has 60 members, but as we read above that the post can be given only to leader ofa party and not to leader of alliance.

This was said by Shubash Kashyap and also by attorney general.

Suggestion

o According to some experts, number of votes instead of seats shall be the criteria. In 2009 BJP got19% of votes but got LOP. In 2014, Congress also got 19%.

Conclusion

o Government should amend the law to allow the opposition to claim it.

o Should rise above partisan politics and should be flexible.

5) State - GOVERNORS

1. Removal of Governor (Pleasure of President)

1) Introduction

1. Governor holds office during the pleasure of President.

2. Removal

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a. I.e., he can be removed before the expiry of his 5 year tenure. Thus, he has no security of tenure andno fixed term of office. He can be removed anytime.

b. Constitution doesnt lay down any ground upon which governor may be removed by the President.

3. Transfer

a. Also, President may transfer a governor appointed to one state to another for the rest of the tenure

b. Does it also come under Pleasure of President?

4. And as the President is bound to acton the aid and advice of the Council of Ministersunder Article 74of the Constitution, in effect it is the central government that appoints and removes the Governors.Pleasure of the President merely refers to this will and wish of the central government

(a) Removal with change in union government Spoils System

Office of the government is subjected to the spoils system under which the party in power after winning theelection rewards its loyalists.

1. VP Singh government - 1989.

a. National front government headed by VP Singh asked all the governors to resign as they were appointedby the Congress government (some were replaced, some were allowed to continue)

2. Congress government - 1991

a. Same thing was repeated in 1991, when Congress government headed by PV Narsimha Rao changed14 governors appointed by previous government (of VP Singh and Chandra Shekhar)

3. UPA government in 2004

a. UPA led central government removed the Governors of UP, Haryana, Gujarat and Goa in July, 2004

4. Recently NDA government

a. NDA government removed more than 15 governors.

b. Majority of them were asked to resign, a couple of them were removed; and a couple resigned afterbeing transferred to NE states.

c. This was criticized by opposition parties and media as a dictatorial step, unconstitutional, unethical.

(b) Arguments in favor by NDA government

1. Policies: If the views of the Governor are not in tune with the policies of the new government then he/she may create problems for the Centre.

2. Like Attorney-General, the Governors too should quit soon after a change of guard at the Centre.

3. Most of were appointed by Sonia Gandhi and not on merit.

4. In 2004, four Governors were appointed during NDAs regime were removed arbitrarily. So its tit for tat.

c) Conclusion

1. SC judgment in BP Singhal vs UOI, 2010 (important, it was in news)

a. The President, in effect the central government, has the power to remove a Governor at any time

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i. without giving him or her any reason, and

ii. without granting an opportunity to be heard.

iii. (these 2 were recommended by previous commissions see below)

b. However, this power should only be exercised in rare and exceptional circumstances for valid andcompelling reasons. Governor cant be dismissed arbitrarily on grounds, such as:

i. Central government has lost confidence in him.

ii. His ideology is at odds with that of union government.

iii. Thus, a change in central government cannot be a ground for removal of Governors, or to appointmore favorable persons to this post.

c. A decision to remove a Governor can be challenged in a court of law.

i. In such cases, first the petitioner will have to make a prima facie case of arbitrariness or bad faithon part of the central government. If a prima facie case is established, the court can require thecentral government to produce the materials on the basis of which the decision was made in orderto verify the presence of compelling reasons.

d. Sarkaria commissions recommendation

a. Fixed tenure of 5 yrs (it should be disturbed rarely and that too for extremely compelling reasons).

b. If he is removed then the procedure should be

i. Governor should be apprised of the grounds on which he is removed and thus should be giventhe opportunity to defend himself.

ii. President shall get governors explanation examined by an advisory group consisting of VP andretired CJI or LS speaker.

iii. After receiving the groups recommendation, parliament can pass appropriate orders.

iv. Ground for dismissal should be laid before the both houses of Parliament.

2. Appointment

a)(i) Present scenario

1. Maximum people appointed from politicians:

a. I.e., those from ruling party.

b. Who have lost elections.

c. In some cases ex-CMs also appointed.

2. 2nd category is of retired bureaucrats.

3. Retd. Chiefs of defense services.

4. Social activists.

5. Academicians.

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Recommendations

Various commissions like ARC-1, Sarkaria commission, NCRWC, Punchhi commission have made

recommendations with respect to it, so broadly we can say that

1. Criteria to be seen

a. Person of eminence.

b. Person of detached personality (detached from political parties and material pursuits).

c. Person of wide social and political background.

d. Deep understanding of economy and polity.

e. Should be appointed from outside the state.

2. With respect to politicians:

a. Active politicians shouldnt be appointed.

b. Those politicians shouldnt be appointed (i.e., those who have lost election).

c. Those who have spent a large part of his life in serving one party.

3. With respect to civil servants:

a. Cooling off period should be there.

4. Consultation

a. Consultation with the state of CM should be there.

b. Also others should be consulted like speaker of LS and Vice President to widen the base.

c. Consultation should be transparent instead of confidential

b)(i) CBI questioned governors of WB and Goa as witness

In January 2014, CBI had approached Union Law Ministry underUPA Governmentto record statements

of West Bengal GovernorM.K. Narayananand Goa GovernorBharat Vir Wanchoo for being a witness

to chopper-gate (i.e., Augusta Westland scam or 2013 Indian helicopter bribery scam).

Their statements were considered vital as Narayanan wasNational Security Adviserand Wanchoo was

Chief ofSpecial Protection Group(SPG) at the time of signing of contract with Agusta Westland.

However, Union Law ministry rejected CBIs request to examine them claiming they had constitutional

immunity Under Article-361.

UPA was defeated inIndian general election, 2014and with the incomingNDA Governments permission,

West Bengal GovernorM.K. Narayananbecame the first ever Governor to be questioned by police in a

criminal case. Later on Bharat Vir Wanchoo was questioned.

o Its because immunity Under Article-361, includes immunity from prosecution but doesnt precludes

questioning of governor as witness.

Subsequently, both of them resigned (MK naraynan on 30th June and Wanchoo on 4th July)

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b)(ii) immunity Under Article 361

1. With respect to Official acts (even after tenure):

a. He enjoys personal immunity from legal liability for his official acts (even after tenure).

2. With respect to personal acts (during tenure):

a. During the tenure of his office, he is immune from any criminal proceedings even in respect of hispersonal acts. He cant be arrested or imprisoned.

b. However, after giving 2 months notice, civil proceedings can be instituted against him during his tenurewith respect to his personal acts.

c) Special powers of governor with respect to Hyderabad

1. Background information

a. Hyderabad is not a UT. For 10 years it will be the joint capital of AP and Telangana and thereafterit will be the capital of Telangana only.

b. Also AP and Telangana have a common governor.

2. Issue

a. Now the section-8 of AP reorganization act says that the governor of the two states shall have specialresponsibility with respect to Hyderabad esp. in matters such as laws and order and internal security.

b. It is given for the security of life and property of all those who reside in such area:

i. This was demanded by people of Seemandhra who are living in Hyderabad.

c. For this governor has discretionary power and the validity of anything done by the Governor inexercise of his individual judgment shall not be called in question.

d. The Governor shall be assisted by two advisors to be appointed by the Central Government.

3. But this is opposed by TRS (Telangana Rashtra Samiti) who argues that it lacks control of Hyderabad.

4. Domino effect (as said by TRS)

a. The bigger threat is the use of similar orders to meddle with the affairs of other major cities in India.

b. A certain section comprising outsiders has been demanding that the administration of Mumbai beseparated from Maharashtra. The attacks on the workers of Uttar Pradesh and Bihar have led to suchdemands. Even the corporate world, which has no love or respect for the local sentiments, culture,language and heritage of a city or a State, is complicit in making such demands.

c. A section of the corporate world has made such controversial demands even in Bangalore in the past.

d. It is not the question of Hyderabad alone. It can happen to any other major city in India. No cityincluding Bangalore, Mumbai and Chennai will be safe if we dont oppose the orders of the Centre.

e. If not opposed then all this may lead to unrest across India and pit the locals against the outsiders.

5. Note

a. This is a distinctive case as only when a governor is on leave or there is vacancy in a state then onlya governor of other state is given an additional charge.

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6) Federalism

Cooperative Federalism

1. Meaning of Cooperative Federalism

a. Sincere cooperation between center and state; complete coordination

b. There is consensus among the two on fundamental issues.

2. PM Modis comment

a. We want to promote co-operative federalism in the country. At the same time, we want a competitive

element among the states. I call this new form of federalism Co-operative and Competitive Federalism

b. Modi has on many occasions called that team India (center and states) must work to forge a cooperative

federalism.

3. Steps by government in this direction

a. Far-reaching recommendations of the 14th finance commission, creation of the NITI Aayog and

implementation of GST, will further the Governments vision of cooperative and competitive federalism.

b. The necessary, indeed vital, encompassing of cities and other local bodies within the embrace of

cooperative and competitive federalism is the next policy challenge.

4. At the same time, since May 2014 several irritants have emerged as well.

a. The removal and appointment of governors, the home ministrys instructions to Haryana on the

Haryana Sikh Gurdwara (Management) Act, 2014, to Telangana to hand over law and order powers

to the governor of Hyderabad and to the National Investigation Agency on the Burdwan blasts probe

are instances that remind us that cooperative federalism remains on the horizon of our expectations.

7) Judiciary

a) Analysis of SC cases January 2015

1. Constitutional cases According to analysis of 888 final judgments by various benches of the SC handed

down in 2014 -

a. An analysis of the courts rulings has shown that just 7 per cent of the judgments passed by the

Supreme Court last year dealt substantially with Constitutional matters.

b. The new findings, alongside earlier ones by legal researcher Nick Robinson, point to the growing

proportion of routine appeals in the apex courts workload as against core Constitutional matters.

c. The problem, senior advocate Rajeev Dhawan said, is structural. I have suggested that the SCs

Benches should be split into three separate divisions public law, civil law and criminal law, he said.

2. PIL

a. Despite the SCs reputation in the public imagination as the arena for public interest litigation, less than

2 per cent of the SCs admission matters in 2011 were writ petitions.

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3. Special leave petitions forms the bulk

a. The bulk of the SCs workload was appeals from the High Courts, known as Special Leave Petitions,which made up 85 per cent of its admission matters. While the proportion of writ petitions has fallensteadily, that of SLPs has risen steadily over time, Mr. Robinson found.

b) Ex-CJIs as governors

1) Introduction:

In September 2014, former CJI P. Sathasivam was appointed as Kerala governor.

It is for the first time a former CJI is being appointed to a such a natorial post.

And this generated a debate on judicial autonomy.

2) Compromises judicial autonomy a wrong trend:

Sources in the judiciary and legal profession say the appointment of a Governor is mercy of the

Executive.

This may adversely affect Judiciarys autonomy as the outgoing CJI may take decisions in favor of

executive in return for the post of governor.

And thus it may set a wrong precedent.

Former CJI V.N. Khare said that if he had been offered, he would have refused. Advocate Prashant

Bhushan agrees that such appointments are not at all appropriate.

3) Thus it is not a right trend

But other experts said that there is nothing wrong in accepting a Constitutional post after retirement.

Best person to judge constitution

a. A constitutional expert argued that we needto have distinguishedpersons who have some mastery of

the Constitution, who can deal with a Constitutional crisis. Who is better than a former CJI?

b. Thus, in his view of Justice Sathasivams appointment would in fact elevate the office of the

Governor. And one such appointment cannot be called a trend. If at all, this is a healthy trend

Other patronage system also there

a. ExCJI Sathasivan said that the former CJI Ranganath Mishra was a member of the Rajya Sabha.

b. Also some former chief justices of high courts have functioned as Law Ministers.

Also ex - CJI Sathasivamsaid that the role of Governor was limited and was an opportunity to serve the

people.

4) Conclusion cooling off period

Former chairperson of parliamentary standing committee on law suggested that judges should go through

a cooling off period before taking up positions offered by government.

Law commission recently suggested that a cooling off period of 3 years should be there.

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c) Contempt of Court

1) In news

1. On January 30, 2015, the Supreme Court sent M.V. Jayara January of the Communist Party of India(Marxist) to four weeks in prison for criminal contempt of court.

2. In a public speech delivered in 2010, Mr. JayaraJanuary, who is an ex-Member of the Legislative Assemblyfor Kerala, had criticized a Kerala High Court judgment banning meetings along public roads in order toensure the smooth flow of traffic, observing that the judges were idiots, should resign from office andthat their judgment had the value of grass.

3. The High Court had found him guilty of contempt, and the Supreme Court agreed, but reduced hissentence from six months to four weeks.

4. Comment

a. The concern that the judgment raises is that while chilling statements of the nature that he made, itwill also chill healthy and legitimate criticism from being circulated for fear of contempt sanctions.

b. Given the secure institutional position of courts, we should err on the side of under-enforcement thatpromotes genuine criticism, rather than over enforcement which seeks to stifle illegitimate criticism.

2) About it

The following 3 articles are related to contempt of court

1. Article 19(2)

2. Article 129

3. Article215

Article -19 (2)

Article19 (1)(a) provides for freedom of speech and expression.

And Article19(2) provides allows the state to impose reasonable restriction on it on many grounds. Andone of it is contempt of court.

Article 129 and Article-215

Article 129 SC to be a court of records

Article215 HC to be a court of records

I.e. these 2 articles explicitly gives powers to SC and HC respectively to punish someone for their contempt.

Article Title Exact wording of article

129 SC to be a court of record SC shall be a court of record and shall have all the powers(Remember it has 3 meanings..1 of such a court including the power to punish forof them is with respect to contempt of itself.contempt)

215 HC to be a court of record Every HC shall be a court of record and shall have all thepowers of such a court including the power to punish forcontempt of itself.

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d) Delay in cases

1. LM Mishra assassination case was killed in 1975, final verdict was given in December 2014; took almost40 years.

2. Hashimpura verdict 28 years

3. Salman Khan case still pending

e) Under-Trials

1. Meaning

a. One who is currently ontrialor who is imprisonedon remandwhilst awaitingtrial.

2. How many Present status in India

a. As per data compiled by NCRB at the end of 2013, out of the total population of 4,11,992 inmatesin jails, the total number of undertrial prisoners in the country was 2,78,503, which constitutes 67.6%of total inmates.

3. Reason

a. Slow judicial process; slow & complex criminal justice system

b. Since under-trial prisoners are generally illiterate - totally unaware of their rights and the charges theyface; are unable to access the documents relating to the case and unaware of bail order or terms andconditions and strong legal aid to project their rights is required.

4. Consequence

a. Overcrowding of jails

b. Financial and other burden on jails, i.e., due to huge number of trials there is a huge financial burdenon jails. Also the jails are over-crowded.

c. And many of the undertrials are locked with hard core criminals which can have negative effects.Also there is high prevalence of AIDS and chances of people getting in these overcrowded jails arehigh.

d. Denial of justice Justice delayed is justice denied.

5. Steps taken in late 2014 section 436A

a. Section 436A of CrPC

i. It states that if an under trial has been hailed for a period extending up to half the maximum termfor that offence, he shall be released on personal bond.

ii. The clause does not apply to those who could face death or life term.

b. Steps taken

i. Supreme Court in its order dated 5.9.2014 in Bhim Singh Vs Union of India & Others relatingto under trial prisoners, has directed for effective implementation of Section 436A of the CrPCby directing the jurisdictional Magistrate/Chief Judicial Magistrate/Sessions Judge to hold onesitting in a week in each jail/prison for two months commencing from 1st October, 2014 for thepurposes of effective implementation of section 436A of the CrPC.

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ii. An advisory dated 27.9.2014 has also been issued by the Government of India to the States/UTson reckoning half-life of time spent in judicial custody of undertrial prisoners under Section 436Aof Cr.P.C.

f) Tribunals (problems with them) March 2015

1. In march 2015, Madras High Court struck down key provisions relating to the Intellectual PropertyAppellate Board (IPAB) established under the Trade Marks Act, 1999, as unconstitutional.

2. This is yet another interlude in the tussle between judiciary and the legislature on the tribunalisation ofcourts.

3. There has been much concern over the validity, character and competence of several of the tribunals inIndia.

a. The Supreme Court has, in a range of decisions, articulated the principles that a tribunal has to abideby in order to be constitutionally valid. The Court in Chandra Kumar(1997) andNCLT(2010) suggestedthat the tribunals which were replacing the jurisdiction of the Courts should enjoy the same constitutionalprotections as them. This meant that when the jurisdiction is being transferred from a court to atribunal, the members of this tribunal should hold a rank, status and capacity which is as close to thoseof the judges in a court as possible.

b. A Vidhi Centre for Legal Policy report (2014) has identified about 29 different tribunals set up undervarious Central legislations, and finds several of them to be inconsistent with the parameters laid downby the Supreme Court.

c. The crux of the present case is with regard to the qualification and selection of Chairman, JudicialMember and Technical Member of the IPAB.

4. Yet, little effort has been made by the legislature in making the law consistent with these constitutionalprinciples. Instead, as the honorable judges have noted, the government continues to be furtive andreticent about these precedents while the tribunals usurp judicial powers.

5. Concluding remark -

a. At stake are core principles of an independent judiciary and separation of powers, a part of the basicstructure of the Constitution.

b. Tribunals are designed for speedy disposal of specialized disputes. But a tribunal which is biased,incompetent and unfair, cause more harm than serve such intended purposes.

g) NJAC National Judicial Appointments Commission

1. Overview

a. National Judicial Appointments Commission (NJAC)is a proposed body to be responsible for theappointment and transfer of judges to the higher judiciary inIndia.

b. The Commission is established by amending theConstitution of Indiathrough the ninety-ninthconstitution amendment vide the Constitution (Ninety-Ninth Amendment) Act, 2014 passed by theLokSabhaon 13 August 2014 and by the Rajya Sabhaon 14 August 2014.

c. The NJAC replaced thecollegium systemfor the appointment of judges as mandated in the existingpre-amended constitution by a new system.

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d. Along with the Constitution Amendment Act, the National Judicial Appointments Commission Act,2014, was also passed by the Lok Sabha and the Rajya Sabha to regulate the functions of the NationalJudicial Appointments Commission.

e. The NJAC Bill and the Constitutional Amendment Bill, was ratified by 16 of the state legislaturesin India, and subsequently assented by thePresident of Indiaon 31 December 2014.

f. The NJAC Act and the Constitutional Amendment Act came into force from 13 April 2015.

g. A new article, Article 124A, (which provides for the composition of the NJAC) will be inserted intothe Constitution.

2. Composition As per the amended provisions of the constitution, the Commission will consist of thefollowing persons:

a. Chief Justice of India(Chairperson,ex officio).

b. Two other senior judges of the Supreme Court next to the Chief Justice of India -ex officio.

c. The Union Minister of Law and Justice,ex-officio.

d. Two eminent persons (to be nominated by a committee consisting of the Chief Justice of India,PrimeMinister of Indiaand theLeader of oppositionin the Lok Sabha or where there is no such Leader ofOpposition, then, the Leader of single largest Opposition Party in Lok Sabha), provided that of thetwo eminent persons, one person would be from theScheduled Castes or Scheduled TribesorOBCorminority communitiesor a woman. The eminent persons shall be nominated for a period ofthree years and shall not be eligible for re-nomination.

3. Functions As per the amended constitution, the functions of the Commission include the following:

a. Recommendingpersons for appointment as Chief Justice of India, Judges of the Supreme Court,Chief Justices of High Courts and other Judges of High Courts.

b. Recommending transfer of Chief Justices and other Judges of High Courts from one High Court toany other High Court.

c. Ensuring that the persons recommended are of ability, merit and other criteria mentioned in theregulations related to the act.

4. Procedure to be followed by the commission The National Judicial Appointments Commission Bill,2014, has laid down the following procedures for the selection of the Judges of the higher judiciary.

a. Procedure for Selection of Supreme Court judges

i. Chief Justice of India

1. The Commission shall recommend the senior-most judge of the Supreme Court for appointmentas Chief Justice of India.

2. This is provided he/she is considered fit to hold the office.

ii. Supreme Court Judges

1. The Commission shall recommend names of persons on the basis of their ability, merit andother criteria specified in the regulations.

2. The Commission shall not recommend a person for appointment if any two of its membersdo not agree to such recommendation.

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b. Procedure for Selection of High Courts judges.

i. Chief Justices of High Courts

1. The Commission shall recommend a Judge of a High Court to be the Chief Justice of a HighCourt on the basis of seniority across High Court judges.

2. The ability, merit and other criteria of suitability as specified in the regulations would also beconsidered.

ii. Appointment of other High Court Judges

1. The Commission shall seek nominations from Chief Justice of the concerned High Court forappointments of High Court Judges and then forward such names to the Chief Justice of theconcerned High Courts for his/her views. In both cases, the Chief Justice of the High Courtshall consult two senior most judges of that High Court and any other judges and advocatesas specified in the regulations.

2. The Commission shall elicit the views of the Governor and Chief Minister of the state beforemaking recommendations.

3. The Commission shall not recommend a person for appointment if any two members of theCommission do not agree to suchrecommendation.

h) Commercial courts

Law commissions view in January 2015

o Law Commission on Thursday recommended a new law and changes in CrPC to set up following toensure speedy disposal of monetary suits

exclusive commercial courts and

commercial divisions in the high courts across the country

o If implemented then this will lead to quick resolution of commercial disputes which will in turnfurther economic growth, increase foreign investment, and make India an attractive place to do business.

Budget 2015

o For the quick resolution of commercial disputes, the Government proposes to set up exclusive commercialdivisions in various courts in India based on the recommendations of the 253rd Report of the LawCommission. The Government proposes to introduce a Bill in the parliament after consulting stakeholdersin this regard.

8) Elections

a) Gujarat first to make voting compulsory in local body polls Nov 2014

1. Introduction

a. In Nov 2014, the Gujarat Local Authorities Laws (Amendment) Bill, 2009 received the Governorsassent.

b. This act makes voting compulsory in local bodies.

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c. It shall now be the duty of a qualified voter to cast his vote at elections to each of these bodies. Thisincludes the right to exercise the NOTA option.

d. The Act empowers an election officer to serve a voter notice on the grounds that he appears to havefailed to vote at the election. The voter is then required to provide sufficient reasons within a periodof one month, failing which he is declared as a defaulter voter by an order.

e. The penalty has not been spelt out and it may find a place only in rules to be framed in future.

f. The Act carves out exemptions for certain individuals from voting if (i) he is rendered physicallyincapable due to illness etc.; (ii) he is not present in the state of Gujarat on the date of election; or(iii) for any other reasons to be laid down in the Rules.

2. Critical aspect

a. In favour

i. Would reverse the trend of declining voter turnout in successive elections.

ii. Parliament would reflect, more accurately, the will of the electorate.

iii. People who know they will have to vote will take politics more seriously and start to take a moreactive role.

iv. Voting is a public duty in a democratic state which everyone should do.

v. It is done in some countries like Australia, Latin American countries like Brazil, Argentina.

b. Against

i. Violates RPA

1. Section 79(d) of the Representation of the People Act says: that electoral right includesthe right to vote or refrain from voting at an election.

ii. Violates constitution

1. It is in violation of freedom of expression.

2. Violates A-21

3. Right to vote also includes right not to vote

iii. It is practically impossible.

iv. There are other suggestions to increase voting.

v. Such a law could lead to huge number of cases because the law had to be implemented properly.

b) Educational qualification for contesting elections Dec 2014

1. Overview of episode Timeline

a. Rajasthan Panchayati Raj (Second Amendment) Ordinance, 2014

i. It was promulgated on 20th Dec, 2014.

ii. It introduces a set of educational qualifications of secondary education in order to be able tocontest Panchayat elections.

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iii. For the post of Sarpanch, Class VIII is the minimum qualification, while posts in the Zila Parishadrequire a Class X pass.

b. The ordinance was challenged by several non-governmental organizations and political parties includingthe Congress and a petition was filed in SC challenging the ordinance.

c. In early January 2015, SC refused to hear the petition on procedural grounds and send it back to theHigh Court. The petition is currently being heard by the Rajasthan High Court.

2. Debate

a. Arguments in favour of Educational qualification

i. The rationale of the law is to encourage education and literacy.

ii. As Panchayts handle developmental funds educated people will be more efficient and less corrupt.

iii. The ordinance may be constitutionally valid as the facts are analogous to the reasoning of the SupremeCourt inJaved(2003). (InJaved, the Supreme Court upheld the constitutionality of a provision that stipulatedthat no person who has more than two children could be elected as the sarpanch or panch of a panchayat. Asimilar reasoning may be applied in the case of this ordinance as well)

b. Arguments against prescribing Educational qualification

i. They might be unlettered, but not uneducated. They can have learned more in the school of life.They can have wisdom which is not taught in schools.

ii. With respect to inefficiency & corruption

1. Corruption has no connection with educational qualification,

2. Infact most corrupt people are so-called literate.

iii. Will exclude many as leave secondary, people are not fully literate.

1. According to 2001 census, 82.5% of people above 20 yrs of age in rural Rajasthan dont haveformal education beyond class 5 or primary level.

iv. The law therefore excludes the majority of potential women contestants.

1. The Rajasthan government has provided for 50 per cent reservation for women in PRIs. Butin rural areas, the literacy rate of women is only 45.8 per cent in tribal areas it is 25.22per cent as opposed to the corresponding male literacy rate of 76.16 per cent.

v. Loopholes can be found

1. TheJavedjudgment was criticised as there were instances where men gave their daughters upfor adoption to be able to contest elections.

2. Ironically, it is not difficult for those who are influential to obtain false Class X certificateseither.

vi. Education qualification is not the right criteria

1. Panchayat governance requires ethical values and an understanding of local issues gainedfrom experience, more than Class X certificates.

2. Going to school in itself doesnt teaches you how to listen to people, how to empathize, howto understand others.

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vii. Against FR In India, the right to vote is only a statutory right, but the act of voting is aconstitutionally protected freedom of expression under Article 19, as a fundamental right (PUCL,2013). The freedom to vote is inseparable from the freedom to contest in elections, and hencea policy of encouraging education cannot arguably prevail over fundamental rights.

c) Dynasty rule - (Hardly an end)

1. In the aftermath of 2014 general assembly verdict, media proclaimed everywhere that Dynasty politicshas come to an end due to following reasons

a. Defeat of congress (which is synonymous to Nehru-Gandhi party) and Victory of BJP which isperceived as less dynastic.

b. Election of Narendra Modi as PM who has no political dynasty background.

c. No. of MPs having dynastic background has declined to 24% in 2014 from 29% of 2009.

d. Modi criticized Congress on various occasions on the issue of dynasty

e. Steps taken by Modi like choosing his cabinet colleagues as well as his direction that futuremember of party should be chosen based on merit instead of family background, forbidding BJPMPs from appointing family members to their personal staff.

2. But we do a close examination then dynasty rule is alive:

a. Number of MPs are still high at around 24% which is higher then various modern democracies likeUS, Canada, UK, Norway, Belgium, Israel in which the proportion of dynastic legislators rangedbetween 1 11%.

b. Number cabinet members having dynastic background (although dropped from 36% to 24%, but stilla higher number)

c. And if go beyond union level then it still continues

i. At state level (some 1/3rd states are led by a dynastic CM).

ii. In State legislatures its very high.

iii. Even leaders of political parties and higher membership has dynastic background

d. In future, BJP can also move towards dynastic politics:

i. Many BJP MPs dont have a family background preceding them but they do have a family

members which may follow them in political positions

ii. Example:

PM Atal bihari vajpayees niece and nephew followed him,

Relatives of Kalian Singh, Vasundhra Raje, Raman Singh, Rajnath Singh, PK Dhummal, BS Yeddyruppafollowed them.

3. Reason for continuance of dynasty politics:

a. Higher returns associated with state office:

i. Returns like corruption, preferential access to lands, speedy regulatory process, and politicalprotection as state is not neutral, police protection, etc.

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ii. Due to this, families of politicians want to enter politics instead of areas like business, bankingor bureaucracy.

b. Weak organization of political parties:

i. Family ties function as a substitute for weak organizations.

4. Conclusion - So it all depends on how various political parties proceeds in coming time.

a. Will they learn from this verdict and will give preference to merit then family background.

b. Congress talks of democratization in organizational structures, but will they bring any change at the

top level.

c. And will BJP be able to sustain it.

d) FPTP vs PR

In the aftermath of 2014 general election result when it was seen that BJP vote share is less than 50% butstill secured absolute majority then the debate of switching from first past the post (FPTP) to proportionalrepresentation (PR) revived again. So lets take a look at it.

FPTP PR (Proportional Representation)

With respect to working

1) Constituencies The entire country is divided into Either entire country is considered a single

small geographical units called constituency or large Geographical areasconstituencies or districts. are demarcated as constituencies (if the

country is large)

2) Representative Every constituency elects one More than one representative may be

from constit- representative elected from one constituencyuencies

3) For whom Voter can vote either for the either Voter votes for the party (as he doesnt

voter votes or for party for candidate know about candidate)

4)(a) Result Party may get more seats than votes Each party gets seats in the legislature inseats vis- in the legislature proportion to the % of votes it gets-vis votes

4)(b) Result Party (or coalition) who wins the Party (or coalition) who wins the electionswith respect to elections may not get majority of votes. gets majority of votes.majority

2) Why we choose FPTP over PR

1. Simplicity:

a. FPTP is extremely simple to understand even for common voters who dont have any specializedknowledge about politics and elections.

b. There is a clear choice presented to voters at the time of elections (which is not in PR).

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c. Voters have to simply endorse a party/candidate while voting.

d. In comparison to FPTP, PR is very complicated and cumbersome.

2. Stable government (coalition politics):

a. FPTP system generally gives the largest party or coalition some extra bonus seats more than theirshare of votes would allow. Thus it helps in the formation of stable government as a government canbe formed without coalition (or less members if there is coalition)

b. But in PR system as there will be fragmentation of votes due to proportion thus there will bemultiplication of political parties and thus leads to creation of coalition government And thus thereis more threat of instability.

3. Identity politics threat to nationalism:

a. PR system esp. in India would promote, sharpen and consolidate the parochial loyalties based on caste,community, religion and so on.

b. Its because under it each community would prefer to form its own party and thus gather votes on theselines.

c. And in India which is highly diverse in various aspects there are chances of huge proliferation. Thu