An Initiative of MADE EASY Group

INTERVIEW GUIDANCE PROGRAMME

CSE-2017

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CONTENTS
1. Holding Regular Parliament ...................................................................................... 1
2. Defection ....................................................................................................................... 4
3. Anti Defection Law ..................................................................................................... 5
4. Critical Aspect .............................................................................................................. 6
5. Simultaneous Elections ............................................................................................... 8
6. Electronic Voting Machines (EVMS) ...................................................................... 12
7. Voter Verifiable Paper Audit Trail (VVPAT) Units .............................................. 14
8. Election Commission or Election Ommission? ..................................................... 14
9. 'Largest Single Party' Vs 'A Combination with Majority Support'..................... 16
10. Section 126 (1) of the RPA, 1951 .............................................................................. 18
11. Election Commission & Contempt Powers ........................................................... 19
12. Corporate Donations Received by Political Parties .............................................. 20
13. State Funding of Political Parties ............................................................................ 20
14. Can Electoral Bonds Cleanse Political Funding? .................................................. 23
15. All-India Judicial Service (AIJS) .............................................................................. 24
16. Law Commission Report No. 272 Tribunals ......................................................... 25
17. Law Commission Report–266 .................................................................................. 28
18. Chief Justice of India (CJI): Should there be a Fixed Tenure for CJI? ................ 29
19. Contempt of Court .................................................................................................... 30
20. Law Commission’s 268th Report on Bail Reforms ............................................... 32
21. Under-Trial Prisoners ............................................................................................... 33
22. Motivated Public Interest Litigation (PIL) ............................................................. 36
23. B.N. Srikrishna Committee on Arbitration ............................................................ 37
24. Tele-Law...................................................................................................................... 38
25. Hate Speech Law Commission Report No. 267 .................................................... 39
26. Sedition ....................................................................................................................... 42
27. Right to Privacy ......................................................................................................... 45
28. Banning of Books ....................................................................................................... 46
29. Constitution (123rd Amendment) Bill, 2017 ........................................................... 47
30. Official Emblem of West Bengal .............................................................................. 49
31. VIP Culture ................................................................................................................. 49
32. Law commission Report No. 273 ............................................................................ 51
33. Prevention of Destruction of Public Property (PDPP) Act .................................. 55

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34. Mob Lynching ............................................................................................................ 56

35. Inner Party Democracy ............................................................................................. 58
36. Fake News .................................................................................................................. 60
37. Paid News ................................................................................................................... 63
38. Criminal Laws (Rajasthan Amendment) Bill, 2017............................................... 64
39. Pre-Censorship of Films ........................................................................................... 66
40. Lokpal .......................................................................................................................... 68
41. Animal Rights Cattle Sale Rules Stayed by Supreme Court ............................... 69
42. Law Commission Report No. 269 ........................................................................... 70
43. Cow Vigilantism ........................................................................................................ 73
44. Draft RTI Rules, 2017 ................................................................................................ 74
45. Grievance Analysis and Systemic Reforms ........................................................... 76
46. Lateral Entry into Civil Services .............................................................................. 77
47. New Cadre Policy for Civil All-India Services ...................................................... 78
48. Civil Services Anonymity in Social Media Age/Cag+1 ...................................... 79
49. The Inter-State River Water Disputes (Amendment) Bill, 2017 .......................... 80
50. Mahadayi River Water Dispute ............................................................................... 81
51. Assam NRC ................................................................................................................ 82
52. Uttar Pradesh Control of Organised Crime Act, 2017 (UPCOCA) Draft Bill ... 84
53. Criminalization of Politics ........................................................................................ 86
54. Private Member Bills ................................................................................................. 89
55. Democratic Recession ............................................................................................... 92

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HOLDING REGULAR PARLIAMENT

Controversy About Parliament’s Winter Session
Opposition parties have accused the government of delaying the Winter Session
“without justification”, and asked the President to stop this “unhealthy precedent”.

RECENT CONTROVERSY:
 Winter Session of Parliament is being held from December 15, 2017 to January 5, 2018 — much
later than usual. In the last few years, the session usually started in the third or fourth week of
November and closed just before Christmas.
 Opposition parties alleged that the government is avoiding Parliament so as to focus on Gujarat
assembly election campaign and avoiding tough questions on GST and economy.
 Union government which decided the schedule justified its decisions on following grounds
o It wants a regular Winter Session without clashing with the December 9-18 Gujarat
Assembly elections.
o Article 85 only requires that there should not be a gap of more than six months between
two sessions of Parliament. This year, the monsoon session ended on August 11, 2017.
So, the next session can be convened at any time until February 2018.

VIEW OF CONSTITUTION ON………

 No. of days: The Constitution does not specify when or for how many days Parliament should
meet. Article 85 only requires that there should not be a gap of more than six months between
two sessions of Parliament.
 No. of sessions: According to the convention dating back to 1955, Parliament meets for three
sessions in a year.
o Budget: The longest, the Budget Session, is held towards the beginning of the year.
o Monsoon: A three-week Monsoon Session follows from July to August.
o Winter: Winter Session, also three weeks long, is generally held in November-December.
 Who summons the Legislature?
o Article 85 says that Parliament will be summoned by the President (who shall act on the
aid and advice of the Council of Ministers.
o Similar provisions exist for State legislatures. Thus, it is effectively the Prime Minister (or
the Chief Minister) who determines the date and duration of Parliament session (or an
Assembly), subject to the gap being less than six months.
 Notification:
o The dates for each session are announced at least 15 days in advance, so Members have
adequate time to submit their questions and reach Delhi.

HISTORY OF ARTICLE 85
The Government of India Act, 1935:
 It specified that the central legislature had to be summoned to meet at least once a year, and
that not more than 12 months could elapse between two sessions.
 B R Ambedkar in 1949 stated that the idea behind this provision was to summon the legislature
only to collect revenue and to avoid scrutiny of the government by the legislature.

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Article 85 in the original Constitution:

 It required Parliament to be summoned “twice in a year”, with a gap of no more than six months
between its sessions.
First amendment:
 The First Amendment changed this in 1951, and now Article 85 only requires that there should
not be a gap of more than six months between two sessions of Parliament.

HAVE GOVERNMENTS ADHERED TO ARTICLE 85?

There has never been a gap of more than six months between two sessions of Parliament.
However, over the years, all governments have worked around the dates of sessions to accommodate
political and legislative emergencies.

Number of sitting days:

 Over the years, there has been a decline in the sitting days of Parliament. While Lok Sabha met
for an average of 130 days in a year during the 1950s, these sittings came down to 70 days in the
2000s.
 In 2011, political parties agreed to cut short the Budget Session so they could campaign for Vidhan
Sabha elections in five states.
 Lesser number of sittings indicates that Parliament was able to transact less business compared
to previous years.
 View of NCRWC: To address this, the National Commission to Review the Working of the
Constitution has recommended that Lok Sabha should have at least 120 sittings in a year, while
Rajya Sabha should have 100 sittings.

Scenario in states:

 In several States the situation is dire. Data for 20 Assemblies over the last five years (2013-2017)
indicate that they meet for 29 days a year on average.
 States such as Haryana (12 days a year) and Uttarakhand (13 days) rarely meet.

10 Minutes session:

 There have also been some extreme cases in terms of session time.
 Puducherry: On September 25, 2015, the Puducherry Assembly commenced a session at 9.30 a.m.
and closed at 9.38 a.m., which included a two-minute silence for obituary references

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o The record of the shortest session (five minutes.) is also by the same Assembly in
October 1986.
 U.P: In 2011, Uttar Pradesh held a 10-minute session to pass the resolution to divide the State
into four parts.

Extended monsoon session:

 Another interesting case of tweaking of rules is the year 2008.

 In 2008, the two-day Monsoon Session (in which a no-confidence motion was moved against the
UPA-I government over the India-US nuclear deal) was extended until December to prevent the
moving of another no-confidence motion.
 The reason is that the government wanted to take advantage of one of the rules of procedure
which stipulates that a motion cannot be proposed twice within the same session.

IMPORTANCE OF A REGULAR PARLIAMENT SESSION:

Regular and predictability sittings of parliament is key to a well-functioning democracy.

 Legislation: Law-making is dependent on when Parliament meets.

 Accountability: Parliament also has the important role of holding the government to account for
its actions.
 According to B.R. Ambedkar, parliamentary system as compared to presidential system provides
a better accountability of the government through regular assessment by members in the form of
questions, motions and debates on addresses.

WAY AHEAD:

One should remember that, In a parliamentary democracy the executive is accountable to

Parliament. Allowing the government to call the Parliament to meet could be in conflict with this
principle.

Instead, Parliament should convene itself, if a certain number of MPs agree, so that it can effectively
exercise its oversight functions and address issues without delay.

There are various ways of doing this:

(A) Western Model: Year-around session with a calendar of sitting

 In countries such as the United States, the United Kingdom and Canada, Parliaments are in session
throughout the year.
 Thus, the five-year term of Parliament consists of five sessions of a year each.
 Calendar of sittings: At the beginning of the year, a calendar of sitting days is formalised and
legislative and other businesses are programmed in. This would help members and others plan
better for the whole year.
 Number of days: On average, the sitting days of these legislatures range between 100 days (as
with the US Congress) to 150 (with the British Parliament) days in a year.
 Implementing this in India would require some minor changes in rules such as permitting no-
confidence motions to be taken up multiple times in a session if a significant minority asks for it.
 Advantages of this model:
o One, it enables detailed planning of legislative and policy work all year round.

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o Second, it negates the need for enacting Ordinances (like the recent Ordinance that was
enacted to amend the Bankruptcy Law).
o Third, it enables accountability of government functioning by Parliament throughout the
year.

DO YOU KNOW?
In constituent assembly, some members were of the opinion that Parliament should be in session
throughout the year.
In 1955, Lok Sabha recommended a calendar of sittings for each session, the cabinet of Jawaharlal
Nehru agreed to the recommendation, but it was not implemented.

(B) Pakistan Model:

 Minimum no. of legislators calling a session: Another approach is allowing a significant minority
of members to call for a session. Pakistan’s Constitution requires a session of Parliament within
14 days if one-fourth of its membership demands one.
 Minimum no. of dates: It also states that Parliament should meet at least 130 days every year and
there should be at least three sessions.

CONCLUDING REMARK:

 The legitimacy of the government in a democracy is derived from constant scrutiny by elected
representatives.
 It is time to change the rules to ensure that

“politicking doesn’t interfere with law-making”

DEFECTION
On December 4, 2017 the Chairman of Rajya Sabha disqualified two MPs having
defected from their party.

Disqualification of JD(U) MPs:

 These members were elected on a Janata Dal (United) ticket.
 They were disqualified under the Tenth Schedule of the Constitution better known as the anti-
defection law.
 They were deemed to have ‘voluntarily given up their membership’ by engaging in anti-party
activities which included criticizing the party on public forums on multiple occasions, and
attending rallies organised by opposition parties in Bihar.
Other Recent cases of defection:
 In September 2017, 18 MLAs were disqualified by the Speaker of the Tamil Nadu Assembly under
the anti-defection law.
 In recent years, allegations of legislators defecting in violation of the anti-defection law have been
made in several other states including Andhra Pradesh, Arunachal Pradesh, Goa, Manipur,
Nagaland, Telangana and Uttarakhand.
In this background, we look into the anti-defection law.

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ANTI DEFECTION LAW

Key Facts
What is defection?
 Defection means when the legislator leaves the political party from which he/she was elected
and joins the other party.
Aaya Ram, Gaya ram:
 The need for an anti-defection law was first felt in the late 1960s.
 Of the 16 States that went to polls in 1967, Congress lost majority in eight and failed to form
the government in seven. Thus began the era of coalition governments.
 This was accompanied with the phenomenon of large scale political migrations.
 Within a brief span of 4 years (1967-71), there were 142 defections in Parliament and 1969
defections in State Assemblies across the country. Thirty-two governments collapsed and 212
defectors were rewarded with ministerial positions.
 Another Haryana legislator, Gaya Lal, defected thrice within a fortnight which led to the well
know terms ‘Aya Ram’ and ‘Gaya Ram’
Anti defection law:
 To curb this evil of defection, the Anti-Defection Law was passed in 1985 through the 52nd
Amendment to the Constitution
 It added the Tenth Schedule to the Indian Constitution i.e. A–102(2) and A–191(2).
 It deals with all 3 types of members
o Members elected from party’s ticket
o Independent MLA’s and
o Nominated members
Key provisions of 10th schedule:
(1) Grounds of defection for members:
 For members elected 4m a party ticket: If a member of a house belonging to a political party:
o Voluntarily gives up the membership of his political party, or
o Votes, or does not vote in the legislature, contrary to the directions of his political party
o However, if the member has taken prior permission, or is condoned by the party within
15 days from such voting or abstention, the member shall not be disqualified.
 For independent members: If an independent candidate joins a political party after the
election.
 For Nominated members: If a nominated member joins a party six months after he becomes
a member of the legislature.

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(2) Exceptions:
 Wrt Merger: A person shall not be disqualified if his original political party merges with another,
and he/she and other members of the old political party
o become members of the new political party, or
o do not accept the merger and opt to function as a separate group.
o This exception shall operate only if not less than two-thirds of the members of party in
the House have agreed to the merger.
 Wrt cross voting/abstention: In the following cases in cross vioting/abstention, the member
shall not be disqualified
o If the member has taken prior permission by the party
o Of the member is condoned by the party within 15 days from such voting or abstention.
(3) Power to disqualify:
 The Chairman or the Speaker of the House takes the decision to disqualify a member.
 If a complaint is received with respect to the defection of the Chairman or Speaker, a member
of the House elected by that House shall take the decision.

CRITICAL ASPECT
Advantages:

 Incidence of defection has reduced due to the enactment of anti-defection law.

 It provides stability to the government by preventing shifts of party allegiance.

 It also promotes party discipline.

 Ensures loyalty to party manifesto: It also ensures that the legislator doesn’t betrays the
people who elected him on basis of his party and party manifesto.

Loopholes in the law:

Law commission of India and various committees like “Halim Committee on anti-defection law
(1998)” found the following loopholes in law:

1) Voluntarily giving up the membership of his political party:

 It is still not clearly defined that what is the meaning of voluntarily giving up membership.

 SC in 1994 said that “voluntarily giving up membership” have a wider meaning and is not
synonymous with resignation.

 And thus a lot is left on speaker’s discretion.

 Recommendation: Clearly define the meaning of voluntarily giving up membership.

2) Voting contrary to the directions of his political party:

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 Even if the legislator has no malafide intentions then also he/she can’t disagree with parties’
directions.

 This has various flaws

o Restricts a legislator from voting in line with his conscience; Goes against the legislator’s
freedom of speech and expression.

o Suppresses healthy intra party debates.

o Restricts a legislator from voting in line with the interests of his electorate who elected
him/her.

o Impedes the accountability function of the legislature over the government

 E.g. while passing of Women’s reservation bill in Rajya Sabha in 2010, many legislators publicly
opposed the bill but due to whip’s fear they all voted in favor of bill.

 Main reason for bring anti – defection law was to curb defection, not dissent.

 Recommendation: Thus Whip should be restricted for only those votes that determine the
stability of the government i.e. (i) Confidence motion and (ii) Money bill.

3) Independent candidate joining a political party after the election:

 10th schedule says that they can’t join a party. But still without formally joining a party (which
requires paying party fee, filling a form) they become a kind of members of that party

 For example, during the tenure of BS Yeddyruppa of BJP as CM of Karnataka from 2008 – 2011,
many independents attended party meetings and even became part of Council of Ministers, but
were not disqualified as they didn’t joined the party formally.

 Recommendation: This provision is useless and redundant which should be removed.

4) Power of speaker to disqualify:

 Speaker he/she mainly belongs to ruling party. So his/her intentions could be

Malafide/politically motivated while disqualifying a legislator.

 Recommendation: The issue of disqualification should be decided by the President/ Governor

on the advice of the Election Commission (instead of by speaker).

Concluding Remark

 Thus we need a anti – defection law but we should modify it to make it in tune to present
scenario.

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SIMULTANEOUS ELECTIONS
In 2017 President of India and Prime Minister Modi strongly pitched their support for
holding simultaneous elections at public forums.

RELEVANT CONSTITUTIONAL PROVISIONS

Before discussing the issue in detail, it would be better to discuss the relevant constitutional provisions
in detail.
Term of House of People and State Legislative Assemblies:
 Article 83(2): Article 83(2) of the Constitution provides for a normal term of five years for the
House of People (Lok Sabha).
 Article 172(1): Article 172 (1) provides for similar tenure for State Legislative Assembly from the
date of its first sitting.
Pre-mature dissolution of Lok Sabha or State Assemblies:
Both Lok Sabha and State Assemblies do not have a fixed term and can be dissolved earlier than their
normal terms.
 Article 85(2)(b): Article 85 (2)(b) of the Constitution of India provides the President with the power
to dissolve Lok Sabha.
 Article 174(2)(b): Similar provision for dissolution of State Legislative Assemblies by the Governor
of State is provided under Article 174(2)(b).
 Article 356: In the event of a State being under President’s Rule as provided under Article 356, the
Legislative Assembly of the said State may be prematurely dissolved by the President.
DEFINING SIMULTANEOUS ELECTIONS
(Source: NITI Aayog discussion paper)
 The term “Simultaneous Elections” would broadly mean structuring the Indian election cycle in a
manner that elections to Lok Sabha and State Assemblies are synchronized together.
 In such a scenario, a voter would normally cast his/her vote for electing members of Lok Sabha
and State Assembly on a single day and at the same time.
Ideally simultaneous elections should imply that elections to all the three tiers of constitutional
institutions take place in a synchronized and co-ordinated fashion. However, elections to the third tier
institutions are directed and controlled by the State Election Commissions and their sheer numbers in
the country is significantly large. Thus it would be impractical and possibly impossible to synchronize
and align election schedules to the third tier with that of Lok Sabha and State Assembly elections.

TIMELINE OF DEBATE

Historical Context

 The concept of simultaneous elections is in-fact not new to the country.

 Post adoption of the Constitution, elections to Lok Sabha and all State Legislative Assemblies were
held simultaneously over the period 1951 till 1967 when the cycle of synchronized elections got
disrupted due to the premature dissolution of some Legislative Assemblies in 1968 and 1969, and
premature dissolution of Fourth Lok Sabha in 1970.
 The situation has continued so ever since.

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Present Status

 Indian polity is perennially in an election mode. Barring a few exceptional years within a normal
5 year tenure of the Lok Sabha, the country witnesses, on an average, elections to about 5-7 State
Assemblies every year.
 For example, besides Lok Sabha elections in 2014, polls to about 15 State Assemblies were held
during March 2014 – May 2016.
 Add elections to the third tier of Government (Panchayati Raj institutions / Municipal bodies in
rural and urban areas), bye-elections etc., and the number of elections in any given year would
increase substantially.
Committees

In the past various committees and bodies have examined the issue in detail. Some of them are:

 One Hundred Seventieth Report of law commission on electoral reforms, 1999 (Headed by Justice
B.P. Jeevan Reddy)
 Parliamentary Standing committee on Personnel, Public grievances, Law and justice in its 79th
report (submitted to the Parliament in December 2015)
 And most recently, NITI aayog submitted its discussion paper on this matter in April 2017.
ARGUMENTS IN FAVOUR OF SIMULTANEOUS ELECTIONS

The key adverse impacts that the existing electoral cycle leads to could be broadly categorized into
the following:

A. Impact on Governance
B. impact on Economy
C. impact on Internal Security
D. impact on Social Life
A. Impact on Governance:

1. Frequent elections leads to policy paralysis (Impact on development programs & governance
due to imposition of MCC:
a. The Model Code of Conduct (MCC) is enforced from the date of announcement of election
schedule by the Election Commission till the process of elections is completed.
b. During this period, except the routine administrative activities, other development
programs, welfare schemes, capital projects etc. remain largely suspended.
c. Frequent elections lead to imposition of MCC over prolonged periods of time which leads
to policy paralysis. In the year 2014, MCC was imposed for about 7 months (due to
general assembly elections).
d. Future scenario: According to a study by NITI Aayog (in April 2017), due to frequent
elections, MCC will be applicable for about 4 months till 2021. This means developmental
programs of state governments going to poll will get hit every year for about one-third of
the entire time available for implementing such projects and programs. This situation is
unwarranted.
2. Frequent elections distorts the “focus of policy making”:
a. Due to Frequent elections, Governments and political parties remain in perpetual
“campaigning” mode.

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b. Thus Short-sighted populist and “politically safe” measures are accorded higher priority
and “difficult” structural reforms which are required are ignored.
B. Impact on Economy:

1. Massive expenditures by Government:

a. The entire expenditure on actual conduct of elections to Lok Sabha is borne by
Government of India and such expenditure on conduct of election to State Legislatures by
the respective State Governments when such elections are held independently.
b. The cost to the Government of India for conducting Lok Sabha elections in 2014 was about
Rs. 3870 crores which will further rise in future.
c. But in case elections are held simultaneously, the cost of holding elections for Lok Sabha
and State Assemblies has been pegged at Rs. 4500 crore by the ECI.
d. Thus tax payers money will be saved which can be used other national development
priorities.
2. Massive expenditure by political party (corruption):
a. Besides the Government, candidates contesting elections and political parties also incur
huge expenditures so as to win elections.
b. According to S. Y. Quraishi, former Chief Election Commissioner,“ elections have become
the root cause of corruption in the country ….after winning elections, the politician-
bureaucrat nexus indulges in “recovering the investment” and that is where corruption
begins”.
c. Due to frequent elections, the expenditure is more and is the corruption. Holding
simultaneous elections can reduce it.
C. Impact on Internal Security:

 To ensure peaceful polls, Election Commission of India takes help of state police forces as well as
Central Armed Police Forces (CAPF) which are deployed throughout the elections.
o In the elections to the 16th Lok Sabha, the Election Commission deployed 1,350 Companies
of CAPFs.
 Such a situation is clearly unwarranted as it takes away a portion of such armed police force which
could otherwise be better deployed for other internal security purposes – the basic responsibilities
for which these forces were developed for.
D. Impact on Social Life:

1. Frequent elections disrupt normal public life: Holding of political rallies disrupts road traffic and
also leads to noise pollution. If simultaneous elections are held, this period of disruption would be
limited to a certain pre-determined period of time.
2. Frequent elections perpetuate caste, religion and communal issues across the country: S. Y.
Quarishi (former Chief Election Commissioner) has noted that “…elections are polarising events
which have accentuated casteism, communalism, corruption and crony capitalism. If the country
is perpetually on election mode, there is no respite from these evils. Holding simultaneous elections
would certainly help in this context”.
ARGUMENTS AGAINST SIMULTANEOUS ELECTIONS

Key political parties have questioned the idea of holding simultaneous elections on following grounds:

1. Operational feasibility / Do-ability: This point covers the following challenges –

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a. Initiating it: How would terms of Assemblies/Lok Sabha be synchronized for the first time?
Would it be feasible to extend or curtail the existing terms of some State Assemblies to
facilitate the above?
b. Sustaining it: If elections are held simultaneously, what would happen in case the ruling
party loses majority in between term, either in Lok Sabha or in State assemblies? Pre-
mature dissolution of state assembly can happen due to mis-use of A–356. Should the
term of Lok Sabha and assemblies be fixed?
c. Operational challenges: Is it practically feasible for the ECI to conduct elections at such a
massive scale – considering logistics, security and manpower resource requirements?
2. Impact on voter behavior: according to critiques, Indian voters are not mature / informed enough
to differentiate between the national and regional issues.
a. Marginalization of regional parties (undermines federalism): These critics have argued
that holding simultaneous elections may influence voter behavior in a manner that voters
would end up voting on national issues even for state elections. Effectively, this would
lead to larger national parties winning both State and Lok Sabha elections thereby
marginalizing regional parties which often represent the interests of local social and
economic groups.
b. Another section argues that State issues might impact voters’s in Lok Sabha elections. As
a result, voter behavior gets influenced and he/she may vote for the same political party,
which in most cases may be larger national parties.
3. Dilution of Accountability: Having to face electorate more than once every 5 year enhances the
accountability of politicians and keeps them on their toes and b) many jobs are created during
elections, boosting the economy at the grass-root levels”.
COUNTER – ARGUMENTS
1. Operational feasibility / Do-ability:
a. Sustaining it: Use of Article 356 has come down substantially after the decision of
Supreme Court in S.R. Bommai vs. Union of India.
2. Impact to voter Behaviour (undermining federalism):
a. In 2014, Along with elections to the 16th Lok Sabha, elections for constituting the State
Assemblies of 4 states were held. Those comprised: undivided Andhra Pradesh, Arunachal
Pradesh, Sikkim and Odisha.
b. Now despite the larger national trend in favour of BJP led NDA, the state of Odisha
voted for re-election of its incumbent State Government (led by Biju Janta Dal (BJD) – a
state party). The BJD also won the maximum Lok Sabha seats from the state – 20 out of
21 seats.
c. Similarly, Sikkim also voted for re-election of its incumbent State Government (led by
Sikkim Democratic Front (SDF) – a state party) which also won the Sikkim Lok Sabha seat.
d. Thus in the context of elections in India, voting is driven by a gamut of factors such as –
incumbency / anti-incumbency of Governments, organizational strengths, perception of
key leaders etc.
3. Dilution of Accountability: Our constitution through various ways ensures accountability of
legislatures –
a. Going back to the electorate for re-election, once a politician’s term is over.
b. Independent judicial oversight,
c. Accountability of the Council of Ministers to legislatures.

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CONCLUDING REMARK

Law commission in its 170th report remarked that the holding of a separate election to a Legislative
Assembly should be an exception and not the rule. The rule ought to be one election once in five years
for Lok Sabha and all the Legislative Assemblies

And as the President of India has remarked that “If political parties collectively think, we can change
it.... The Election Commission can also put in their idea and efforts on holding the polls together and
that will be highly beneficial”. Thus this idea should be implemented.

ELECTRONIC VOTING MACHINES (EVMs)

Leaders who lost the recent assembly elections — Mayawati, Harish Rawat among them
— have alleged voting machines were tampered with.

Now Delhi Chief Minister Arvind Kejriwal on Tuesday sought a paper ballot in the
upcoming municipal elections in Delhi, arguing that their are doubts over the functioning
of EVM’s.

HISTORY OF USE OF EVM’S

 Parliament, in 1988 inserted Section 61A in the Representation of the People (RP) Act, 1951 and
Rules, legitimising the use of EVMs.
 In November 1998, they were used on an experimental basis in 16 Assembly seats — 5 each in
Madhya Pradesh and Rajasthan, and 6 in Delhi. In the Lok Sabha elections of 2004, the entire
country voted using EVMs.
WHY WE SWITCHED TO EVMS FROM PAPER BALLOTS?
Paper ballots have inherent problems —

1. Their printing, storage and transportation involve huge expenditure;

2. Lakhs of ballot boxes are needed for each election, and there are logistics issues with their safe
storage between elections.
3. There were instances when the number of invalid votes (marked incorrectly by illiterate voters)
exceeded the winning margin.
DEBATE ON USE OF EVM’S

Against EVMs Arguments by ECI

Political parties have repeatedly questioned All political parties have criticised EVMs only
the functioning of EVMs. when they have lost elections.
Five days ahead of the Delhi Assembly election
results in February 2015, Arvind Kejriwal had
tweeted about possible tampering of EVMs. He
did not pursue his allegation after the same
EVMs registered a record mandate for his party,
which won 67 out of 70 seats.

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Germany and the Netherlands banned EVMs The size of the electorate at all these places is a
for lack of transparency. In the US, California fraction of the size in India — and the time,
and many other states have banned EVMs energy and expenses of going the same way
without a paper trail. here are not comparable.

In probably the biggest controversy around The EC denied the allegations arguing that –
EVMs, in 2010, three scientists claimed they  The machines could neither be
had developed a way to hack into the machines.
reprogrammed nor controlled by an
external device.
 The source code (for the EVM) is so
designed that it allows a voter to cast the
vote only once.
 The Commission has said that comparisons
between EVMs in India and abroad, where
they have failed, “are both misplaced and
misguided”. This is because “
 most of the systems used in other countries
are PC based and running on operating
systems. Hence, these could be vulnerable
to hacking. The EVM in India on the other
hand is a fully standalone machine without
being part of any network and with no
provision for any input
 The software in the EVM chip is one time
programmable and is burnt into the chip at
the time of manufacture. Nothing can be
written on the chip after manufacture.
Political parties have suggested that in order to Supreme Court has ordered the EC to use
increase transparency, the EC should explore VVPATs across all seats in the 2019 Lok Sabha
the possibility of introducing Voter Verified election.
Paper Audit Trail (VVPAT).
In this a voter immediately gets a printout of
her vote, which is then deposited in the ballot
box. So, every voter can see whether her vote
has been registered correctly.

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VOTER VERIFIABLE PAPER AUDIT TRAIL (VVPAT) UNITS

On July 6, 2017, The Supreme Court asked Election Commission that why they are
reluctant to use voter verifiable paper audit trail (VVPAT) units with electronic voting
machines for the Gujarat Assembly polls in 2017. It had asked the commission to give a
reply in four weeks.

What are VVPAT machines?

 It is an independent verification printer machine attached to electronic voting machines (EVMs)

to provide feedback to voters about their vote.
 Under this system, when a voter presses a button on the electronic voting machine to vote for a
candidate, a slip of paper bearing the name and symbol of the party will briefly appear for about
10 seconds, after which it will fall into a secure box, thus maintaining a paper trail of all the votes
cast.
What is the history of usage of VVPAT in Indian electoral system?

 2013: Supreme Court in Subramanian Swamy vs Election Commission of India asked the Election
Commission to use VVPAT facility in electronic voting machines (EVMs) in a phased manner.
Subsequently it was used in 2014 general elections.
 2017: in the aftermath of declaration of assembly election results in early 2017, opposition parties
like BSP, the AAP and the Congress alleged that the EVMs were tampered and demanded the
reintroduction of ballot papers.
 In this background in April 2017, the then Chief Election Commissioner Nasim Zaidi requested the
Union Law Ministry for urgent release of funds to facilitate procurement of VVPAT machines for
the 2019 Lok Sabha elections.
What are the benefits of VVPAT units?

In 2013, Supreme Court in Subramanian Swamy vs Election Commission of India argued that the
“paper trail is an indispensable requirement of free and fair elections” as voting is nothing but an act
of expression which has immense importance in democratic system". It is important because:

 Improves confidence of voters in EVMs: It will ensure the accuracy of the voting system as the
voter can cross-check its vote from the slip.
 Cross-checking by ECI: It will also help in "manual counting of votes in case of dispute. It is because
that paper trail will be deposited in a box which can cross – checked by ECI.
 Thus the confidence of the voters in the EVMs can be achieved.

ELECTION COMMISSION OR ELECTION OMMISSION?

Election Commission for India (ECI) recently came under criticism for not announcing the polling dates
for both Himachal Pradesh and Gujarat together.
About:

 On October 12, ECI announced that Himachal Pradesh would go to polls November 9, 2017.
 On November 2, the poll panel announced that the Gujarat Assembly elections will be held in two
phases on December 9 and 14.
 "Simultaneous counting of votes" in both states will take place on December 18.

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Questions raised?

But this decision was criticised by many including former Chief Election Commissioner S.Y. Quraishi.
Some of the ministers and political intellectuals claimed that this will act as a benefit for Bhartiya Janta
Party. They raised the following questions:
 Why are the polls being held for HP as it leaves little time for election campaigning?
 Why are the Gujarat polls being held so late? Why is there no simultaneous announcement and
holding of elections for the two states?
 Why Himachal Pradesh has to wait so late for the results.
Arguments in defence of decision:
 Himachal Pradesh: On November 15 every year, the Rohtang Pass is closed for winter, which
alienates parts of HP from the rest of the state, making elections there impossible. Thus HP
election announcement could not have waited even for a single more day.
 Gujarat flood relief work: Defending the EC’s decision, CEC Achal Kumar Jyoti, a former Gujarat-
cadre officer, stated that it doesn’t want the government employees engaged in flood relief work
to abandon their work for election duty.
 "Simultaneous counting of votes" is being done so that results of Himachal Pradesh polls don’t
influence the voters of Gujarat.
 Opposition parties levelled allegations against BJP for influencing ECI. BJP denied it and counter-
argued that these kind of events even happened during the congress-era.
Arguments against the decision:
 Critiques argued that the flood relief work is already over. Relief commissioner in Gujarat hasn’t
sent any letter to election commission. Also MCC doesn’t stop ongoing programs. It only puts a
bar on announcement of new sops and programs.
 Both Gujarat and HP have been going to polls together since 1998, except in 2002-03 due to the
Gujarat riots. Infact in 2007, the EC had advanced the HP election by as many as four months to
club it with Gujarat.
 It is against the spirit of simultaneous polls about which our PM has said from time to time.
 The argument of it even happened in congress-era doesn’t suit the ruling government which is led
by a party with a difference and aims at a congress-mukt bharat (congress-free government).
 Model code of conduct remains forced in Himachal Pradesh for more than two months which
prevents the state from executing new projects.
 Pre poll sops: it is alleged that the delay was deliberate to facilitate the Centre to make some pre-
poll sops to the people of Gujarat.
o In the space of 13 days, the state government announced projects worth about Rs 11,000
crore.
o PM Modi himself rolled out many projects — a smart city in Vadodara, inauguration of a
roll-on, roll-off ferry (which he erroneously claimed was India’s first) etc.
 Long waiting for the result: Since the results for both states will be declared on the same day,
December 18, Himachal Pradesh, which goes to the polls on November 9, will have to wait over a
month for a verdict.
Words of wisdom for ECI:

 Over the years, ECI has emerged as one of India’s finest and most trusted institutions. Hillary
Clinton has described the election commission of India is “global gold standard”.

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 In the recently covered held high-voltage Gujarat Rajya Sabha election it covered itself in glory by
asserting its well-established neutrality.
 But this controversy raises questions about its credibility and autonomy.
 It should remember that it is not only impartial, but also be seen as impartial. Otherwise the hard-
earned reputation of the EC’s independence would be in tatters, exposing Indian democracy to
disaster.

Recommendations:

 Period of MCC: It should not be remain in force for more than a month.
 Result declaration: Result should be declared with in the three days of polling.
 Autonomous ECI: Goswami Committee, Jeevan Reddy Committee and various other commissions
have suggested to evolve the appointment and removal criteria of ECs at par with the
appointment of Judges of SC.

“LARGEST SINGLE PARTY” vs “A COMBINATION

WITH MAJORITY SUPPORT”
BJP combine forms the government in Manipur and Goa Inspite of being the second largest party.

 Mohan Parrikar takes oath in Goa as CM.

 N. Biren Singh takes oath as Manipur CM.

Now the decision of Goa Governor Mridula Sinha to invite — and swear in — a government led by the
BJP despite the party having won four fewer seats than the Congress in the Assembly elections, has
reopened the debate on the need for a more structured and transparent system to deal with scenarios
arising out of fractured verdicts.

ARGUMENTS BY BJP

 BJP invoked the rule ‘a combination with majority support’ over ‘largest single party’.
 They argued that the Assembly elections in both the states produced an inconclusive verdict. In
this scenario, BJP managed to form an alliance first and presented to the Governor of majority of
MLAs. The Congress did not even submit a claim to the Governor as it didn’t had the support of
majority of MLAs.
 Even congress has invoked this rule in past to form congress or congress-backed government’s in
states. For example,
o In 2005, BJP won 30 out of 81 seats in Jharkhand, but still the Jharkhand Mukti Morcha
(JMM) leader Shri Shibu Soren, with the support of 17 of his own MLAs plus others was
invited to form the government.
o In 2002, in J&K, the National Conference had 28 MLAs but the Governor invited the
Peoples Democratic Party (PDP) and the Congress combinations of 15 + 21 MLAs to form
the government.

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 The Supreme Court’s Bommai judgment, while laying down the dictum that the floor test was the
best test for whether a Chief Minister enjoys majority support, did not make it clear as to who
should be given the first shot at government formation.
COUNTER-ARGUMENTS
 The above events are against Sarakaria Commission’s view guidelines which submitted its report
in 1988. According to sarkaria commission –
o The first shot at government formation should be allowed to the leader of the single party
having an absolute majority in the Assembly.
o In case no party had majority, the following order of preference could guide the Governor:
 leader of any pre-poll alliance of parties “formed prior to the elections”,
 followed by the leader of the “largest single party staking a claim to form the
government with the support of others, including ‘independents’”,
 followed by the leader of a “post-electoral coalition of parties, with all the
partners in the coalition joining the government” and,
 finally, the leader of a post-electoral alliance of parties, with some of the parties
in the alliance forming a government and the remaining parties, including
Independents, supporting the government from outside.
 The Justice Madan Mohan Punchhi Commission on Centre-State relations, which submitted its
report in 2007, made similar recommendations.
 The parties which are now supporting BJP did not fight the election as part of a coalition. In fact,
Goa Forward Party ran an anti-BJP campaign.
 Speed of claiming first cannot be the overriding or pressing consideration for the governor while
assessing a party’s claim to form government.
 Even earlier cases of Congress and its allies forming governments were disputed on grounds of
procedure and propriety.
SUPREME COURT INVITED BJP FOR FLOOR TEST

 Ruling on a petition filed by the Congress, the Supreme Court asked the BJP government in Goa to
prove its majority within 48 hours. But it was a half-measure.
 The court’s reluctance to uphold the principle of inviting the single largest party first and
therefore, to stay Parrikar’s swearing-in is controversial.
CONCLUDING REMARKS

 While the debate continues over whether Governor Mridula Sinha’s decision by ignoring the claim
of the leader of the Congress Legislature Party to be invited first to form the government and
prove his majority, the blame for the lack of clarity on the use of “discretionary powers” by
Governors lies mainly with the earlier governments.
 Earlier government’s failed to take the recommendations of the above mentioned Commissions
on Centre-State relations seriously and give them legislative shape, perhaps through amendments
to the Constitution.
 Also the First Administrative Reforms Commission (ARC) recommended to formulate guidelines
governing the use of discretionary powers by Governors. But this wasn’t also implemented.

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SECTION 126 (1) OF THE RPA, 1951

Both BJP and Congress have accused each other of violating the Model Code of Conduct
and Section 126 of the Representation of the People Act, 1951.
It is alleged that Rahul Gandhi (for giving Interview Ahead of Polls) and PM Modi (for doing
Roadshow After Casting Vote) have violated election norms during the Gujarat assembly
elections.
Violation by Rahul Gandhi?

On December 13, 2017 the Election Commission of India issued a show cause notice to Congress
President Rahul Gandhi for violating The Representation of the People Act (RPA), 1951.

According to ECI, Rahul Gandhi gave an interview to a Gujarati channel a day before the second phase
of the Gujarat polls (i.e. during the 48-hour period before polling), in which he talked about Gujarat
election. This is in violation of section 126(1)(b) of RPA, 1951.

Show-cause notice means an order seeking for explanation on an incident, misconduct, etc. and giving
reasons why action should not be taken against the party.

According to Section 126 (1) of the RPA, 1951 no person shall:

a) convene, hold, attend, join or address any public meeting or procession in connection with an
election; or
b) display to the public any election matter by means of cinematograph, television or other similar
apparatus; or
c) propagate any election matter to the public by holding, or by arranging the holding of, any
musical concert or any theatrical performance or any other entertainment or amusement with
a view to attracting the members of the public thereto, in any polling area during the period of
forty-eight hours ending with the hour fixed for the conclusion of the poll for any election in that
polling area.

Congress’ response

Violation by PM Modi?

In retaliation, the Congress accused BJP of using EC “as a tool for its political gains” and criticized them
for “double standards”.

They argued that after casting his vote, PM Modi did a roadshow in Ahmedabad, with people cheering
him as he passes showing off his inked finger.

This is alleged to be in violation of Election Commission’s Model Code of Conduct which says:

 “All parties and candidates shall avoid scrupulously all activities which are “corrupt practices”
and offences under the election law, such as bribing of voters, intimidation of voters,
impersonation of voters, canvassing within 100 meters of polling stations, holding public
meetings during the period of 48 hours ending with the hour fixed for the close of the poll, and
the transport and conveyance of voters to and from polling station.”
 “All political parties and candidates shall – not allow unnecessary crowd to be collected near the
camps set up by the political parties and candidates near the polling booths so as to avoid
Confrontation and tension among workers and sympathizers of the parties and the candidate.”

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Concluding remark:

 ECI should ensure that not only it is impartial, but is also seen to be impartial.
 Fair elections are the cornerstone of a democracy and all violators should be brought to justice by
the law. The phrase “all violators” holds utmost significance here.
 Thus the guardian of free and fair elections in the country should hold responsible all parties, for
violating elections norms.

ELECTION COMMISSION & CONTEMPT POWERS

Recently, the Election Commission of India (ECI) in a written proposal to the law ministry
has asked for power to punish for contempt which at present is available to judiciary
It has asked for extending the provisions of Contempt of Courts Act, 1971 to the EC and
its commissioners.

Background: Contempt power means the

power of public institutions to
 Recently there has been accusations of partisan functioning of ECI, punish persons who show
mainly from political parties that had lost in the recent elections. contempt for the process,
 ECI argues that to conduct free and fair elections, it’s orders, or proceedings of that
independence and credibility must be guarded. institution.

What are the arguments against granting contempt powers to ECI?

1. There is a basic difference between the ECIand the courts. Judges have a tradition of not
responding publicly to criticism, As Lord Denning observed in 1968, they “cannot enter into public
controversy”. However, ECI is responding publicly to criticism via media.
2. With the evolution of democratic practices, even then, the contempt power of the courts itself is
being increasingly questioned. Opinions vary from deleting them to using them occasionally.
3. Asking contempt powers on the ground that something had “scandalized” it— which is a vague
and subjective provision — should have no place in contempt law.
4. It is against right to freedom of expression as the power can be abused to curb even genuine
criticism.
5. Punishing criticism will cut feedback, which can be useful, for example, introduction of verifiable
paper trail is a result of criticism of EVM and ECI.
6. It can lead to domino effect. If today, ECI’s demand is accepted then tomorrow army and other
bodies can also make this demand.
7. This proposal of ECI was not accepted by Dinesh Goswami committee on electoral reforms (1990).
8. Apart from few exceptions like Pakistan, Iran, Liberia, Venezuela, no other credible democracy
(e.g. U.S., U.K, Canada etc.) have vested their electoral commissions with any contempt power.

Way ahead?
But ECI is right on one point that Public trust that takes years to build can come crashing down in some
moments if propaganda and rumors are not checked. Thus the “perception of impartiality and
independence of ECI” has to be protected. For achieving this, the solution is two-fold:
1. Instead of government, a collegium having members from different party and judiciary should
appoint the election commissioners.
2. Give ECI the power to punish the political parties (including de-registration) who indulge in willful
disobedience of the lawful orders, like non-submission of accounts and audit reports, not
conducting internal party elections, persistent violation of the model code, etc.

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CORPORATE DONATIONS RECEIVED BY POLITICAL PARTIES

Association for Democratic Reforms (ADR) has released a report on corporate donations
received by political parties.
KEY FINDINGS OF THE REPORT:

 Between financial year 2012-13 and 2015-16, the five national parties
received a total of ₹1,070 crores via voluntary contributions above
₹20,000. BSP did not receive any donation of above ₹20,000.
 Of this, 89% was from corporate and business houses.
 Of the five parties, BJP received nearly three times the combined
funding for other four national parties.
 Satya Electoral Trust was the top donor to top three parties with a
donation of ₹260.87 crore. The Trust was formed before the Electoral
Scheme was launched by the government in 2013.

Every year, political parties have to submit details of donations above

₹20,000 to the Election Commission.

ELECTORAL TRUSTS SCHEME, 2013

 The scheme provides that electoral trust is a company registered under section 25 of the
Companies Act, 1956.
 Their sole objective is to distribute 95% of contributions received by it to the political parties
registered under section 29A of the Representation of People Act, 1951, within the financial year
itself.
 This scheme was launched to bring transparency and sanity in the political party funding.

STATE FUNDING OF POLITICAL PARTIES

In July 2017, the outgoing Chief Election Commissioner (CEC) Nasim Zaidi, emphasised
on making political funding transparent.
In the past also the issue of political finance and State Funding has been examined by various
committees & commissions such as Dinesh Goswami Committee, Indrajeet Gupta Committee
Report, second administrative reforms commission, Law Commission etc (for their
recommendations refer annexure).

INTRODUCTION

 Need of political finance: Political Finance refers to

o Funds or resources involved in election campaign of candidate and political parties and
o The expenses of the political parties for political activity during the non-election period.
 Source of political finance: The resources for this purpose are
o either raised by the parties or the candidates on their own,
o or are provided by way of state funding.
 Type of state funding: The state funding is provided either directly or in indirect manner.
o Direct state funding: Direct state funding is given to political parties and /or candidates in
form of money, usually as bank transfer.
o Indirect state funding: Indirect state funding refers to transfer of resources by the state
or the government to a political party or a candidate for a monetary value in indirect way.

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 Present status of state funding of parties: At present, there is no direct state funding of parties
in India. However the parties enjoy certain benefits indirectly, such as:
o Providing free electoral rolls to the candidates and recognised political parties.
o Providing free air time to the recognised political parties on state owned media.
o Providing free space in state capitals for the office of the recognised political parties.
o Tax exemption on the income of the political parties.
ARGUMENTS IN FAVOUR OF STATE FUNDING OF ELECTIONS

1. To ensure economic inequality doesn’t transforms into political inequality:

a. Without state funding the parties and candidates raise their own funds, and gradually the
economical inequality in the society translates into political inequalities, as the poor and
weaker sections are gradually sidelined.
b. High cost of elections disturbs the level playing field, as all candidates or parties do not
have equal access to such funds.
2. Ensuring rule of law: The Big Money, used in non-transparent manner, may be black money or
tainted money and it undermines the rule of Law, as the elected representatives become captive
in the hands of those, who provide such funds. State funding can limit the influence of wealthy
people and rich mafias, thereby purifying the election process.
3. Corruption: According to S. Y. Quraishi, former Chief Election Commissioner,“ elections have
become the root cause of corruption in the country ….after winning elections, the politician-
bureaucrat nexus indulges in “recovering the investment” and that is where corruption begins”.
4. Shift from vote buying to programmatic politics: Vote buying is another manifestation of such
non-transparent use of Money in elections. State funding of elections can ensure that political
parties propagate their programme, thereby shifting their strategy from vote buying to
programmatic politics.
5. Transparency: State funding increases transparency inside the party and also in candidate finance,
as certain restrictions can be put along with state funding. State funding can help in curbing
corruption at high level in government.
6. Inner party democracy: Through state funding the demand for internal democracy in party,
women representations, representations of weaker section can be encouraged.
7. International experience:
a. The experience of USA, European countries and some countries in Asia (Japan, south
korea) shows that there is global increase in partial state funding in direct way.
b. Simultaneously, they have also enacted laws to regulate the political parties and put
several restrictions and norms for disclosure of financial information in public.
ARGUMENTS AGAINST STATE FUNDING OF ELECTIONS

1. Diversion from developmental activities: The tax payer’s money is diverted from developmental
activity like building schools, hospitals, roads etc. to the political parties and/or candidates for the
purpose of elections.
2. Forcing taxpayers to support a party/candidate: Through state funding of elections the tax payers
are forced to support even those political parties or candidates, whose view they do not subscribe
to.
3. Maintains status quo: State funding encourages status quo that keeps the established party or
candidate in power and makes it difficult for the new parties.

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4. Increases distance between citizens and party: State funding increases the distance between
political leaders and ordinary citizens as the parties do not depend on the citizens for mobilisation
of party fund.
RECOMMENDATIONS: WAY AHEAD

 State funding of elections is necessary to tackle corruption and to ensure a level playing field to
all candidates.
 Prerequisites for introducing state funding of elections: But any reform in state funding should
be preceded by following reforms to reduce the incentive raise money and abuse power:
o decriminalisation of politics,
o introduction of inner party democracy,
o Deregistration of Political Parties, which have not contested election in 10 years.
o electoral finance reform, transparency and audit mechanisms, and
o stricter implementation of anti-corruption laws.
 Also currently, a system of complete state funding of elections is not feasible given the economic
conditions and developmental problems of the country.
 Thus keeping that in mind the above issues, the existing system of giving indirect in-kind subsidies
instead of giving money via a National Election Fund, should continue.
 Expand the in-kind subsidy: The wording of Section 78B of the RPA permits the Central
Government, in consultation with the ECI, to supply certain items to the electors or the candidates
and this provision can be used to expand the in-kind subsidy to include free public meeting rooms,
certain printing costs, free postage etc.
ANNEXURE: REPORTS OF VARIOUS COMMITTEES ON POLITICAL FINANCE

Dinesh Goswami Committee, 1990

 The Goswami Committee recommended that state assistance only in kind not in cash should be
extended only to candidates set up by recognized political parties.
 Type of Assistance in kind: It recommended state assistance in kind in respect of (i) provision of
prescribed quantity of fuel or petrol to vehicles used by candidates; (ii) supply of additional copies
of electoral rolls; (iii) payment of hire charges for prescribed number of microphones used by
candidates; and (iv) distribution of voters’ identity slip.
Indrajeet Gupta Committee, 1998

 State subvention should be provided to political parties to ensure a level playing field.
 However for the present, only the part of the financial burden of political parties (in kind, not cash)
may be shifted to the State. Gradually, more and more of their expenses’ burden can be
progressively shifted to the State.
Law Commission, (170th report) 1999

 Total state funding is desirable, but on the condition that political parties are barred from raising
funds from any other source.
 It also held that only partial state funding was possible at the present time given the economic
conditions of the country.
 Pre-requites for introducing state funding: Before state funding of elections is attempted,
appropriate regulatory framework should be put in place with regard to political parties such as:

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o provisions ensuring internal democracy,

o internal structures and maintenance of accounts,
o their auditing and submission to Election Commission.
Venkatachaliah Committee, 2002

 Proposals for state funding should be deferred till these regulatory mechanisms for working of
political parties are firmly in position.
Second Administrative Reforms Commission, 2007

 A system for partial state funding should be introduced in order to reduce the scope of illegitimate
and unnecessary funding of expenditure for elections.
Law Commission 255th report, 2015

 Currently, a system of complete state funding of elections is not feasible given the economic
conditions and developmental problems of the country.
 Thus the existing system of giving indirect in-kind subsidies instead of giving money via a National
Election Fund, should continue.
 Expand the in-kind subsidy: The wording of Section 78B of the RPA permits the Central
Government, in consultation with the ECI, to supply certain items to the electors or the candidates
and this provision can be used to expand the in-kind subsidy to include free public meeting rooms,
certain printing costs, free postage etc.
 Prerequisites for introducing state funding of elections: Any reform in state funding should be
preceded by following reforms to reduce the incentive raise money and abuse power:
o decriminalisation of politics,
o introduction of inner party democracy,
o electoral finance reform, transparency and audit mechanisms, and
o stricter implementation of anti-corruption laws.

CAN ELECTORAL BONDS CLEANSE POLITICAL FUNDING?

In late July 2017, Union finance minister criticized the Election Commission of India (ECI) and
political parties for not suggesting improvements in electoral bond scheme (EBS).
BACKGROUND:

 EBS was announced in the Union Budget 2017-18.

 In July 2017, government finalized the draft norms of the scheme which will be consulted with ECI, RBI
and political parties.
FEATURES:

 Electoral Bond is a financial instrument for making donations to political parties.

 Each political party would have to open designated accounts for this purpose, with banks mandated
by the RBI.
 It bans cash donations of over Rs. 2,000/- to a political party from any individual. Amount more than it
can be donated to political parties only by cheque or digital mode by purchasing electoral bonds from
banks.
 The party can convert these bonds back into money via their bank accounts.
SIGNIFICANCE:

 It will lead to greater transparency and accountability in political funding, while preventing future
generation of black money as any payment over Rs. 2,000/- will be recorded by banks.

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VIEW OF SCEPTICS:
1. While the identity of the donor is captured, it is not revealed to the party or public. So transparency is
not enhanced for the voter.
2. During the budget, government amended the Companies Act, 2013 by removing limits on corporate
donations to political parties (earlier there was a cap of 7.5% of average three years’ profit that a
company can donate to a political party). It is of concern esp. when the identity of the recipient will be
kept a secret.
WAY AHEAD: Former Chief Election Commissioner SY Quraishi has suggested the followings:

 Setup National Electoral Fund: set up a National Electoral Fund to which all donors can openly
contribute without expressing any preference for any political party. The funds could then be allocated
to all registered political parties in proportion to the votes obtained. This will also address the donors’
concern for secrecy.
 Complete Ban on private donations: After ensuring public funding of political parties, private
donations to political parties must be totally banned.
 Conduct Regular Audit: And since public funds will be involved, there must be an annual audit by the
Comptroller and auditor General of India or an auditor approved by it.

ALL-INDIA JUDICIAL SERVICE (AIJS)

Union ministry of Law and Justice released a paper which contains the findings of its
consultations with high courts on the proposal of having an All-India judicial service
(AIJS) for the recruitment into lower judiciary.
KEY FINDINGS:

 Only two High Courts (of Sikkim & Tripura) have supported the proposal.
 Nine have opposed the proposal in toto.
 Eight have suggested changes in the age at the induction level, qualifications, training and quota
of vacancies to filled through the proposed service.

DEBATE OVER CREATION OF AIJS:

 All-India Judicial Service (AJIS) is a proposed judicial service in India.

 Background:
o Original constitution didn’t provide for the creation of an AIJS.
o After the Swaran Singh Committee’s recommendations in 1976, Article 312 was modified
by the 42nd constitution (amendment) act in 1977 to provide for an AIJS.
o Law commission in its 116th report suggested the Direct recruitment of judges from the
entry level onwards would be through an open competition and this would be handled by
an independent and impartial agency.
 Arguments in favour of All India Judicial Services:
o If designed with the right incentives of pay, promotion and career progression, it could
potentially become an attractive employment avenue for bright young law graduates.
o Existing system has led to shortage of judges as today the subordinate judiciary depends
entirely on state recruitment.
o Judicial service will make the judiciary more accountable, more professional, and
arguably, also more equitable.
o In France, the judiciary is operated by a career judicial service.

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o Our constitution provides for its creation. Law Commission of India (LCI) in its various
reports (14th, 77th and 116th) and Supreme Court (in two of its judgments in 1991 and 1993)
have recommended its creation.
 But some states and High Courts have opposed it on the grounds that:
o Judicial efficiency would be affected by lack of knowledge of regional languages.
o It will curtail the avenues for promotion for those who had already entered through the
state services
o It amounts to interference with Judiciary’s independence as it would lead to erosion of
the control of the high courts over the subordinate judiciary.
 Way ahead: As the pros weighs over the cons, so The prime minister and Supreme court should
take a lead in its creation by consultations with high courts and others to remove their
apprehensions.

LAW COMMISSION REPORT NO.272 TRIBUNALS

The Law Commission of India (LCI) has submitted its 272nd report titled “Assessment of
Statutory Frameworks of Tribunals in India”.
ETYMOLOGY

 The term ‘Tribunal’ is derived from the word ‘Tribunes’, which means ‘Magistrates of the Classical
Roman Republic’.
WHAT IS TRIBUNAL?

 ‘Tribunal’ is an administrative body established for the purpose of discharging quasi-judicial

duties.
 They are setup to adjudicate disputes related to specified matters.
 It is neither a Court nor an executive body. It stands somewhere midway between them.

TIMELINE
EVOLUTION OF TRIBUNALS in INDIA:
 History of tribunals in India dates back to the year 1941, when first Tribunal was established in
the form of Income-Tax Appellate Tribunal.
 Constitution (Forty-second Amendment) Act, 1976: Based on the recommendations of the
Swaran Singh Committee, Part XIV-A was added by the Constitution (Forty-second Amendment)
Act, 1976, titled as ‘Tribunals’ which provided for the establishment of
o ‘Administrative
Tribunals’ under 42nd AA introduced Part XIV-A
Article 323-A: It gives
exclusive power to Art 323-A Art 323-B
the Parliament for
establishing Administrative tribunals Tribunals for other matters
tribunals.
o ‘Tribunals for other
matters’ under Article 323-B: It gives power to the concerned State Legislature to
constitute Tribunals for the respective subjects specified therein.
 Administrative Tribunals Act, 1985: It provides for the establishment of three kinds of
administrative Tribunals: (a) The Central Administrative Tribunal (CAT), State Administrative
Tribunals (SAT) and Joint Administrative Tribunals (JAT).

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 Tribunalization of India: Now tribunals have replaced high courts for disputes under the
Companies Act, Competition Act, SEBI Act, Electricity Act, and Consumer Protection Act among
others. The number of tribunals increased to 36, in 2016.
 The Finance Act, 2017: The Finance Act, 2017 has merged eight tribunals on the ground of
functional similarity and has given the power to the Government to appoint and remove the
members.
Background to LCI report:
 Gujarat Urja Vikas Nigam Ltd v. Essar Power Ltd (2016): Earlier, the Supreme Court, in the case
of Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd., had directed the LCI to examine the
functioning of tribunals.
 Scope: The report examined issues related to:
o Constitution of tribunals,
o Appointment of the chairman and members of tribunals, and
o Service conditions of the members of tribunals.
 In October 2017, LCI submitted its report.

NEED OF TRIBUNALS:

 Due to growing commercial ventures and welfare activities by the Government in different
sectors, Tribunals have been established in almost all the countries for the reason that they are
o cheaper (cost-effective),
o accessible,
o free from technicalities & expeditious (as they follow the principles of natural justice,
instead of Indian Evidence Act, 1872 that is commonly followed in Courts)
o efficient as they are manned by experts having detailed knowledge of their particular
subject.
 Lack of tribunals leads crisis of delays and backlogs in the administration of justice. One should
remember that Right to Fair and Speedy Trial is very much a part of right to life and personal
liberty, a fundamental right guaranteed under Article 21 of the Constitution of India

CRITICISM OF THEIR FUNCTIONING:

 Pendency in Tribunals (Source: Law commission of India report no. 272):

o The top five central tribunals in the country have a combined backlog of over 3.50 lakh
cases with the Income Tax Appellate Tribunal alone having over 91,000 cases.
o Thus the objective of setting them up has not been achieved.

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 Selection of members:
o The Tribunal Rules, 2017 gives the Central government the power to “make rules for
appointment, removal and other conditions of service” for judges appointed to tribunals.
o This is against the principles of independence of tribunals and separation of powers as
government is also a litigant in many cases.
o Expertise: Further, when retired high court judges invariably preside over every tribunal,
the justification of expert adjudication by tribunals disappears.
 Uniformity in service conditions:
o Currently there is no uniformity in the age of retirement of tribunal members.
o It is despite the fact that Supreme Court has held that the as Tribunals are substitutes of
the High Courts, thus service condition should be same.
 Appeal system:
o Tribunals were established to reduce the burden on courts.
o But as the decisions of appellate tribunals are regularly appealed before High Courts, the
purpose of establishing tribunals gets defeated.
 Accessibility (benches of tribunals):
o Tribunals are also not as accessible as high courts.
o E.g. A shareholder in Northeast would have to travel to the Securities Appellate Tribunal
(SAT) in Mumbai to challenge any order by the SEBI. This makes justice expensive.
RECOMMENDATIONS OF LAW COMMISSION:

1. Selection of members:
a. To ensure impartial selection of members of tribunals, involvement of government
agencies should be minimal
b. They should be appointed by a selection committee headed by the Chief Justice of India
or a sitting judge of the Supreme Court. It should have only two nominees of the central
government.
2. Uniformity in Service Conditions:
a. There should be uniformity in the appointment, tenure, and service conditions for the
members of tribunals.
b. To ensure this, the function of monitoring their working should be transferred to a single
nodal agency, set up under the Ministry of Law and Justice.
3. Appeal system:
a. Appeals against a tribunal’s order should first lie before the appellate tribunal setup by
that act. Only when appellate tribunals don’t exist, should the appeal lie before a High
Court.
b. Moreover, a party aggrieved by an appellate tribunal’s decision can approach Supreme
Court only on the grounds of public or national importance.
4. Accessibility (Benches of tribunals):
a. To ensure access to justice by people across geographical areas, Tribunals should have
benches in different parts of the country.
b. These benches should be located where High Courts are situated.

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LAW COMMISSION REPORT–266

THE ADVOCATES (AMENDMENT) BILL, 2017
The Bar Council of India (BCI) said that lawyers across the country would burn copies of
The Advocates (Amendment) Bill, 2017, as proposed by the Law Commission report 266.

They have termed it as an attempt to take away the autonomy of all the bar councils
and associations.

LAW COMMISSION’S REPORT – 266?

 SC verdict in Mahipal Singh Rana v. State of UP, 2016? In the background of declining standards
of professionalism amongst legal practitioners, Supreme Court in this verdict directed the Law
Commission of India to
o revisit the provisions relating to regulation of disciplinary control over lawyers under the
Advocates Act, 1961 and
o recommend appropriate amendments.
 When was the report submitted?
o In this background, in march 2017, the Law Commission submitted its Report No.266 titled
The Advocates Act, 1961 (Regulation of Legal Profession), to the Central Government.
 Recommendations? The 266th Law Commission report has recommended comprehensive
amendments in the Advocates Act. The Commission also submitted a draft of Advocate
(Amendment) Bill, 2017. Key recommendations are:
o Inclusion of non-advocate members on state Bar Councils and the BCI, as well
o Providing for the registration and regulation of law firms and foreign lawyers,
o It declares strikes by lawyers unlawful.
 Some of the reasons sighted by lawyers to strike in the past five years are Kavi
sammelan, shraadh, heavy rains etc.
 Strikes have arrested judicial work. For example, In Tamil Nadu, subordinate
courts work 220 days a year between 2011 and 2016.
o Defines the term ‘misconduct’ and provides clear penalties for professional misconduct,
o Increases the accountability by setting up grievance redressal mechanisms for litigants to
complain against advocates.
SOME CRITICAL OBSERVATIONS?

1. Supreme court has on numerous occasions has criticized individual lawyers and BCI, for its failure
to impose professional standards.
2. This and earlier instances shows that BCI is against any efforts at discussing reform for improving
the professional standards of the legal profession.
3. At no point has the BCI has presented a detailed reasoning for disagreement. Instead they use
ambiguous phrases like ‘independence of the Bar’ and ‘safeguarding the legal profession’.
4. Way ahead? It is crucial for the Bar to appreciate the reformative exercise blindly and engage with
the policy-makers to come out with a comprehensive set of amendments.
Bar council of India?

 Type of body? Statutory; it was established under the section 4 of advocates Act 1961

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 Formed in? 1961.

 Objectives? Regulating the legal practice and legal education in India.
 Membership? Its members are elected from amongst the lawyers in India.
 Key functions?
o Prescribing standards of professional conduct and etiquettes,
o Exercising disciplinary jurisdiction over the bar,
o Setting standards for legal education and
o Granting recognition to Universities whose degree in law shall be a qualification for
enrolment as an advocate.

CHIEF JUSTICE OF INDIA (CJI): SHOULD THERE BE

A FIXED TENURE FOR CJI?
Justice Dipak Misra became the 45th CJI with effect from August 28, 2017, after the
current CJI, Justice J.S. Khehar retires on August 27, 2017. He will have a tenure of about
14 months till October 2, 2018.
 Indian constitution doesn’t provide for a fixed tenure for CJI. Once appointed, the Chief Justice
remains in office until the age of 65 years. Article 124(4) of the Constitution provides that a SC
Judge including CJI can be moved only through a process of impeachment by Parliament
 Average tenure of CJI:
o In last twenty years (since 1997), seventeen Chief Justices of Supreme Court have been
appointed and out of those only three had tenures of more than two years.
o Many of them had tenure of even less than one year. One former CJI (Justice S. Rajendra
Babu) had tenure of less than a month.
o Similarly, Chief Justice of High Courts in most cases are appointed for less than two years
as some these are also elevated to the Bench of Supreme Court.
 Debate on the present system: Some people argue that long tenure won’t change much as seen
in the past (one CJI even had a tenure of 7 years) where CJs continued to focus on judicial work
while ignoring administrative work and might lead to "arbitrariness".
o But the dominant view is that a short tenure does not provide Chief Justice adequate time
to implement and sustain any major judicial reform.
o It is also demoralizing and demotivating when CJs are not in a position long enough to see
the fruits of their efforts, which could be source of enormous satisfaction to them.
o Stability of tenure was one of the 14 administrative principles developed by Henri Fayol
as he believed that it takes time to develop the skills necessary to perform effectively in a
particular situation.
 Law commission’s recommendation:
o In this background, in 2014, law commission recommended that the CJI should get a fixed
tenure of two years in case their tenure is less than two years.
o This step should be implemented from August 26, 2022 after the junior-most judge
currently serving in the Supreme Court, and who is slated to be CJI, retires.

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CONTEMPT OF COURT
It was in news for two controversies against justice C.S. Karnan and against Vijay
Mallya.

AGAINST JUSTICE C.S. KARNAN

 What has happened?

o A seven-judge Constitution Bench of the SC sentenced Justice C.S. Karnan (Calcutta High
Court sitting judge), to six months imprisonment for “contempt of court, judiciary and
judicial process of the gravest nature.”
o While announcing the verdict, SC observed that “All are equal in the eyes of the law and
no distinction needs to be made between a common man and judge or between a sitting
judge and retired judge.”
 What did the court told media about statements made by Justice karnan?
o The court ordered the electronic and print media not to report any statements made by
Justice Karnan.
o As a court of record under Article 129 of the Constitution, the Supreme Court is endowed
with the authority to order a ban on such publication or airing of contemptuous material
in the media.
 In what background he is punished?
o January 2017: Justice Karnan named 20 sitting and retired Supreme Court and High Court
judges of being corrupt in an Open letter to the prime minister.
o May 2017: He issued an order sentencing eight Supreme Court judges to five years of
“rigorous imprisonment”.
AGAINST VIJAY MALLYA

 What has happened? Supreme Court of India found Vijay Mallya guilty of contempt of court, and
has summoned him to appear on 10 July.
 In what background SC passed this verdict? It was issued on the ground of disobeying the court’s
order to come clean about his assets and not disclosing a sum of $40 million (Rs. 600 crore) he
received from a British liquor major following his resignation as Chairman of United Spirits Limited
in February 2016.
CONTEMPT OF COURT

 What is the meaning of contempt of court? It means any behavior or wrongdoing that conflicts
with or challenges the authority, integrity, and superiority of the court.
 Which constitutional provisions are related to contempt of court? Following 3 articles of our
constitution are related to contemt of court.
A – 19(2) A–19(2) provides allows the state to impose reasonable restriction on
freedom of expression on many grounds and one of it is contempt of court.

A –129 It provides for Supreme Court to be a court of records

This article explicitly gives SC the power to punish someone for their
contempt.

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A–215 It provides for High Court to be a court of records

This article explicitly gives HC the power to punish someone for their
contempt.

 Do Subordinate courts have power to prosecute a person for contempt of court?

o No. Subordinate courts have no power to prosecute a person for contempt of court.
o But High courts can take cognizance of contempt committed against lower court. I.E. if a
contempt is done by a person belonging to subordinate court then subordinate court will
send a reference matter to the high court.
 What are the salient features of Contempt of court 1971 act?
o Now contempt of court 1971 act was passed on recommendations of Sanyal committee.
It defined what is contempt, punishment for contempt etc.
o Types: According to it, there are two types of contempt of court
1 Civil  It broadly means disobeying court orders.
contempt  To be specific it means willful disobedience to any
judgment, decree, direction, order, writ or other process of
a court.
2 Criminal Acc. to act criminal contempt includes any act which
contempt
1. Scandalizes or tends to scandalize, or lowers or tends to
lower the authority of, any court,

o (it is the most controversial)

2. Prejudices, or interferes or tends to interfere with the due

course of any judicial proceeding or

3. Interferes or tends to interfere with, or obstructs or tends

to obstruct, the administration of justice in any other
manner.

o What is NOT contempt? The following below doesn’t come under contempt of court –
 Innocent publication and distribution of matter.
 Fair and accurate reporting of judicial proceedings
 Fair criticism of judicial act is not contempt.
o What is the Punishment for contempt of court?
 Simple imprisonment for a maximum term of upto 6 months and/or
 Fine.

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LAW COMMISSION’S 268TH REPORT ON BAIL REFORMS

The 21st law commission of India, headed by Justice BS Chauhan submitted its 268th
report titled ‘‘Amendments to Criminal Procedure Code, 1973 – Provisions relating to
Bail’ in May 2017.
What is bail?
 The Code of Criminal Procedure 1973 (Cr.P.C.) does not define the term “bail” although offences
are classified as bailable and non-bailable.
 Bailable offence: These are less serious offences and any person accused of committing these is
entitled to be released on bail as soon as s/he is willing to furnish bail.
 Non-Bailable offences: These are serious offences. When accused of committing non-bailable
offences, a person can only be released on bail by the court if it is satisfied that the person shall
attend the court to stand trial; will not tamper with evidence or influence witnesses or obstruct
police investigation in any manner; will not commit any other offence or hinder the interest of
justice.

What are the key observations made in this report?

 The present system of bail in India is “inefficient’ and ‘inadequate’ to accomplish its purpose.
 It has become the norm for the rich and powerful to get bail with ease, while others languish in
prison. The principle of “bail is the norm and jail the exception” is limited in its application to the
powerful and affluent only.
 Inconsistency in the grant of bail is one the of main reason that 67% of the current prison
population is made up of undertrials.
 Even when given bail, most of the prisoners remain in prison because they are unable to afford
bail bonds or provide sureties.

What are the key recommendations of the report?

 Avoid needless arrest: Police should avoid needless arrests and magistrates should avoid
mechanical remand orders.
 Fair and evidence-based bail:
o Those administering criminal justice should ensure that that bail practices are “fair and
evidence-based”.
o Decisions about custody or release should not be influenced by factors such as gender,
race, ethnicity, financial conditions or social status.
 Inform about the bail: When a person is arrested without a warrant the arresting officer should
inform the person about the available legal remedies including applying for bail. Such advice
should be given in the language that person understands and in an oral and written form.
 Speed up the bail process: Bail applications should be decided by subordinate courts within a
week. High courts should frame the rules accordingly.
 Release of under-trials: Amend the bail provisions under Section 436A of the CrPC to ensure early
release of undertrials.
o For offences with punishments up to seven years: Those who had completed one-third
of the maximum sentence for offences up to seven years should be released.

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o For offences with punishments more than seven years: Those who were awaiting trial
for offences punishable with imprisonment of more than seven years should be let out on
bail if they had completed half their sentence.
 Issue of non-payment of surety by poor people:
o In case an accused is granted bail but is not able to furnish sureties within 30 days (as he
is poor) and moves an application for varying the bail conditions, the court should hear
the case accordingly.
o If the investigating officer founds that he is not in a position to pay surety then that person
should be allowed bail without payment of surety.
 Bail in economic offences: Courts should not opt for a “liberal approach” while deciding granting
of bail in cases of economic offences.
What is the view of legal experts on these the recommendation made in the 268th report?
 Legal experts have welcomes the suggested reforms of India’s dysfunctional criminal justice
system.
 Providing relief to undertrials is not only be a humane move, but it will also reform present system
of long periods of incarceration for alleged petty crimes which give rise to hardened criminals.
 So government should accept the recommendations. But we should also keep in mind what the
law commission stated: “Bail law reform is not the panacea for all problems of the criminal justice
system like overcrowded prisons or unjust incarceration of the poor. The ultimate solution lies in
expediting the trial process.”

UNDER-TRIAL PRISONERS
In May 2017, law commission released its 268th report titled ‘‘Amendments to Criminal
Procedure Code, 1973 – Provisions relating to Bail’
In this report it made some recommendations to ensure early release of under-trials.

INTRODUCTION TO UNDER-TRIALS

 Who are they? The term ‘Under-trial’ denotes an unconvicted prisoner i.e. one who has been
detained in prison during the period of investigation, inquiry or trial for the offence s/he is accused
to have committed.
 How many are there in India? According to The ‘Prison Statistics India 2015’ report, which was
released by the National Crime Records Bureau (NCRB) in October 2016, Sixty-seven per cent
(two-thirds)of the people in Indian jails are undertrials which amounts to over 200,000 under-trial
prisoners.
 What is the social composition of these under-trials? Releasing under-trails is also a question of
social equity. Over 70 per cent of under-trials are illiterate, semi-literate or belong to socially
marginalized groups.
 For how long they remain in jails?
o The National Crime Records Bureau of the Government of India have reported that
thousands of under-trials had been incarcerated for a period of five years or more.
o In many cases their “stay in prison has exceeded the maximum sentence for the crime”
which they had committed.
 Most of them are convicted for petty offences.

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WHAT IS THE REASON FOR SO MANY UNDER-TRIALS?

1. Indiscriminate arrests: The power of the police to arrest people is very wide and they arrest
people even when they cooperate with the investigation and are not likely to evade trial. This
results in unnecessary detentions. As the Law Commission in its 268th report remarked that Over
60 per cent of arrests are unnecessary.
2. Failure to pay Bail Bond/Surety: Right to bail is denied even in genuine cases due to inability of
prisoners to pay the bail amount as many of them are poor
3. Slow investigation by police: Investigation by police is slow due to shortage of police personnel
and no separation between investigative and law & order functions.
4. Slow trials: The Right to Speedy Trial, as recognized by the Supreme Court in Khatoon vs. Home
Secretary, Bihar is violated due to protracted delays. This delay is due to various reasons such as:
a. Grossly inadequate number of judges and prosecutors.
b. “Remands being extended mechanically” by the presiding judge due to lack of time and
patience
5. Lack of use of provisions: Even though the provisions to avoid unnecessary detention of prisoners
have been in existence for years, they are not implemented because of the following reasons:
a. Most prisoners are not only unaware of their right to seek release but also too poor to
furnish surety.
b. Lack of sympathy by the administration
6. Failure of Legal aid schemes: Infective implementation of legal aid schemes due to shortage of
lawyers. This violates the Supreme Court judgment which held, legal aid to a poor is a
constitutional mandate not only by virtue of Article 39A but also Articles 14, 19, 21 which cannot
be denied by the government.
7. Lack of coordination between the Centre, Judiciary & State Governments in solving the problems.

WHAT ARE THE PROBLEMS DUE TO LARGE NUMBER OF UNDER-TRIALS? WHY IS THE INDIA
ADMINISTRATION CRITICIZED?

1. Criminalizing effect on prison:

a. With hardened criminals around due to absence of scientific classification methods, first-
time and young offenders convicted for petty offenders often become full fledged and
hardcore criminals.
b. It is often quoted that, “Prisons are Universities of crime where people go in as under-
graduates and come out with PhDs. in crime.”
2. Prison violence:
a. Prisons are often dangerous places where group violence and mishandling by police is
common. Meek and first time offenders are tortured and made to do all the menial tasks.
b. The worst form of Prison violence was witnessed in “Khatri v. State of Bihar” where the
police had blinded 80 suspected criminals by puncturing their eyes by needles and
dousing them by acid.
c. All this violates the Minimum Rules for Treatment of Prisoners.
3. Health problems:
a. Due to large number of under-trials, prisons are overcrowded lacking safe and healthy
conditions. Thus communicable diseases spread easily.

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b. Prolonged incarceration also leads to a mental breakdown.

c. And to escape the long, bored, depressed reality they often get into drug abuse.
4. Effect on the families of prisoners (social stigmatization):
a. Due to Long absence of the main bread winner, the family is many a time forced into
destitution.
b. This is apart from the social stigmatization that they face.
c. All these circumstances propel the children towards delinquency and exploitation by
others.
5. Overcrowding of jail/jail expenditure: all this leads to overcrowding of jail and increased jail
expenditure.
6. This is also against the principle of innocent till proven guilty.
WHAT IS THE WAY AHEAD? WHAT SHOULD BE DONE TO SOLVE THIS PROBLEM?

1. Reduce indiscriminate arrests:

a. Law commission in it’s 268th report recommended that Police should avoid needless
arrests and magistrates should avoid mechanical remand orders.
b. Implement Code of Criminal Procedure (Amendment) Bill 2006:
i. Implement Code of Criminal Procedure (Amendment) Bill 2006 which was passed
by parliament in 2008 and came into effect in 2010.
ii. It limits the powers of arrest by police. It also has a provision that in certain cases,
the police can also issue a "notice of arrest" rather than arresting a person.
c. Widen the Compoundable offences: The class of Compoundable offences under the IPC
and other laws should be widened. Compoundable offences are those offences where, the
complainant (one who has filed the case, i.e. the victim), enter into a compromise, and
agrees to have the charges dropped against the accused.
d. Send them to correctional home: Alternatives to imprisonment should be tried out and
incorporated in the IPC. Under trials charged with petty crimes can be put in reformative
homes instead of prison and asked to do community service till the time they are released
on bail. Elementary education facilities must be granted to those under trials who are
uneducated and illiterate.
2. Bail bond:
a. Inform about the bail: Law commission in it’s 268th report recommended that when a
person is arrested without a warrant the arresting officer should inform the person about
the available legal remedies including applying for bail.
b. Speed up the bail process: Law commission in it’s 268th report recommended that Bail
applications should be decided by subordinate courts within a week.
c. Freeing without paying of surety: Law commission in it’s 268th report recommended that
If the investigating officer founds that the under-trial is not in a position to pay surety then
that person should be allowed bail without payment of surety.
d. A portion of the funds transferred to the Panchayat for developmental work should be set
aside to meet the bail amount for under trials belonging to the particular panchayat /
block.
3. Release of under-trials: Law commission in it’s 268th report recommended that the bail provisions
under Section 436A of the CrPC should be amended to ensure early release of under-trials.

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a. For offences with punishments up to seven years: Those who had completed one-third
of the maximum sentence for offences up to seven years should be released.
b. For offences with punishments more than seven years: Those who were awaiting trial
for offences punishable with imprisonment of more than seven years should be let out on
bail if they had completed half their sentence.
4. Speed-up investigation: For ensuring that police speeds up the investigation of under-trails,
following steps should be taken:
a. Strict implementation of Section 167 of the CrPC: Section 167 Cr.P.C. lays down the
maximum period within which the police investigation must be completed and a
chargesheet filed before the court. This period is
i. 90 days for offences punishable with death, life imprisonment or imprisonment
for a term of not less than ten years, and
ii. 60 days for all other offences.
b. Strict implementation of Provisions of Section 167 of the CrPC which sets a time limit for
police investigation in case of accused under-trial prisoners.
c. Separate law & order and investigative functions of police so that they can give detailed
focus on investigation.
5. Speed up trials:
a. There should be an immediate increase in the number of judges and magistrates. It
should be at least 107 judges per million of the Indian population.
b. Automatic extension of remands has to stop which are given merely for the sake of the
convenience of the authorities.
c. Video conferencing between jails and courts should be encouraged
d. Hold Special Courts in Jails for prisoners involved in petty offences.
6. Scientific classification of prisoners: There should be a proper and scientific classification of
prisoners to ensure that under trial prisoners are kept away from convicted prisoners.
7. Compensate the victim: In case of violation of any fundamental right of the prisoner in the prison,
the state should give adequate compensation to the victim.

MOTIVATED PUBLIC INTEREST LITIGATION (PIL)

The Supreme Court imposed a cost of Rs 10 lakh each on two persons for filing a
"motivated" petition.
ABOUT THE RECENT DEVELOPMENT:

 The two petitioners challenged the practise of recommending to the President, the name of
successor by the incumbent Chief Justice of India. They did not allege anything in their plea against
the CJI designate.
 It was done to deter other people from filing such pleas.

ABOUT PIL:

 PIL can be defined as litigation that seeks to protect and promote public interest at large.
 the concept of PIL ooriginated in USA where it is called as social action litigation. In India, the
concept of PIL was propounded by the SC in the judge’s transfer case in 1982.

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 It can be filed by any person or organization which is publicly spirited. Thus the principle of LOCUS
STANDI does not apply in case of PIL.
 Significance:
o It has forced the executive and legislature to discharge their constitutional obligations
towards the people
o It has increased the scope of the Fundamental Right’s. Many of the inferred rights that
have been extended to individuals have been done by the court primarily through PIL.
o it has greatly increased the awareness level among the people both in terms of the 1)
rights enjoyed by the people and 2) role of judiciary in protecting the rights.
o It has played an important role in empowering civil society (esp. environment-based) who
have used PIL against executive and legislature.
 Criticism:
o Instead of promoting public interest, many people are filing frivolous petitions for the sake
of promoting their own private interests or for seeking publicity. Thus it is also called as
private interest litigation and publicity interest litigations.
o All this has interfered with normal judicial functioning of courts as PIL has led to
accumulation of large number of pending cases.
 To counter frivolous petitions, SC has taken following steps
o Courts have started appointing screening committees to scrutinize PIL that are filed and
submit a report to the court on merits of the petition.
o Court has warned that it may impose exemplary penalty including the compensation if it
while scrutinizing it finds the petition filed is frivolous.

B.N. SRIKRISHNA COMMITTEE ON ARBITRATION

Recently, High Level Committee on Arbitration (under the Chairmanship of Justice
B.N.Srikrishna, Retired Supreme Court Judge) submitted its report in August, 2017.
Background: It was constituted in January 2017 by the union government to recommend measures
for:

 Ensuring speedy resolution of commercial disputes and

 to make India an international hub of Arbitration.
The recently submitted report is divided its Report in three parts in which it has suggested the
following measures:

Part 1: Improve the performance of arbitral institutions in India by

1. Setting up Arbitration Promotion Council of India (APCI). It will be an Autonomous Body having
representatives from all stakeholders. It will recognize professional institutes providing for
accreditation of arbitrators according to their
ICDAR is an autonomous organization,
performance.
headquartered at New Delhi working
2. Creating specialist Arbitration Bench to deal with such under the Ministry of Law and Justice,
Commercial disputes Department of Legal Affairs.
3. Changing various provisions of the 2015 Amendments
It was setup to promote ADR methods
in the Arbitration and Conciliation Act so as to
and to provide requisite facilities for
incorporate international best practices. the same.
4. Ensuring that National Litigation Policy (NLP) must
promote arbitration in Government Contracts.

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Part 2:

 Declare international centre for alternative dispute resolution (ICADR) as an Institution of national
importance under and empower it by making it a statutory body .
Part 3:

 Create the post of an ‘International Law Adviser’ (ILA) who will coordinate the dispute resolution
strategy for the Government in disputes arising out of its international law obligations, esp. those
arising out of Bilateral investment treaties (BITs).
Significance of the report:

Implementing the recommendations will ensure

 Reduction of the burden of the judiciary

 India being viewed as an investor friendly destination.

TELE-LAW
Government of India has launched the ‘Tele-Law’.

ABOUT TELE-LAW
 Objective of Tele-law: Under this legal aid services will be provided through Common Service
Centres (CSC) at the Panchayat level, spread across the country.
 How will it work?
o Under the scheme, a portal called ‘Tele-Law’ will be launched, which will be available
across the Common Service Centre (CSC) network.
o This will connect the citizens to legal service providers. People will be able to seek legal
advice from lawyers through video conferencing available at the Common Service Centres
(CSC).
o The National Legal Services Authority (NALSA) will provide a panel of lawyers from State
capitals, who will be available through video conferencing to provide legal advice and
counselling to the applicants.
 What will be the role of a Para Legal Volunteer (PLV)?
o Every Common Service Centre (CSC) will also engage a Para Legal Volunteer (PLV), who
will be the first point of contact for the rural citizens.
o These PLVs will help the applicant connect with a lawyer through the video conferencing
facility at the CSC, will help them in understanding the legal issues, explain the advice
given by lawyers and assist in further action required in cases as per the advice of the
lawyer.
o They will also keep a track of the progress of the applicants’ cases and grievances and
maintain a record. These records will be submitted to the District Legal Service Authority
every week.
 Agencies involved: It Is a collaboration between the Ministry of Law and Justice and the Ministry
of Electronics and Information Technology (MeitY), which runs the Digital India programme.
 In the first phase, a pilot project is being rolled out across 1000 Common Service Centres (CSC) in
Uttar Pradesh & Bihar.

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ACCESS TO JUSTICE PROJECT FOR MARGINALIZED PERSONS

 This scheme is a continuation to the Access to Justice Project for Marginalized Persons.
 This scheme is being implemented by Department of Justice and United Nation Development
Programme (UNDP).
 It’s objective is to mainstream legal literacy through common service centres in Jharkhand (10
CSCs in 3 districts) and then through 500 CSCs across 11 districts in Rajasthan.
 Under the program, 500 VLEs in Rajasthan were trained on social justice legislations such as the
right to information, fundamental rights, citizen rights vis-à-vis policing, gender laws, child rights
and labour laws.
SCHEME FOR PARA-LEGAL VOLUNTEERS
 During the year 2009 National Legal Services Authority (NALSA) brought out a scheme called the
Para-Legal Volunteers (PLVs) Scheme which aimed at imparting legal training to volunteers.
 Task of a PLV:
o To impart awareness on laws and the legal system,
o They are also expected to amicably settle simple disputes between the parties at the
source itself.

HATE SPEECH LAW COMMISSION REPORT NO. 267

Election campaigns in the run-up to the recently held state assembly elections in Gujarat
and Himachal Pradesh saw many hate speeches being made.
Definition:
 ‘Hate speech’ is an emotive concept, and there is no universally accepted definition of it in
international human rights law or Domestic legislations.
 Put simply, Hate Speech made of two words, “Hate” and “Speech”. It is any expression of
discriminatory hate towards people: it does not necessarily entail a particular consequence.
Distinction between Hate Speech and Sedition:
 The offence of hate speech affects the State indirectly by disturbing public tranquillity, while
sedition is an offence directly against the State.
 To qualify as sedition, the impugned expression must threaten the sovereignty and integrity of
India and security of the State.

Dilemma in Defining Hate Speech: HATE SPEECH PYRAMID

Defining hate speech is one of the most significant task. Noting the seriousness of the situation, in
the Pravasi Bhalai Sangathan case, 2014, the Supreme Court of India had asked the Law Commission
of India to examine issues related to hate speech including its definition and to submit its report to
Parliament.
We need not ban or curb all the speeches. And therefore, to ensure the balance between Freedom
of Speech and Public order, ‘hate speech’ can be divided into three categories:
1) Hate speech’ that must be prohibited
Under international law, States are required to prohibit the most severe forms of ‘hate speech’. The
prohibitions are tailored to preventing the exceptional and irreversible harms the speaker intends
and is able to incite.

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These are:

 Direct and public incitement to genocide”

 Any advocacy of discriminatory hatred that constitutes incitement to discrimination,
hostility or violence
2) Hate speech’ that may be prohibited

International human rights law permits States to restrict expression in limited and exceptional
circumstances, complying with the three-part test under Article 19(3) of the International Covenant
on Civil and Political Rights (ICCPR). These restrictions must be:

1. provided for by law

2. in pursuit of a legitimate aim, such as respect for the rights of others, and
3. must be necessary in a democratic society
3) Lawful ‘hate speech’

 Expression may be inflammatory or offensive, but not meet any of the thresholds described
above. This expression may be characterised by prejudice, and raise concerns over
intolerance, but does not meet the threshold of severity, at which restrictions on expression
are justified.
 This does not preclude States from taking legal and policy measures to tackle the underlying
prejudices of which this category of ‘hate speech’ is symptomatic, or from maximising
opportunities for all people, including public officials and institutions, to engage in counter-
speech.
Case study
 A teenage boy, with a small number of followers on Twitter, tweets an offensive and sexist
joke that trivialises the disappearance and likely murder of a local schoolgirl. It provokes a
strong critical response against the boy online, and he eventually deletes the tweet.
 Though the communication is offensive and reflects a broader problem of misogyny in
society, he did not intend to incite any harmful conduct against a particular group, and in
any case he does not have this kind of influence over his followers. This kind of ‘hate speech’
may justify soft intervention from local actors in positions of authority, such as teachers in
his school or other community leaders, but it does not justify the State imposing sanctions
or other restrictions.

Reasons for origin of Hate Speech:

1. Ethnic and religious Reasons: A derogatory, insulting, or disrespectful nickname for a person’s
ethnicity. For instance, Hate speeches in Nigeria on ethnic lines and the infamous Rohingya
Crisis are apt examples.
2. Racial: It is based on race of people. For instance, attack on African students in Greater Noida
and Attack on Students from North Eastern India.
3. Homophobic: Section 377 of IPC makes the LGBTQ Community vulnerable to attack and
indignity. Discrimination based on sexual orientation has also led to taking actions for
protection of sexual minorities.

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4. Political: According to an IndiaSpend analysis of self-disclosed crime records of candidates,

Candidates with hate-speech cases against them were three times more successful in
elections compared to those without a criminal record.
Facilitators of Hate Speech:

1. Social Media Platforms: Social media platforms like Facebook, Twitter, Google and many
others have been susceptible to misuse due to their reach and anonymity. It is very difficult
to trace who is posting such content.
2. Role of Media: Both deliberate and unintentional negative portrayals of speeches are often
found in the media, thus negatively impacting people’s views of these communities.
3. Lack of Clarity: In terms of analyzing what constitutes hate speech and what does not, there
is a lack of clarity, which has led to the culprits not being prosecuted properly.
4. Legal Loopholes: Hate speech has been covered indirectly under 6-7 provisions of IPC in India.
Despite best intentions, the government’s actions are often marred by procedural
irregularities and overreach.

Impact of Hate Speech:

1. Threat to Internal Security: Propagation of hate speech and by the terror outfits to spread
their message of hate and violence to radicalize the youth. This in turn affects internal
security of the country.
2. Hate Crimes: It leads to hate crimes. In India, exodus of North Eastern Students from
Bangalore and Anti-black Racial attack in the US, genocide, ethnic cleansing etc.
3. Refugee Crisis: Anti-immigrant and Anti-refugee rhetoric are on rise with inflow of migrants
and examples of harsh treatment of these communities. Examples: West Asian Refugee Crisis
and Rohigya Crisis.
4. Social: We can see several hate speeches in social sphere. For instance, Caste
Violence erupted in Saharanpur between the Thakur and Dalit communities fuelled by
rumours and provocative posts on Facebook.
5. Freedom of Expression: Hate speech may cause fear and can be the reason why people
withdraw from the public debate. The result being that important voices that should be heard
in the public debate are silenced.

Existing Legal Provisions:

 Constitution: As it is difficult to define hate speech, ‘limits’ to article 19 contained in

19(2) were arrived at, rather than approaching a definition of hate speech
itself.
 Legislation: Hate speech has not been defined in any law in India. However, legal provisions
in certain legislations (IPC, CrPC, 1973, Representation of the People Act, 1951) prohibit select
forms of speech as an exception to freedom of speech.

Legal Measures to tackle the Menace of Hate Speech:

 In 2014, the Supreme Court in the case of Pravasi Bhalai Sangathan vs Union of India
requested the Law Commission to define hate speech and make recommendations on
curbing hate speech.
 Law Commission of India:
o It submitted its report in March 2017, the commission also has drafted a new law The
Criminal Law (Amendment) Bill, 2017 by inserting new Sections to fortify democracy
against hate speeches.
o New Sections:

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 Insert Section 153C to penalise incitement to hatred.

 Insert Section 505A to make ‘causing fear, alarm, or provocation of violence in
certain cases’ a specific criminal offence.
 TKA Vishwanath Committee: it submitted its report in September 2017. It made following
recommendations to curb the menace of hate speech and abuse on internet
o It said that Section 78 primarily dealt with capacity building and needs to be relooked at
with a view to sensitize the officers of law enforcement agencies.
o Each state should have a State Cyber Crime Coordinator which should be an officer not
below the rank of Inspector General of Police.

Non- Legal Measures to tackle the Menace of Hate Speech:

 Training: Improving the level of training in equality and non-discrimination among police forces
and legal bodies, improving research and encouraging reporting of such content.
 Clarity and technological up-gradation: is needed to deal with this and a mechanism to get down
such material, which is prone to disturb social setup.
 Awareness and Contra-narratives: Generating contra-narratives on social networks and raising
public awareness through campaigns to tackle extremism.
 Popular television dramas which subtly and effectively promote harmony between warring
communities,

 The involvement of religious heads to build empathy across religious lines to reduce communal
tension, and

 Strategic interventions (especially in the context of social media) to monitor the dissemination of
hate speech and mob mobilisation.
 Persuading people who are the weakest links, to stop spreading a harmful rumour.


SEDITION
In 2017, The sedition law was used against 15 Dalit protesters in Karnal, who had
demanded the release of four arrested for a murder committed during a clash between
castes at a village in Ambala three months ago. They are accused of disturbing the peace
and speaking against the government.

What is sedition?

 Section 124-A in the Indian Penal Code, named 'Sedition', explains sedition in wide and
magnanimous terms
 It says 'Whoever, by words, either spoken or written, or by signs, or by visible representation, or
otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite
disaffection towards the Government established by law in India' shall be punished with life
imprisonment
 The explanations which the Indian Penal Code gives are that 'the expression 'disaffection' includes
disloyalty and all feelings of hate
 It also says that comments that express strong disapproval of 'the measures of the Government,
with a view to obtain their desired modifications by lawful means, without exciting or attempting
to excite hatred, contempt or disaffection, do not constitute an offense under this section.'
 According to the section 124-A, comments expressing strong disapproval of the 'administrative or
other action of the Government without exciting or attempting to excite hatred, contempt or
disaffection, do not constitute an offense under this section.'

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What is not sedition? View of judiciary on sedition

 In Kedar Nath Singh’s Case, 5 judges of the Supreme Court – a Constitution bench – made it clear
that allegedly seditious speech and expression may be punished only if the speech is an
‘incitement’ to ‘violence’, or ‘public disorder’.
 In Indra Das v. State of Assam and Arup Bhuyan v. State of Assam, the Supreme Court
unambiguously stated that only speech that amounts to “incitement to imminent lawless action”
can be criminalised.
 In Shreya Singhal v. Union of India, the famous 66A judgment, the Supreme Court drew a clear
distinction between “advocacy” and “incitement”, stating that only the latter could be punished.
 Therefore, advocating revolution, or advocating even violent overthrow of the State, does not
amount to sedition, unless there is incitement to violence, and more importantly, the incitement
is to ‘imminent’ violence.
 For instance, in Balwant Singh v. State of Punjab, the Supreme Court overturned the convictions
for ‘sedition’, (124A, IPC) and ‘promoting enmity between different groups on grounds of religion,
race etc.’, (153A, IPC), and acquitted persons who had shouted – “Khalistan zindabaad, Raj Karega
Khalsa,” and, “Hinduan Nun Punjab Chon Kadh Ke Chhadange, Hun Mauka Aya Hai Raj Kayam
Karan Da”, late evening on 31 October 1984, i.e. a few hours after Indira Gandhi’s assassination –
outside a cinema in a market frequented by Hindus and Sikhs in Chandigarh.
Thus, words and speech can be criminalised and punished only in situations where it is being used to
incite mobs or crowds to violent action. Mere words and phrases by themselves, no matter how
distasteful, do not amount to a criminal offence unless this condition is met.

Key facts

 The law was originally drafted by Thomas Macaulay

 It was not a part of IPC in the 1860s and was even dropped from the law. It was introduced in the
IPC in the year 1870
 Many Indian freedom fighters, including Mahatma Gandhi and Bal Gangadhar Tilak, were charged
with sedition during freedom struggle
 When the first amendment was introduced, which also included detailed limitations on free
speech, the then Prime Minister Jawaharlal Nehru was categorical in his belief that the offence of
sedition was fundamentally unconstitutional. He had said 'now so far as I am concerned [Section
124-A] is highly objectionable and obnoxious and it should have no place both for practical and
historical reasons. The sooner we get rid of it the better.'
DEBATE OVER SEDITION
Why we need sedition clause?
 Absolute fundamental rights cant be given as we need to maintain social order;
 We need to ensure integrity, sovereignty and security of nation which is still in the making;
 To ensure that tranquility of the State is not disturbed and ignorant persons are not able to
debase the government.
Criticism of use of sedition?
 Colonial hangover: This law was proposed in India in 1870 in riposte to increasing Wahabi
activities between 1863 and 1870. And later on also it was used by British Officials tried to crush

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the Indian Freedom Struggle with an Iron hand. And many of our freedom fighters were charged
with Sedition.
 It is against Article 19(1)(a) of Constitution
 It is used by government to curb genuine criticism. Government is becoming intolerant to
dissent.
Way forward –
 Should we abolish it?
o NO. Its legality has been challenged and judiciary has earlier held that Section 124A of
the Indian Penal Code which makes sedition an offence is constitutionally valid.
o Though the section imposes restrictions on the fundamental freedom of speech and
expression, the restrictions are in the interest of public order and are within the ambit
of permissible legislative interference with the fundamental right.
o While upholding the sedition law, the Supreme Court said it should apply only to cases
where an accused person intended to create public disorder or incite violence.
 Then what needs to be done?
o The yardstick to assess that a person has excited or attempted or desired to excite
hatred, contempt or disaffection should be more clearly defined so that the
government is not able to misuse it. Thus make any appropriate changes if desired.
o Also government should use it only in those cases which really calls for it. It should not
be used to curb the criticism. Also government should provide a mechanism to
dissatisfied people to air their grievances so that they don’t have to report to other
wrong ways.
 People should also act responsibly:
o People should also ponder over the content before its publication with their main
objective as the amelioration in the estate of the larger number of people.
o One acquainted with the defects of any action of government can apprise the common
people about the same to get it rectified by having the support of larger number of
people so that it appears a genuine demand with censuring or disapproval of actions of
the State in such a way that might not result in pubic disorder.

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RIGHT TO PRIVACY
The Constitution bench headed by Chief Justice J S Khehar ruled that "right to privacy is
an intrinsic part of Right to Life and Personal Liberty under Article 21 and entire Part III of
the Constitution".

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BANNING OF BOOKS
Recently Jharkhand government has decided to ban the Sahitya Akademi awardee
Hansda Sowvendra Shekhar’s 2015 book –“The Adivasi Will Not Dance” , for portraying
the Santhal community “in bad light”.
Two years back Tamil writer Perumal Murugan was forced to announce his “death” as a
writer due to controversy over his book and its subsequent banning.

Why books are often banned by government

 Often government is willing to play the game of identity politics and readily ban books to
appease its vote bank.
 Faced with political pressure from influential constituencies, the easiest way out for any
government is to accede and ban a book, and then “let the law take its own course”.
 The Indian legal system is structured in a manner that achieving censorship through law is an
almost costless enterprise for anyone inclined to try
 It is often used to gain in political power it brings to the person, group, or party shouting for
the ban.
 A strong, judicial commitment to free speech, at all levels of the judiciary does not exist to
counteract this. Recent example of this was injunction on book “Godman to Tycoon” by a
Delhi court.
 Many times judges have not themselves internalised the importance of free speech in a
democracy.

Section 95 of IPC

 The legal authority of the government to ban books flows from Section 95 of the Code of
Criminal Procedure
 It authorises State governments to forfeit copies of any newspaper, book, or document that
“appears” to violate certain provisions of the Indian Penal Code, such as Section 124A
(sedition), Sections 153A or B (communal or class disharmony), Section 292 (obscenity), or
Section 295A (insulting religious beliefs).
 It allows governments to ban publications without having to prove, before a court of law, that
any law has been broken.
 Section 95 ensures that the economic burden of a ban falls upon the writer or the publisher,
who must approach the court.
 It also ensures that while the court deliberates and decides the matter, the default position
remains that of the ban, ensuring that the publication cannot enter the marketplace of ideas
during the course of the (often prolonged and protracted) legal proceedings.

Consequences of such decision

 Banning books is against the fundamental right of speech and expression.

 It create an environment in which the freedom of speech is in almost constant peril.
 By giving the government the power to ban publications with the stroke of a pen , the law
provides a recipe for overregulation and even abuse.
 Writers, artists, and publishers are perpetually occupied with firefighting fresh threats and
defending slippery ground, rather than spending their time and energy to transgress,
challenge and dissent from the dominant social and cultural norms of the day.

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 Furthermore, litigation is both expensive and time-consuming. It results in considerable

hardship and harassment for writer.
 It embolden the fringe group and leads to more of such unreasonable demands

Way forward

 The banning of The Adivasi Will Not Dance reflects the structural flaws in our criminal law that
undermine the freedom of speech.
 Administration should follow a standard procedure and a proper scrutinising mechanism
which is transparent in nature before banning any work.
 There is need to repeal Sections 95 and 96, take the power of banning books out of the hands
of the government, and stipulate that if indeed the government wants to ban a book, it must
approach a court and demonstrate, with clear and cogent evidence, what laws have been
broken that warrant a ban.
 There is need to affirm free speech as a core, foundational, and non-negotiable value of our
Republic and our Constitution.

CONSTITUTION (123RD AMENDMENT) BILL, 2017

A select committee of the Rajya Sabha looking into The Constitution (123rd Amendment)
BILL, 2017 has decided to consult states every week till the logjam over the Bill is
resolved.

What is National Commission for Backward Classes?

 Pursuant to the Supreme Court judgement in the matter of Indra Sawhney and others Vs. Union
of India in 1992, the National Commission for Backward Classes was constituted in 1993 under the
National Commission for Backward Classes Act was enacted in April, 1993.
 Functions? At present its the function is limited to
o examining the requests for inclusion of any class of citizens as a backward class in the Lists
and
o hear complaints of over-inclusion or under-inclusion of any backward class in such lists.
What is Constitution (123rd Amendment) BILL, 2017?

 Timeline?
o The Bill was passed by Lok Sabha in second week of April 2017 and is pending in Rajya
Sabha.
o The bill has been referred to a select committee which will submit its report in Monsoon
Session.
 Salient features of the bill? It inserts the following amendments in constitution
Article Description
introduced

Article 338B  It accords constitutional status to the National Commission for Backward
Classes by inserting Article 338B into the Constitution.
 By this it repeals the National Commission for Backward Classes Act, 1993.

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Key functions?

1. To monitor all matters relating to the safeguards provided for the

backward classes by constitution or law.
2. To handle grievances of backward classes.
a. Under clause (10) of article 338 of the Constitution, the National
Commission for Scheduled Castes presently looks into the
grievances and complaints of discrimination of Other Backward
Classes also.
3. While inquiring into any complaint, it will have all the powers of a civil
court. It will be able to summon any person, ask for a document or public
record, and receive evidence on affidavits.
4. Union and state governments will have to consult the Commission on all
significant policy matters affecting the socially and educationally
backward classes.
Article 342A  Any addition to the Central list of OBCs will need to be cleared by
Parliament.
Clause 26C in  In article 366 of the Constitution, clause (26C) will be inserted which will
Article 366 state that "socially and educationally backward classes" means the
backward classes as are so deemed under article 342A for the purposes
of this Constitution.

Significance?

1. It will give it a constitutional status at par with the National Commission for Scheduled Castes
(NCSC) and the National Commission for Scheduled Tribes.
2. Under the NCBC Act, the Commission merely has the power to recommend inclusion or exclusion
of communities in the OBC list. The new Bill, once passed by Parliament, will allow it to look into
all matters regarding the welfare and development of backward classes, as well as to investigate
complaints.
3. Now it will hear the grievances of backward classes which at present are dealt by National
Commission for Scheduled Castes (NCSC).
a. The National Commission for the Scheduled Castes has recommended in its Report for
2014-15 that the handling of the grievances of the socially and educationally backward
classes under clause (10) of article 338 should be given to the National Commission for
Backward Classes.
Criticism?

1. Opposition parties are opposing it on the ground that by makes Parliament the final authority on
inclusion of communities in the OBC list, it takes away the authority of states which can now send
requests to the NCBC
2. Rajya Sabha members have argued that such an important constitutional amendment could not
be approved without proper study.
3. Some crtics have also argued that merely giving it a constitutional status won change much as
the experience of NCSC and NCST shows.

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OFFICIAL EMBLEM OF WEST BENGAL

On January 5, 2018, West Bengal Chief Minister Mamata Banerjee unveiled the official
emblem of the state.

About:
 Features of emblem: The logo
highlights the Ashoka emblem
on the top with the theme of
"Biswa Bangla" at the centre.
 Significance:
o It will help create a
“unique identity” for
the state.
o Henceforth the State
emblem can be used in
all the official work and documents of the State government.
 Is West Bengal the first state? No. other states like Bihar, U.P. and Jharkhand already have a state
emblem.

VIP CULTURE
Curb on use of red beacon.

Red beacons discontinued:

 The Union Cabinet has decided to disallow the use of the red beacon on vehicles on India’s roads.
 From May 1, 2017, No one including The President, The Prime Minister, Chief Justice, Governors,
Speaker or the Chief Ministers of various states can carry red beacon lights on their vehicles.
 Use of Blue beacons:
o From May 1, 2017, only vehicles on emergency services (police cars, ambulances and fire
trucks) will be allowed to the use of a beacon — that too a blue-coloured one.
o Officers in centre and state can carry blue beacons on their vehicle provided they are
facilitated by ordinances ratified by the appropriate state governments especially for
constitutional functionaries commuting intra state for Official duties.
Governing law?

 Rule 108 clause III of Central Motor Vehicles Rules of 1989 governs law which governs the beacon
and its colours.
States which have already decided to curb red beacon?

 Aam Aadmi Party government in Delhi and recently Punjab CM Amarinder Singh and UP CM Yogi
Adityanath have already decided to curb the use of red beacon.
SC verdict: Abhay Singh vs. Union of India-2014?

 Defense for red beacons: The second UPA government’s law officers defended the use of red
beacons for its officials and politicians by arguing that –

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o Certain dignitaries and category of officials constitute a class by themselves and

o Red lights were “essential for effective discharge of their duties”.
 Arguments by supreme court: The court reacted by terming red beacons a “menace”. It argued
that –
o Red beacons are synonymous with the “Raj mentality” and are the “antithesis of the
concept of a Republic”
o Red beacons symbolise power; it symbolises a stark differentiation between those who
are allowed to use it and those who are not.
o A large number of those using vehicles with red lights treat the ordinary citizens with
contempt and have no respect for the laws of the country and they
o The use of red beacons by public servants has no parallel in the world democracies.
Significance of the move?

 VIP beacon had become a status symbol, for which politicians and administrators to aspire to.
 It is a important move to change the perception of the state functionaries from rulers to public
servants which was the vision of our founding fathers.
o Jawaharlal Nehru said: “The word ‘people’ means all the people. I am myself a servant of
the farmers.
o PM Modi while curbing the use of red beacons rightly declared that every Indian is a VIP.
Does it mean end of VIP culture?

However the red beacon is not the only expression of power on the move as can be seen below –

 VIPs’ cars are allowed to zip through toll plazas in special lanes, while public waits in endless
queues; Pat-downs are avoided at the security gate at an airport;
 The power of official proximity is experienced by citizens the most while accessing government
services like getting a bed at a state hospital, or a seat for one’s child in school etc.
Way ahead?

To dismantle India’s VIP culture, doing away with status symbols such as red beacons is not enough.
We should take more pro-active steps like –

 Politicians and administrators should travel like ordinary people;

 Stripping the VIP’s of the massive security cover;
 Stop protecting MPs such as Ravindra Gaikwad who keep on shouting “don’t you know who I am”
bullying and
 Reform procedures and the work culture to provide a level playing field to citizens to get what is
theirs by right.

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LAW COMMISSION REPORT NO. 273

THE PREVENTION OF TORTURE BILL, 2017
Law commission of India submitted report no. 273 on “Implementation of United Nations
Convention against Torture” to Law Ministry.

Definition:
 In D.K. Basu v. State of West Bengal the Supreme Court observed that “Torture has not been
defined in the Constitution or in other penal laws.
 Torture is “is not merely physical, there may be mental torture also.
 It is generally defined as "the deliberate infliction of physical or mental suffering by person(s) to
force another person to yield information or for any other reason."

History:

 8Throughout history, torture was employed by various communities either in their religious rites
or its code of punishment.
 The "Trial and Torture to Elicit Confession” is discussed in detail in Kautilya's Arthashastra.
 During the Mohammeden era, the Shariat Law, ‘an eye for an eye', was made applicable.
Legislation of some Islamic Countries still provides for certain brutal physical punishments eg.
Public whipping, executing by lynching, or amputation of limbs.
 During the British Raj, Men, women and children were tortured to make confessions to crimes
which they had never committed.

Present Indian scenario:

 The issues of fake encounters; unjustified arrests; eliciting confession from innocent persons for
offences which they have never committed, by way of custodial violence; etc., have always been
subject matters of consideration by the Indian courts.
 The National Police Commission, in its Fourth Report (1980) noted that custodial torture had been
prevalent. Police practice torture in order to achieve quick results by short cut methods.
 In this background the matter was referred to law commission of India.

UN Convention against Torture (CAT), 1984:

 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(CAT) is an international human rights treaty, under the aegis of the United Nations.
 It was adopted in 1984 and came force in 1987.
 Main provisions:
o Ban on torture: Parties to CAT have to enact a law to outlaw torture. ‘Higher orders’ or
‘Exceptional circumstances’ should not be permitted to be used as an excuse for
committing torture.
o Ban on refoulement: It forbids states to transport people to any country where there is
reason to believe they will be tortured.

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 India and CAT: Though India had signed

the UN Convention in 1997, it is yet to
ratify it. India has expressed its
reservations against certain provisions of
the Convention, such as
o Inquiry by the CAT (Art. 20);
o State complaints (Art.21) and
o individual complaints (Art.22).

Recommendations:

It recommends passing of the Prevention of

Torture Bill, 2017 to ensure the following:

1. Wider definition: Have a wide definition of torture which includes even an attempt to cause a
physical, mental or psychological Injury”.
2. Ratify CAT: It will help in extradition of criminals from foreign countries. At present it is
problematic due to the absence of a law preventing harsh treatment by authorities.
3. Amendment to Existing Statutes:
a. Criminal Procedure Code, 1973: Amend section 357B to incorporate payment of
compensation, in addition to payment of fine.
b. Indian Evidence Act, 1872: Insert Section 114B to ensure that in case a person sustains
injuries in police custody, it is presumed that these have been inflicted by police, and the
burden of proof shall lie on the authority.
4. Punishment for acts of torture: Have stringent punishment for public servants extending up to
life imprisonment along-with fine to curb the menace of torture.
5. Compensation to Victims: Courts to decide a justiciable compensation for a victim, taking into
consideration his or her social background, extent of injury or mental agony.

Comment:

 So far, neither the Indian Penal Code nor the Code of Criminal Procedure specifically or
comprehensively addresses custodial torture.
 Thus the recommendation of the report will allow human rights advocates to pressurise the
government to recognise torture as a separate crime.

CASE STUDY: THE TICKING BOMB PROBLEM

INTRODUCTION:
 The problem that even the most virtuous people face when thinking about torture is whether
a good result produced by torture justifies the evil act of torturing someone. It's often illustrated
by a version of the 'ticking bomb problem'.
 Philosopher Jeremy Bentham has been regarded as the "father" of the ticking time bomb
argument. He wrote about it in his essay “Means of extraction for extraordinary occasions”.
TICKING BOMB PROBLEM?
You are a senior law officer and you are faced with the following situation:

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 A terrorist group states that it has concealed a nuclear bomb in Delhi.

 The authorities have captured the leader of the group.
 He says that he knows where the bomb is.
 He refuses to reveal the location.
 Your subordinates propose that Torture is guaranteed to produce the information needed to
ensure the authorities find and make the bomb safe.
Is it ethically acceptable for you to have him (or his family) tortured to find out where the bomb
is and thus save thousands of lives, or is it unethical to torture him, no matter how many die as a
result?
The basic ethical debate is often presented as a matter of deontological versus utilitarian
viewpoint.
ARGUMENTS FOR TORTURE IN EMERGENCIES:
 A utilitarian argument is when the overall outcome of lives saved due to torture are positive,
torture can be justified.
 The consequentialist argument is torture is justified in this case as it will prevent loss of life.
 Some have even argued for torture of the relatives of suspects if they believed that doing so
would yield information that would avert a terrorist attack.
ARGUMENTS AGAINST TORTURE in ALL CIRCUMSTANCES:
“Torture is a wound in the soul so painful that sometimes you can almost touch it, but it is also such
intangible that there is no way to heal it” – Adriana P. Bartow
 Deontological:
o The opposite view to utilitarian is the deontological, which proposes general rules and
values that are to be respected regardless of outcome.
o Torture treats people as means rather than ends.
 Illegal:
o The Supreme Court of India has consistently held that custodial torture violates right to
life enshrined in Article 21 of the Constitution.
o Article 2 of UN Convention against Torture (CAT), 1984 explicitly states that “Under no
exceptional circumstances whatsoever (state of war or public emergency) may be
invoked as a justification of torture.
 It is not an effective way of obtaining information: People experiencing torture, once broken,
are liable to make anything up in order to stop the pain.
 Long-term effect: Using torture makes the other group more likely to use torture themselves
in the long run which will lead to a long-term increase in violence.
 Torture damages the humanity of the torturers: Those who carry out torture are likely to
become brutalised by their acts, and desensitised to humanity

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 Torture is a slippery slope - each act of torture makes it easier to accept the use of torture in
the future
WORLDWIDE OPINION: TESTING THE 'TICKING BOMB' ARGUMENT
In 2006 the BBC conducted a worldwide poll to see if people thought the 'ticking bomb' defence -
the argument that using some degree of torture may save lives - could ever be a justification for
mistreating suspects.
Key findings of the poll were:
 60% of the world's citizens said 'NO': they are unwilling to compromise on the protection of
human rights. Opposition to torture was highest western Europe, Australia and Canada.
 30% think that governments should be allowed to use some degree of torture in certain cases.
 Support for using torture is generally greatest in those countries who see themselves as actively
engaged in a struggle against political violence.
o 43% of those questioned in Israel; 36% of Americans and chinese; and 32% in India
believe that some degree of torture should be allowed if it provides information that
saves innocent lives.
WAY AHEAD:
Pre-conditions for using torture:
The ticking bomb concept was popularized in the 1960s in the novel Les Centurions by Jean Larteguy
which is set during the Algerian war.
The version in the novel has the following conditions:
There are grounds for believing that
1. He is likely to tell the truth if severe torture is applied.
2. No other means would have the effect of compelling him to tell the truth.
3. If the information is obtained quickly, there is a good chance of defusing the bomb before it
goes off.
4. Likely damage to be caused by the bomb will be more severe and have a lasting effect than the
effect of the infliction of torture on the person who has been captured.
5. Torturing will not have consequences which would be worse than the damage likely to result
from the bomb going off.
Regulating torture: Torture warrant
 Alan Dershowitz, a prominent American defence attorney wrote a book “Why Terrorism Works:
Understanding the Threat, Responding to the Challenge”.
 In this he argued in favour a regulated procedure through which an interrogator could request
a "torture warrant".
 Requiring a warrant would establish a paper trail of accountability. Thus Torturers, and those
who authorize torture, could be held to account for excesses.

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PREVENTION OF DESTRUCTION OF
PUBLIC PROPERTY (PDPP) ACT
Union Home Ministry has proposed amendments to bring in radical changes to the
Prevention of Destruction of Public Property (PDPP) Act.

BACKGROUND:
● Damage to Public Property during violent protests is commonplace across the country.
● As per the National Crime Records Bureau (NCRB), 4,941 cases of damage to public property were
registered in 2015 under the 1984 Act. The highest number of cases have been reported from
Tamil Nadu (1,671), followed by Uttar Pradesh (1,131) and Haryana (529).
● Taking note of such destruction, supreme court appointed two committees headed by Justice KT
Thomas and Fali S Nariman.
● Based on the recommendations of these committees, the Union Home Ministry has proposed
amendments to the PDPP act, 1984.
SALIENT FEATURES OF THE PROPOSED AMENDMENTS:

● It seeks to deter the

o office bearers of the organizations who call for this protests/agitation
o violators from vandalizing and destroying public/private property during agitations and
other forms of protests.
● The accused is presumed to be guilty of the offence unless proved otherwise.
● The fine to be paid by the guilty will be equivalent to the market value of the property damaged.
● Imprisonment of less than six months will be granted only in special cases.
● It has more stringent bail norms. Bail is to be granted only when there are reasonable grounds
that the accused is not guilty of the offence.
● It enables the police officers to arrange videography of the demonstrations, if he/she believes that
it can cause damage to public property.
● The organizer shall provide an undertaking to ensure a peaceful march. All weapons, including
knives, lathis and the like shall be prohibited.
CRITIQUES OF THE AMENDMENT:

● There is fear that these provisions can be misused against political opponents because it allows
criminal prosecution of leaders on presumptions rather than on proof.
● The proposal of fine to be equal to the market value of the property damaged might be impractical
and unworkable.
● Stringent bail provisions are not justified as there is a presumption of guilt.
● It may jeopardize the right to protest which is essential for a vibrant, healthy, responsive
democracy.

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MOB LYNCHING
In 2017 (as of June), 8 cases of mob lynching have been reported, of which 5 deaths
happened in the month of June only.
The word lynch originated during the American Revolution by Charles Lynch. In a layman’s language,
lynching means murder by an angry mob of people.

INDIAN SCENARIO

There is a high rise in Mob Lynching in India. During 2017 we have observed a total of 8 cases of which
5 happened in the month of June only. Generally, Muslims and Dalits are the victims.

Some of the prominent lynching cases in recent times are:

● Dimapur Lynching (2015): An angry mob broke into the Dimapur Central jail in Nagaland and
lynched Syed Farid Khan, who was accused of rape.
● Dadri Lynching 2015: An angry Mob lynched Mohammad Akhlaq, who was accused of slaughtering
a cow calf and storing the meat for consuming.
● Delhi Lynching 2017: An e-rickshaw driver was lynched by a mob of students from Delhi University
after the driver had stopped two drunken students from urinating in public.
● Srinagar (2017): An angry mob lynched Deputy Superintendent of Police, Mohammad Ayub
Pandith, outside Nowhatta’s Jamai Masjid.
REASONS FOR MOB LYNCHING:

● Generally, it happens when a particular community believes

that the victim has allegedly hurt their sentiments. Being The mob involved in most of these
dissatisfied with the slow & lengthy criminal justice system, cases follows the Hindutva
they take law into their own hand. ideology that India is a Hindu
● Underlying reasons for lynching are persisting Communal nation and cow is our holy
animal. Thus cow slaughter and
and Casteist mindset which is perpetuated politicians for beef consuming are anti-national
electoral gains. act, which should be punished.
● Inaction by government: Inaction of government and
administration gives a silent encouragement to perpetrators. Our PM, who is otherwise a great
orator, has spoken only occasionally against it.
● Legal loopholes: At present there is no law that criminalizes mob killings. The Indian Penal Code
has provisions for unlawful assembly, rioting, and murder but not for group of people coming
together to kill (a lynch mob).
● Lack of police reforms: Poor infrastructure and lack of trained officials contributed to Dimapur
lynching (where mob entered the prison). In most cases, police personnel prefer to look
elsewhere.
CRITICISM:

The act of lynching, even if the grievance of mob is not right because:

● The victim may be an innocent person as most of these cases are based on rumors, not on facts.
● It is a barbaric act which is against human rights. The accused is not given any right to heard. At a
time when even capital punishment by government is condemned, mob lynching, for whatever
reason can’t be acceptable.

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● It is against the principle of rule of law, as it is the duty of the Government to punish a criminal;
a layman should not take law into his own hands.
● All of this strikes fear into the minority community which provides a fertile ground for
ghettoization, communalism and terrorism.
● If the people are dissatisfied with the functioning of the judiciary, then they should become a
responsible active citizen by giving suggestions and taking steps to reform it.
● It prevents society from facing and handling other serious issues of development.
● It brings bad name to India in the world
WAY AHEAD:

As PM Modi said that ‘Killing in the name of Gau Bhakti’ or any other reason is not acceptable. Thus
concrete steps should be taken in this direction:

● Reform the criminal justice system, so as to restore

#NOTINMYNAME was a protest
people’s faith in it. demonstration recently held across many
● Remind the people that India is a secular nation which Indian cities by citizens against incidents
belongs to every community (Hindus. Muslims, of lynching of Muslims and Dalits.
Christians, Sikhs, Jains, Buddhists and Parsis). The immediate trigger for it was the killing
● Awareness drive or campaigns such as the “Not in My of 15-year-old Junaid Khan by a mob after
Name” should be encouraged by the civilians. an argument over train seats escalated.
● Have a separate professionalized squad with all the
modern equipment’s to deal with mobs.
● Make mob lynching a criminal offence and ensure that all cases are speedily tried so as that it acts
as a deterrent.
MASUKA (MANAV SURAKSHA KANOON) BILL:

● In his background, The National Campaign Against Mob Lynching (NCAML) – a civil society
organization – drafted a Protection from Lynching Act, 2017.
● Its salient features:
o Defines the terms ‘lynching’, ‘mob’ and ‘victim’ of mob lynching.
o Makes lynching a non-bailable offence; Criminalizes dereliction of duty by a policeman;
criminalizes incitement on social media
o Guarantees a speedy trial by designating special courts and witness protection.
o Includes provisions for rehabilitation of victims’ families through mandatory payment of
compensation by state governments
● Criticism of the draft law:
o First, the law is redundant. Though there is no specific section for punishing lynching, but
reading sections 302, 326 and 149 of the Indian Penal Code makes it clear that “lynching”
is an illegal act.
o Second, it is badly drafted as it contains vague terms like taking reasonable steps,
dissemination of “offensive materials” etc.
o Lastly, key reason is not lack of law, but poor enforcement of law which is due to lack of
police reforms.

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INNER PARTY DEMOCRACY

Law Commission in it’s Report No. 255
In late October 2017, PM Modi called for a debate on internal democracy in political
parties.

TYPES OF DEMOCRACY
Democracy includes the following two types:

1. Procedural Democracy: It refers to the practice of universal adult franchise, periodic elections,
secret ballot etc.
2. Substantive Democracy: it refers to the internal democratic functioning of the parties, which
purportedly represent the people.
Below we will discuss about the substantive democracy.

MEANING:

“‘Inner Party Democracy’ is the Party Leadership of the members, by the members and for the
members”

Inner party democracy includes provisions governing the Internal elections, Candidate selection and
Secret ballots. It involves

 Creation of an Executive Committees for every political party (whose members would be elected
by members of the local units of the party)
 Selection of candidates for contesting legislatures by Executive Committee with due regard to the
recommendations made by the State and District units of the constituency.
 Decisions of the Executive and local committees to be taken on the basis of a simple majority vote
with secret ballots.
 Provisions for Registration and Deregistration of parties.
IMPORTANCE:

 Internal democracy and transparency within political parties is important to

o promote financial and electoral accountability,
o reduce corruption, and
o improve democratic functioning of the country as a whole.
 In the words of Law Commission (170th report), inner party democracy is at the heart of a
parliamentary democracy.
 The ARC’s 2008 Ethics and Governance report also called for inner party democracy as corruption
is caused by over-centralisation since “the more remotely power is exercised from the people, the
greater is the distance between authority and accountability.”
Ramification of lack of Inner Party Democracy:

 It Leads to factionalism within the party itself.

 Selection of undeserving candidates by parties creates disillusionment among voters thereby
weakening of democracy.
 Corrosion of values in political parties leading to Criminalization of politics
 May adversely affect the development of the nation as important decision may be taken without
due deliberations and diligence by the party in power.

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 Political parties become non representative of the population eg: women, SC/ST/OBC and
minorities are not much represented in the political parties.
INDIAN SCENARIO:

Present regulatory mechanism in India:

 Currently, there is no express provision in constitution or law for internal democratic regulation
of political parties in India
 The only governing law is provided by Section 29A of the Representation of People’s Act, which
only provides for registration of political parties with the Election Commission of India (ECI). It
is silent on candidate selection and internal functioning of parties.
 The Supreme Court in Indian National Congress (I) v Institute of Social Welfare clearly stated that
the ECI currently lacks the power to de-register a party under Section 29A of the RP Act.
Other reasons for lack of Inner Party Democracy in India are
 Nepotism and Dynasty politics: E.G. Patrick French in his book ‘India: A Portrait’ has presented
that almost all MPs below the age of 30 in the 15th Lok Sabha are from political families.
 Focus on personal gains: This leads to parties functioning on the basis of winnability rather than
democracy and morality.
GLOBAL SCENARIO:
As the need for reform is evident, it is useful to briefly examine the scenario in Western European
nations, which have tried to regulate practice political parties
In 1949, Germany became the first European country that regulated its political parties with a
constitution in order to safeguard democracy.
 Germany & Portugal: Both countries regulate the action as well as ideology of parties through
Constitution, prohibiting regional or religious objectives and requiring internal democracy.
 Spain: Unlike Germany and Portugal, Spain only regulates the actions of its political parties, not
their aims or intentions.
 Lesson for India: Given the complex socio religious-political fabric of the country, powers to the
ECI should extend to the regulation of action and not ideology.
LAW COMMISSION RECOMMENDATIONS:
Law commission in it’s Report no.255 on electoral reforms suggested that a new Part titled “Regulation
of Political Parties” shall be inserted in the RPA. The new Part reads as follows:
1. A political party shall strive to utilize its funds exclusively for fulfilling the goals set out in the
Constitution of India.
2. Constitution of a political party: The Constitution of a political party shall provide for
a. procedure for admission, expulsion and resignation by the members;
b. the general organisation of the party including the formation of State, regional, district,
block and village level units;
3. Executive committees:
a. The executive committee of a political party shall be elected on regular basis.
b. Constitution of political party shall define the composition and powers of the executive
committee and other organs of the party.
4. Voting procedures:
a. A political party and its organs shall adopt their resolutions on the basis of a simple
majority vote.
b. The voting shall be by secret ballot.

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5. Candidate selection: The candidates for contesting elections to the legislature shall be selected
by the executive committee having due regard for the recommendations made by the concerned
local party units.
6. Regular elections: Executive committee shall hold elections of national and State levels in the
presence of the observers nominated by the Election Commission of India.
7. Penalties for non-compliance: In case of non-compliance of any of the above mentioned
provisions, Election Commission can impose fine and even withdraw registration of the party.

FAKE NEWS
Recently, BJP filed a complaint with the Cyber Crime Cell of the Goa Police against unknown
persons for propagating fake news video against Chief Minister Manohar Parrikar. Fake news
has become a major worldwide political and media theme for 2017.
WHAT IS FAKE NEWS?

 Fake news are “news stories that have no factual basis but are presented as news.” It includes
deliberate misinformation or hoaxes which are spread via traditional print and broadcast news
media or online social media.
 According to Martina Chapman (Media Literacy Expert), the three M elements to fake news are:
o Mistrust,
o Misinformation and
o Manipulation.
 Fake news stories can deceive people by looking like trusted websites or using similar names and
web addresses to reputable news organisations. It is written and published often with
sensationalist, exaggerated, or patently false headlines that grab attention

RISE OF FAKE NEWS:

In 'post truth' era, leaders must defend objective, independent media – UN

 Fake news is not new: It has been around for centuries being used by people to manipulate it for
their own ends.
 What has changed is the scale and ability to circulate false and sensational information due to the
emergence of social networks.
 It only came into lime-light with the U.S. 2016 presidential election which combined fake news
and social networks to confuse many Americans and devalued news reporting.
 Some of the recent incidence of fake news in India are: 2,000-rupee currency bill came equipped
with spying technology; pictures from a Bhojpuri movie were circulated to incite violence in west
Bengal.

REASONS FOR FAKE NEWS:

 Political motive: Fake stories are created to either influence people’s views, push a political
agenda or cause confusion.
 Profit: Fake news can be a profitable business, generating large sums of advertising revenue for
publishers who create and publish stories that go viral. The more clicks a story gets, the more
money online publishers make through advertising revenue.

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 What makes it difficult to deal with

o Internet has enabled a whole new way to publish, share and consume information and
news with very little regulation or editorial standards.
o A very thin line that exists between fake news and satire or parody.
o The viral spread of content on the social media. Once content is out in the public sphere,
it can take on a life of its own.
o Major news outlets and companies have been complicit in spreading fake news
o Anonymously-hosted fake news websites lacking known publishers make it difficult to
prosecute sources of fake news for libel.

TYPES OF FAKE NEWS:

Clickbait These are stories that are deliberately fabricated to gain more website visitors
and increase advertising revenue for websites. These use sensationalist
headlines to grab attention and drive click-throughs to the publisher website.
Propaganda Stories that are created to deliberately mislead audiences, promote a biased
point of view or particular political cause or agenda.
Satire/Parody Lots of websites and social media accounts publish fake news stories for
entertainment and parody. For example faking news in India.
Sloppy Sometimes reporters or journalists may publish a story with unreliable
Journalism information or without checking all of the facts which can mislead audiences.
Misleading Stories that are not completely false can be distorted using misleading or
Headings sensationalist headlines.
These types of news can spread quickly on social media sites where only
headlines and small snippets of the full article are displayed on audience
newsfeeds.
Biased/Slanted Many people are drawn to news or stories that confirm their own beliefs or
News biases and fake news can prey on these biases.
Social media news feeds tend to display news and articles that they think we will
like based on our personalised searches.
FAKE NEWS, REAL IMPACT:

 Some point to the role William Randolph Heart’s “yellow journalism” played in starting the
Spanish-American War in 1898.
 It facilitates the spread of conspiracy theories. it has also led to create communal tension and
violence.
 The diversion of funds from real news to fake news undermines serious media coverage and
makes it more difficult for journalists to cover significant news stories.
 The term ‘fake news’ is now being abused to clamp down on press freedom by branding ‘real
news’ and opinions as ‘fake news’.
 Governments are using the spread of fake news to justify online censorship, increases in
government surveillance, criminal liability for content moderators, and even total internet
shutdowns.

TACKLING FAKE NEWS:

 Genuine news publishers should continue their important work of investigative journalism,
reporting and fact-checking.
 Companies like Google and social media platforms like Facebook should suspend bot or
suspicious accounts and add features to allow users to report fake news

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 Government should setup services to

debunk stories that they consider to be
false and should consider imposing
regulations and punishing sites that do
publish misinformation. Legislators
from China, Iran, U.S.A have drafted
laws and rules for the same.
 While these are welcome
developments, digital media literacy
and developing critical thinking are
required from an early age. In the end,
it comes down to educated users who
should check the validity of article
before sharing it on social media.

Fake News: Word of the Year

 As defined by Collins, ‘fake news’ means

“false, often sensational, information
disseminated under the guise of news
reporting”.
 The term. popularised by U.S. President
Donald Trump, has been named the
word of the year due to its widespread
use around the world.
 The U.K.-based lexicographer found that
the use of “fake news” registered a 365%
rise in the last 12 months.
Italy: Fake News in School Curriculum

 In late October 2017, Italy added a new

item to schools' curriculum: recognizing
fake news.
 With help from leading digital companies,
the government hopes to train students to
differentiate between fake and real
stories.
U.S. “fake news” (Russian interference in the
2016 U.S. election)

 On October 31, 2017, Senior executives

from Facebook, Twitter, and Google
testified before a Senate judiciary
subcommittee which is investigating
Russian interference in the 2016 U.S.
election.
 According to testimony, Russian agents spread inflammatory posts that reached 126 million
Facebook users, published more than 1.4 million messages on Twitter and uploaded more than
1,000 videos to Google’s YouTube service.

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PAID NEWS
In June 2017, the Election Commission of India (ECI) disqualified the then Minister in BJP
government, Narottam Mishra as a legislator for three years for getting “paid news”
published in Hindi newspapers.

WHAT IS ‘PAID NEWS’?

 It is defined as any news or analysis appearing in print or electronic media for consideration in
cash or kind.
 Manifestations of paid news:
o Advertisements camouflaged as news,
o Denial of coverage to select electoral candidates,
o exchanging of advertisement space for equity stakes between media houses and
corporate.

INDIAN SCENARIO:

 The Election Commission of India found 42 cases of “paid news” that contributed to Narottam
Mishra’s victory in the 2008 Assembly elections in Madhya Pradesh.
 Paid news, both generally and during election campaigns, is a widespread phenomenon today.
According to the ECI, in the assembly elections held between 2011-2013, in 1727 cases the
practice of paid news was confirmed.
 During elections, media companies offer several “packages” to the candidates. Packages comprise
exclusive stories, front page, negative coverage for opponent etc.
 The ECI’s estimation of the worth of paid news market is Rs. 500 Crore.

REASONS FOR RISE IN PAID NEWS:

 Corporatisation of media, Desegregation of ownership and editorial roles, Decline in autonomy

of editors/journalists due to emergence of contract system and Poor wage levels of journalists
are the main reasons for rise of paid news incidence.
 There are challenges in determining what qualifies as ‘paid news’ due to lack of concrete definition
of the phenomenon. There is no law to proscribe or regulate it.
 The Regulatory set-up for dealing with it is inadequate as it lacks power and suffers from conflict
of interest due to appointment of media-owners as members of these bodies.
 Due to existence of multiple bodies like the MoIB, PCI, EMMC and ECI, there is lack of clarity
regarding the jurisdiction of the designated authority to penalise offenders.
 There is Inaction by the government, which has failed to implement various recommendations of
the PCI and Election Commission of India (ECI).

IMPACT:

“The phenomenon of ‘paid news' goes beyond the corruption of individual journalists and media
companies. It undermines democracy in India.” – Press council of India

 It affects the fairness of elections by tying a candidate’s prospects to his financial ability to
remunerate the media for coverage.

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 It undermines the public’s right to know, which is an aspect of their constitutional right under
Article 19(1)(a) and is the basis of which to make an informed political choice.
 The amount of money being spent on these practices has risen at exponential levels which also
incentivises the candidates to distort their election expenditure details and contributes to black
money and money laundering.

RECOMMENDATIONS:

In 2013, the Department-Related Parliamentary Standing Committee presented its report “Issues
Related to Paid News”, in which it made the following recommendations:

 Formulate a comprehensive legal definition of ‘paid news’ and suggest measures for usage of
‘circumstantial evidence’ in identifying paid news.
 Ensure periodic review of the editor/journalist autonomy and wage conditions.
 Financial accounts of the media houses should be subject to examination, especially the revenue
source for a suspected paid news case.
 Establish either a single regulatory body for both print and electronic media. It should have strong
punitive power. It should not include media owners/interested parties as members.
 Amending Press Council Act, 1978 and Representation of the People Act, 1951 (RP Act) to include
indulgence of an electoral candidate in paid news as a corrupt practice.
 ECI should be given the authority to take punitive action against electoral candidates in cases of
paid news.
 Media Certification and Monitoring Committee (MCMC) should be constituted in each district for
scrutinising all advertisements by individual contesting candidates or political parties.

CRIMINAL LAWS (RAJASTHAN AMENDMENT) BILL, 2017

Rajasthan government's Criminal Laws (Amendment) Bill, 2017, which has been tabled
in the state assembly in October 2017, raised a lot of controversy.
“A law is being made to protect these hopeless officials.
Instead of working for people's welfare, it (government) is bringing law to protect its
officials (who are) not willing to work.”
- Stated by the Rajasthan high court when the bill was tabled in the assembly
BACKGROUND:

 The bill seeks to replace the Criminal Laws (Rajasthan Amendment) Ordinance, 2017 which was
promulgated in September 2017.
 It is amending the, Criminal Procedure Code (CrPC) in its application to the state of Rajasthan.
 CrPC is a central law which specifies the process to be followed by authorities in criminal cases.
KEY PROVISIONS OF THE BILL:

 Prior sanction: Prior permission needs to be obtained from an authority before an investigation
can begin in the case of such public officials (serving and former judges, magistrates and public
servants in the state) for on-duty action.
 Duration of permission: Such permission is to be given or denied within six months. If no decision
is taken in this time, it will be assumed that permission to investigate has been given

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 Restrictions on Media: During the period of waiting for permission, media is barred from
publishing any information that may identify the public official.
 Penalty: Violation of the provisions will be penalised with a jail term of up to two years and a fine.
PRESENT STATUS:

 The Bill has been referred to a select committee of MLAs for detailed scrutiny of its provisions.
 After the committee submits its report, the government will have to decide whether it wants to
debate the Bill on the floor of the House and move for its passing.
ARGUMENTS FOR BILL:

 Preventing false FIRs: It is being done to protect public officials against false FIRs. According to
Rajasthan government, from 2013 until June 2017, about 73 % cases were found to be false.
 Preventing policy paralysis: Public officials need to function without fear and protected from legal
harassment for their official actions to prevent a situation of policy paralysis.
 Ending media trials: The bar on reporting will deter false cases brought with the intention of
maligning public officials.
 Not the first player: A similar law came into force in Maharashtra in 2016. There has been a central
bill with amendments to the Prevention of Corruption Act, pending since 2013, which includes
prior sanction.
But the bill has been criticized across the sections on various grounds

CRITICISM OF PRIOR SANCTION:

 Prior sanction is not a new concept. The main issue is at what stage it is required — before
beginning investigation, or before prosecution in court?
 At present under Section 197 of the CrPC and Section 19 of the Prevention of Corruption Act, 1988,
prior sanction is required before public officials can be prosecuted in courts.
 But the Rajasthan Bill introduces the requirement of prior sanction at the stage of investigation
in addition to the stage of prosecution thus adding an additional shield for public servants.
 In 2014, Supreme Court in a judgment observed that prior sanction for investigation could impede
an unbiased, efficient and timely investigation.
Prior restraint on Press:

 The ordinance imposes what is referred to in law as a “prior restraint” on the press. A prior
restraint is a form of censorship which is imposed before, not after, something is published.
 Supreme court has held that a prior restraint would be valid so long as it was designed to fall under
the exceptions to free speech contained in Article 19(2) of the Constitution. The recent bill doesn’t
fit the above exceptions.
Back to colonial era:

 The ordinance is a throwback to colonial times. Opposition is right in stating that it’s “It’s 2017,
not 1817”.
 In colonial India, Governor General Wellesley in 1799 introduced regulations under which no
newspaper could be published at all until it was previously inspected by the government.
 It was done so that Tipu Sultan can not get information on troop movements during the Fourth
Mysore War.
Media’s role in Exposing corruption:

 Had such a law been there earlier, media could not have reported, in Rajasthan, on official
collusion in Lalit Modi’s escape or Aravallis Mining scam.

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 if Rajasthan’s law inspired Central legislation, no scam would ever be reported, nationwide.
Comparison with Maharashtra gag law:

In 2016, a similar ‘gag law’ (Code of Criminal Procedure (Maharashtra Amendment) Act, 2015) came
into force in Maharashtra.

But this law differs from the Rajasthan Bill in two key respects.

1. There is no prohibition from publishing information about public servants while sanction is being
obtained for initiating investigation.
2. Maximum time in which sanction has to be given is three months as compared to the six months
in the Rajasthan Bill. This gives ample scope for the accused to destroy evidence and 'manage'
witnesses,
Criticism of select committee of MLAs:

 The committee is likely be headed by the state Home Minister, who is also the Minister piloting
the Bill. This is at variance with the procedure followed in Parliament — central Ministers are not
part of parliamentary committees.
Concluding remark:

 Rajasthan has gone boldly where no assembly has ever gone before. An immediate rollback would
be the prudent response from the Rajasthan government.
 Also the state and centre should take a progressive step by enforcing a strong body of legislation
that punishes the corrupt, protects the honest, and ensures time-bound public services and
whistle-blower safety.

PRE-CENSORSHIP OF FILMS
The Supreme Court has asked the Centre and the Central Board of Film Certification
(CBFC) to respond on a petition filed by cine veteran Amol Paleka on pre-censorship of
films.

AMOL PALEKAR‘S PETITION?

 What is he challenging?
o He has challenged the provisions of the Cinematograph Act, 1952 and the Cinematograph
(Certification) Rules, 1983 which in turn imposes pre-censorship on the films.
o Provisions of the act grants the power of ordering cuts, deletions, alterations in a film to
censor board.
 Arguments against pre-censorship?
o Violates right to speech: It is a violation of the fundamental right to freedom of speech
and expression of both film-makers and the public.
o Pre-Censorship of films was irrelevant in the Internet era: Content on Internet is free of
censorship, but the same content is being altered, cut or deleted before being shown in a
cinema hall. This is an attack on our right to equality.
 Arguments against censor board?
o Abuse of power by board: According to petitioner, the board abuses power granted by
the Act and Rules while certifying and/or denying certification to any applicant film.

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o Absence of a member with a legal background in the CBFC often leads the board to
repeatedly violate film-makers’ fundamental right to speech and expression.
 What is he demanding?
o To implement Shyam Benegal panel’s recommendation that the Censor Board’s role
should be confined to certification of films alone.

SHYAM BENEGAL PANEL

Timeline?
 The Committee was created on January 1, 2016, by the Ministry of Information & Broadcasting.
 submitted its report in April 2016.
Objective of committee?
 To recommend guidelines for certification of films by the Central Board of Film Certification
(CBFC)
Recommendations of committee?
 No pre-censorship by CBFC:
o The current system of suggesting modifications and amendments to a film by the CBFC
should be done away.
o The Board must function only as a film certification body.
 Functions of CBFC: CBFC should confine itself to:
o submission of an annual report to the central government, containing an analytical
study of the trends in the film industry, to be tabled in Parliament each year,
o prescribing the manner in which the records and accounts of the Board will be kept,
o reviewing the work of regional officers and the Regional and Central Advisory Panels,
o periodically review guidelines laid down for certification of films, etc.
 Staffing pattern of CBFC:
o In order to reduce the human interface between applicants and officials of the CBFC,
the process of application, and selection of members for the Examining Committee and
Revising Committee should be done through a computerised software.
o Examining Committee: That will sit through the screening of a film and deliberate on it)
o Revising Committee: that will function as the first point of appeal
 Modification to 1991 guidelines:
o Guidelines were issued in 1991 under section 5B of the Cinematograph Act, 1952.
o In this regard, the Committee has drafted a new set of guidelines. The objective of the
guidelines is:
 artistic expression and creative freedom of filmmakers is protected
 Audiences are empowered to make informed viewing decisions,
 the process of certification is responsive to social change.
 The guidelines also state that an applicant must mention in his application, (i)
the category of certification he seeks, and (ii) the target audience. Further, any
cuts in a film can only be made by the applicant, depending on the certification
he needs for his film.

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 Sub-division of existing categories of certification:

o Following Two categories of certification should be further sub-divided into sub-
categories.
 UA (films that contain certain scenes not suitable for children below the age of
12) and
 A (films suitable for adults only),
o The UA category should be divided into two sub-categories:
 UA 12+: UA 12+ will cater to young teenagers yet to be exposed to the adult
world.
 UA 15+: UA 15+ will cater to young adolescents at an age where they are being
exposed to issues in the adult world, in a moderate manner.
o The A category should include an A-C (films suitable for adults only, with caution) sub-
category, for films that may contain explicit material, such as nudity, violence, etc. This
categorisation will help audiences to make distinct choices.

LOKPAL
Supreme Court has recently directed the government to appoint a Lokpal and
implement the Lokpal and Lokayuktas Act.
About:
 Why it said so? The law was enacted in 2013. But still it has not been implemented because of
lack of appointment of Lokpal.
 What were the argument given by the government for delay in appointment?
o Government has argued that in the absence of a leader of the opposition in Parliament,
the selection committee for appointing Lokpal could not be constituted.
o Currently, a bill is pending before Parliament which will amend the law to include the
leader of the largest opposition party in the search committee.
Criticism of union government by SC?

1. Firstly, the Act provides for the selection committee to make appointments even when it is
truncated due to a vacancy.
a. SC also said that If the LoP (leader of the opposition) is not available then the chairperson
and the other two members of the selection committee may appoint an eminent jurist as
a member of the selection committee.
2. Secondly, It is curious that the amendment proposed by the government is pending since 2014,
inspite of it being approved by the parliamentary committee in December 2015. The delay in
passing this simple amendment is inexplicable.
3. Thirdly, a very simple way of resolving the impasse was to recognise the Congress party leader in
the Lok Sabha as the Leader of the Opposition. It can be done easily as here is no explicit law which
defines the criteria to be a leader of opposition. The 1977 salaries Act defines the position as the
leader of the largest party in the opposition and recognised as such by the Speaker. But that it
wont do probably because of it’s alleged political vendetta.
4. The only obvious reason for not having a Lokpal is absence of political will.

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ANIMAL RIGHTS
CATTLE SALE RULES STAYED BY SUPREME COURT
The Supreme Court has stayed the Centre’s May 26, 2017 notification, which bans cattle
sale in livestock markets for slaughter and religious sacrifices.

PREVENTION OF CRUELTY TO ANIMALS (REGULATION OF LIVESTOCK MARKETS) RULES, 2017:

Environment ministry has notified the Prevention of Cruelty to Animals (Regulation of Livestock
Markets) Rules, 2017 on May 26, 2017. These rules have been notified under the Prevention of
Cruelty to Animals act, 1960.

Its salient features are as follows:

1. Banning of sale of cattle for slaughter at animal markets across the country. Those who wish to
sell cattle can do it only after formally stating that the animals have not been “brought to the
market for sale for slaughter”.
2. Buyers of cattle at animal markets will have to verify they are agriculturalists.
3. District animal market monitoring committee (DAMMC) to be constituted to regulate cattle
markets. DAMMC will be headed by a magistrate.
4. Cruel practices have been prohibited including slaughter, cutting the ears of buffaloes and painting
of horns.
The rules have been criticized on the following grounds:

1. The restriction on trade of cattle or carcasses in livestock

markets is against the fundamental right to occupation,
trade or business under Article 19 (1) (g).
2. The move will cripple the buffalo meat export industry. India
is the second-largest beef exporter in the world.
3. The rules when affected will seriously impact the dietary
choices of millions of people by depriving ordinary Indians’
access to relatively cheap meat.
4. The rules framed for the sale of cattle are very cumbersome.
For example, buyers must verify that they are agriculturists.
Sellers must also declare that the cattle brought to the animal market is not for slaughter.
5. An RTI reply has revealed that the Prevention of Cruelty to Animal (Regulation of Livestock Market)
Rules of 2017 were never placed before the parliament, which the government should have done
before implementing them.

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LAW COMMISSION REPORT NO. 269

Law commission recently released its report titled “Transportation and house-keeping of egg-
laying hens (layers) and broiler chickens”

EXISTING FRAMEWORK GOVERNING HOUSEKEEPING AND TRANSPORT OF POULTRY IN INDIA

ARTHSHASTRA ON ANIMAL WELFARE:
 Indian ethos on animal’s welfare dates back to Kautilya‘s Arthshastra. For example, it prohibited
killing or injuring protected species and animals in reserved parks and sanctuaries; A person
found treating an animal cruelly could be restrained in any manner.
CONSTITUTION:
 Article 21: The Supreme Court in Jallikattu Case, extended the rights guaranteed under article
21 of the Constitution to all living beings.
 DPSP: The State under the Directive Principles of State Policy (DPSP) is mandated to organise
agriculture and animal husbandry on modern and scientific lines: the state is also mandated to
safeguard the forest and wildlife of the country.
 Fundamental Duty: It is the Fundamental Duty of each citizen, under article 51A(g) of the
Constitution, to ―protect and improve the natural environment including forests, lakes, rivers
and wildlife and to have compassion for living creatures.
STATUTES:
 Prevention of Cruelty to Animals Act, 1960 ('PCA Act'):
o It’s objective is to ensure Prevention of unnecessary pain or suffering on animals.
o It lays down responsibilities of the persons in charge of the animals to to ensure their
well-being.
o It provides for setting up of the Animal Welfare board of India (AWBI) to make rules to
ensure that the welfare standards are met and that the animals are not exploited.
 State Laws: Since the protection, improvement of stock and prevention of animal diseases is a
State subject under the Seventh Schedule of the constitution, there are several State specific
statutes such as
o Bombay Diseases of Animals Act, 1948
o Gujarat State Poultry Farm Registration and Regulatory Authority Act, 2007
o Punjab Poultry Production Act, 2016
Five Freedoms
India is a member of World Organization for Animal Health (OIE) which works on universally
recognised principle of Five Freedoms.
According to this concept, an animal‘s primary welfare needs can be met by providing:
1. Freedom from hunger, malnutrition and thirst;
2. Freedom from fear and distress;
3. Freedom from physical and thermal discomfort;
4. Freedom from pain, injury and disease; and

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5. Freedom to express normal patterns of behaviour.

These five fundamental rights have been affirmed by the Supreme Court of India Animal Welfare
Board of India v. A. Nagaraja & Ors (Jallikattu Case)
LAW COMMISSION REPORT NO. 269
 March 2017: In this background, the Ministry of Law and Justice asked the Law Commission of
India to look into the existing laws and international practices on the transport and
housekeeping of poultry birds.
 July 2017: The Commission submitted its Report No.269 titled ―Transportation and House-
keeping of Egg-laying hens (layers) and Broiler Chickens.
 The Law Commission in this report has examined the issues pertaining to both, the layers and
broilers.
RECOMMENDATIONS
Worldwide, the chickens have been commercially trait selected for two reasons, that of egg
production (layers) and meat production (broilers).
The report deals with both the aspects. It recommends that the entire process from housekeeping
to transport to slaughter must be made humane.
BATTERY CAGES:
 Importance: Housing conditions in poultry farming have a significant impact over the
production. But in order to achieve the maximum production, low cost caging techniques even
at the cost of consumer quality standards are rampantly in use.
 Battery cages: The hens used for the production of eggs in the egg industry are reared in small,
barren wire cages called ―battery cages, a name given due to the arrangement of cages placed
side by side.
 Criticism:
o The battery cages are so small that the animals are unable to stand up straight or spread
their wings without touching the sides of the cage or other hens.
o This has led to sore feet, minor and major abrasions, broken bones and other bodily
injuries to the birds. It also increases the risk of diseases in the flock.
 Global scenario:
o All member countries of the European Union (EU) have phased out the use of battery
cages.
o In 2013, Bhutan declared itself a cage – free country.
 Recommendation (Certification of farms):
o Ensure certification of poultry farms by the Animal Husbandry Departments of the
States, where a distinction of produce obtained from cage free egg farming from that
obtained from battery cage farming, is drawn.
o This would enable the consumer to select the produce obtained from healthy farming
and will result in discouraging battery cage farming.
STOCKING DENSITY:
 It is a matter of concern that there is no regulation with respect to stocking density and other
housing conditions. The most common cages hold 5-10 birds.

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 Recommendation: The minimum floor space available per bird should be an important factor
in calculation of maximum stocking density.
ANTIBIOTICS IN FEED
 There are no statutory regulations, at present to prescribe the standard, quality and quantity
of food for poultry in India which leads to rampant use of antibiotics in the poultry feed.
 Thus It is also important that the feed used must be nutrient rich and devoid of antibiotics as it
affects the consumer food quality standard which is required to be maintained across countries.
BROILER CHICKEN
 Meaning: Broiler chickens are bred and raised through trait selection in order to achieve
maximum body weight in the shortest period of time, with little regard for the welfare of the
bird.
 Criticism: Rapid growth of muscle on an infantile skeletal structure makes the broilers prone to
joint, bone and ligament disorders. As a result, these birds suffer from leg deformities and
lameness.
 Scenario in France (Label Rouge chickens):
o It has been noted that the incidence of diseases is markedly reduced in slower growing
broiler chicken strains. France has produced ―Label Rouge chickens.
o These chickens reach slaughter weight at 12 weeks, and suffer substantially lower
incidences of leg disease, low mortality rates despite having a grow-out period that is
twice as long as conventional broiler chickens.
 Recommendations on Broiler Chickens:
o Therefore, slower growing chicken strains may be promoted for broiler production.
o It is desirable that early steps are taken to notify regulations to ensure that trait
selection is not only for production of healthy broiler chickens but also welfare centric.
SLAUGHTERING:
 The law commission found the procedures and standards prescribed in the Slaughter House
Rules, 2001, as well as the FSS Regulations, 2011, satisfactory.
 However, these rules/regulations are violated blatantly in roadside meat shops and outlets.
 Recommendation:
o Ensure strict compliance of these laws by providing for personal responsibility of the
concerned officer for a failure which may be treated as dereliction of duty
o Additionally, a mechanism be developed for imparting training to butchers/slaughter
men so that sanitary practices are followed during slaughter.
REVIEW OF PUNISHMENTS IN PCA ACT
 The rules under the PCA Act 1960, largely suffers from weak penal provisions.
 While the penal provisions pertaining to fine in the Act may have been a sufficient deterrent in
1960, those provisions have lost their significance due to inflation.
 Amend the provisions of the PCA Act to make stringent punishments for inflicting cruelty on
animals.

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CONCLUDING REMARK:
Animal welfare can be assessed by examining two criteria, namely
1. Design criteria: The design criteria describes the quality of the environment or the way in which
animals kept. This includes battery cages, floor space, housing and stocking density etc.
2. Animal-based criteria: Animal-based criteria evaluate the behaviour and physiology of the
animals, including health levels.
These standards have been globally recognised and India too needs to adhere to these standards in
the interest of animal welfare.

COW VIGILANTISM
Supreme court (SC) has passed directions to states to stop attacks by cow vigilantes.
SC’s order:
 It ordered the States and the Union Territories to
Article 256 (Obligation of States and
appoint nodal police officers in every district to prevent the Union)
‘Gau Rakshaks’ as they call themselves, from taking the The first part of the Article says the
law into their own hands. executive power of every State shall
 It told the Centre to uphold its constitutional mandate be so exercised as to ensure
under Article 256 and direct the States to act against compliance with the laws made by
Parliament and any existing laws
the groups. It said the Centre could not remain silent,
which apply in that State.
leaving everything to the States.
The second part explains that the
Background: executive power of the Union shall
extend to the giving of such directions
 SC is hearing a petition filed by Mahatma Gandhi’s
to a State as may appear to the
grandson, Tushar Gandhi, about the lack of Government of India to be necessary
responsibility shown by the Centre and State for that purpose.
administrations as vigilante groups are resorting to
violence against Dalits and Muslims in broad daylight in
the name of the cow.
 The Centre has maintained that violence by ‘Gau Rakshaks’ was a ‘State subject’ and it had no
role to play, though it condemned all forms of violence)

LocalCircles, a social media governance platform conducted its India Corruption Survey
2017 to ascertain citizen experiences with corruption and bribery in the last 12 months.
“The New India by 2022 will be free of corruption” – PM Modi

“At 69 % bribery rate, India is the most corrupt countries in Asia” – Forbes report (September 2017)

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Key findings:

1. 45% citizens paid a bribe in the last 1 year

2. 84% say most bribes paid to local
government departments
3. 51% say no steps taken by state govt. to
reduce corruption
4. Most bribes paid to police, municipality
and for property registration
5. 36% say Bribery is the only way to get
work done
6. Bribery continues despite
computerisation; CCTV a deterrent
7. Reporting corruption is a tough job; only
95 citizens say their state has a functional
hotline for reporting corruption.
For a country which is on path of massive development, these statistics could act as a deterrent for
many foreign investors.

DRAFT RTI RULES, 2017

Opposing the draft RTI rules 2017, Anna Hazare wrote to PM that he will hit the streets if
RTI rules are changed.

Introduction
 The Ministry of Personnel, Public Grievances and Pensions Department of Personnel and Training
has formulated draft RTI Rules, 2017.
 If approved then these Rules would replace RTI Rules, 2012.
 The draft rules were put in public domain in first week of April 2017. It asked for suggestions from
concerned stakeholders to be submitted by 15th April, 2017.
Positive features of draft rules

Issue Draft rules 2017 Remark

Compliance of the A non-compliance communication This a welcome step since applicants
Commission’s may be filed with the CIC in a often find it difficult deal with non-
Order specified format within 3 months compliance of commission’s orders.
from the date of non-compliance. They do not know where to go or who
to approach. This provision lays down
the rules for reporting non-
compliance of the CIC’s orders.
Filing of counter After a complaint or appeal is This is a welcome step since the
statement by received by the CPIO, he/she can applicants will now get to know the
CPIO or appellate file a counter statement pertaining arguments/explanation of the CPIO.
authority to the issue and a copy of the
counter statement should be
served on the applicant who filed
the appeal or complaint.

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Controversial Features of Draft Rules

Complaints to the A complaint under section 18(1) By asking the applicant to file an
commission must be accompanied by a RTI application before a complaint, the
application filed with the CPIO purpose of complaints gets defeated.
along with the proof of service of Asking the applicants to file an
complaint to the respondent application before a complaint makes
within 90 days from the date of the process more complex defeating the
cause of the complaint. purpose of the RTI Act.

Appeal to the CIC Additional documents to be It turns the appeal process into a
submitted to the CIC while filing complex court procedure.
an appeal. In Union of India vs Namit Sharma
(2013), the Supreme Court had ruled
that the information commissions
established under the RTI Act were only
administrative tribunals, not quasi-
judicial tribunals.

Abatement of Proceeding before the CIC hall There have been news about numerous
appeal abate on the death of the attack on whistle blowers. Abating the
applicant. pending proceedings with the CIC will
only increase such attacks because the
information would never have to be
disclosed if the proceedings do not take
place.

withdrawal of an The draft rules empowers the

appeal by CIC Central Information Commission
(CIC) to permit withdrawal of an
appeal if an appellant makes a
written request

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GRIEVANCE ANALYSIS & SYSTEMIC REFORMS

Government released the Department of Administrative Reforms and Grievances
(DARPG)’s Grievance Study Analysis of various Ministries.

BACKGROUND:
 In 2015, the “Grievance Analysis & Systemic Reforms” Study was conducted for 20 ministries.
 In 2017 the study was undertaken in 20 more ministries.

KEY HIGHLIGHTS OF THE STUDIES ARE AS FOLLOWS:

 Number of grievances: The number of grievances lodged has increased 5 times from 2014 (2 lakh)
to 2017 (11 lakh). This is due to the quick response given by the Government to the grievances.
 Time for grievance disposal: The average time taken to dispose the grievance has been reduced
to one week.
 Identifying grievance prone areas: Steps have been taken to identify focus so as undertake
required reforms to resolve the root cause of grievance.
 Monitoring: A Project Management Unit (PMU) has been set up for monitoring these reforms in
consultation with concerned Ministries/Departments.
 Reforms undertaken and proposed:
o As a result of 2015 study, 65 governance reforms were introduced e.g. unavailability of
doctors in all CGHS units has been addressed by introducing Aadhaar linked biometrics.
o 2017 study has also suggested various reforms like sensitise male cops on gender equality
while registering rape complaints; giving Gram Panchayats functionaries field testing kits
for water quality testing.

RECOMMENDATIONS MADE BY SECOND ADMINISTRATIVE REFORMS COMMISSION ON IMPROVING

GRIEVANCE REDRESSAL MECHANISM:

 Analysis and Identify Grievance Prone Areas: Government organizations should proactively
engage in a rigorous and periodic exercise to identifying the grievance prone areas and processes.
Then the government can take corrective measures to eliminate the underlying reason for
generation of grievances.
 Comprehensive mechanism: The grievance redressal mechanism should exist for addressing
o Public grievances as well as
o Grievances of staff members
 Give statutory backing: The Public Grievance Redressal Mechanism should be envisaged in a
statutory form on the line of the Right to Information Act, 2005 which would make it mandatory
on all Organisations to pursue the grievance till their final disposal.
 Designate public grievance officers: The Union and the State Governments should issue directions
asking all public authorities to designate public grievance officers on the lines of the Public
Information Officers specified under the RTI Act.
 Prompt disposal of grievances:
o Fix time limits: All grievance petitions should be satisfactorily disposed of by these officers
within thirty days. Non-adherence to the time limit should invite financial penalties.
o Hold Lok Adalats/Staff Adalats for quicker disposal of grievances.

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 Change in attitude through Award and punishment: Change in the attitude of public servants
towards redressal of public grievances by rewarding good work and punishing the deliberate
negligence.
 Increase awareness among people: Grievance Redressal Mechanism should be well publicized
 Meetingless day: Ministries and departments should observe one day in a week as a meetingless
day so as to focus on grievance aspect.
 Suo Motu redressal actions: Pick up grievances appearing in newspaper columns and take
remedial action on them in a time bound manner.
 Build trust: Citizens must have faith that they will get justice from them it. Thus deal with every
grievance in a fair, objective and just manner.

LATERAL ENTRY INTO CIVIL SERVICES

Prime Minister’s Office has instructed the Department of Personnel & Training (DoPT) to
prepare a proposal for selecting private individuals in civil services.

According to the proposal:

● Posts open for lateral entry: Recruitment will be done mainly at the level of joint-secretary and
above, where there is a dearth of officers.
● Ministries open for lateral entry: Recruitment will be done in ministries dealing with economy
and infrastructure. These appointments would not be for regulating ministries such as Home,
Defence or Personnel.
Should India allow lateral entry for the top positions in government?

● In the past, the Sixth pay commission and Second Administrative Reforms Commission (ARC)
recommended lateral entry i.e. civil servants should compete with domain experts from outside
(academia and the private sector) for specific jobs.
● The Arguments sighted in favour of lateral entry are as follows:
o Lateral entrants bring their own work culture, and this enables renewal and adaptation in
government organizations.
o Introducing competition: The assurance of a secure career offers little incentive to
bureaucrats to outperform others. But when civil servants are made to compete with
outside talent, the lethargic attitude will diminish and efficiency will increase.
o Need of specialists: A judicious combination of domain knowledge and relevant expertise
is a critical requirement in governance. But the training and posting turns IAS officers into
generalists rather than specialists. Lateral entrants from outside will bring the required
specialists.
o Present system of lateral entry is not institutionalized: India is not new to lateral entry,
and the benefits are there for all to see. The chief economic advisor to the Union
government is traditionally a lateral entrant. Some other illustrious examples of lateral
entrants in administrative positions are Vijay Kelkar and Montek Singh Ahluwalia, Nandan
Nilekeni Etc. however, the practice has been ad hoc in nature and not institutionalised.
o International scenario: Western countries like UK, USA, Australia, Holland and Belgium
have already thrown open specific government positions to qualified personnel from all
walks. It has been found to be a better way to attract opposite talents for the job.

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● Other reforms to be carried out with lateral entry:

o Set Up a central civil services authority: However, there is a chance that lateral entry may
turn out to be an excuse for a back-door entry of the ‘spoils-system’ to recruit politically-
aligned persons. For this, the ARC recommended the establishment of a central civil
services authority, an independent authority to supervise the proposed recruitment
process.
o Complement lateral entry with lateral exit: Civil servants should also be encouraged to
move out and work for different sectors on a short-term basis to enrich their knowledge
and enhance their motivation and efficiency. Therefore, lateral exit is as important as
lateral entry.
● Concluding remark:
o For sure, a change of this nature will face stiff resistance from within the IAS lobby.
o However, the government should go ahead with this reform as the national interest is
always greater than the interest of a few.

NEW CADRE POLICY FOR CIVIL ALL-INDIA SERVICES

Union government has finalised a new policy for cadre allocation for All-India services —
Indian Administrative Service (IAS), Indian Police Service (IPS) and Indian Forest Service
(IFoS).
PRESENT SCENARIO:
 Currently, the officers of the three All-India services are allocated a cadre state or a set of states
to work in.
 After fulfilling certain eligibility conditions, they may be posted on central deputation.

NEW CADRE POLICY:

The new policy divides the existing 26 state cadres into five zones. So now, they will have to choose
cadres from a set of zones instead of states.

The 5 zones are:

Zone-I AGMUT (also known as Arunachal Pradesh-Goa-Mizoram and Union Territories),

Jammu and Kashmir, Himachal Pradesh, Uttarakhand, Punjab, Rajasthan and Haryana.
Zone-II Uttar Pradesh, Bihar, Jharkhand and Odisha
Zone-III Gujarat, Maharashtra, Madhya Pradesh and Chhattisgarh.
Zone-IV West Bengal, Sikkim, Assam-Meghalaya, Manipur, Tripura and Nagaland.
Zone-V Telangana, Andhra Pradesh, Karnataka, Tamil Nadu and Kerala.
Candidates can only select one state/cadre from a zone as their first choice. Their second, third, fourth
and fifth choices have to be from the different zones.

OBJECTIVE BEHIND IT:

The new policy will seek to ensure that officers from one zone (e.g. state of Bihar) will get to work in
other zone (southern and north-eastern states), which may not be their cadre of domicile or preferred
cadres. This will ensure:

 National integration of the bureaucracy.

 That officers have varied experiences (thus upholding the rationale behind the all-India services).

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 Experimentation (if the officers work in their own domicile state only then the officers may not be
able to experiment new things).

CRITICAL ANALYSIS:

The new policy has drawn criticism from the serving and retired members of the Indian bureaucracy
who have argued that:

1. Under the current system, while a third of the officials come from the respective states, two-third
are from across the country. Thus, where is the need of the new policy?
2. The new policy would decrease the happiness quotient as many civil servants would feel better in
the present system than the proposed one.
3. It doesn’t address the underlying parochial malice of identity in the services and the nexus that
gets created between the bureaucrats and politicians.

CIVIL SERVICES ANONYMITY IN SOCIAL MEDIA AGE/ CAG+1

PM Modi while addressing civil servants on civil services day delivered the following
three key messages

 Decide without fear,

 Don’t use social media for self-promotion and
 CAG+1

 What he said in context of “Deciding without fear”?

o He said that “If a decision is taken with honest intention for the welfare of public, then
nobody in the world who can raise a finger at you. Something may happen momentarily,
but I am with you”.
 What he said in context of not using social media for self-promotion?
o He called “anamika” or anonymity as one of the greatest assets of civil servants, which
needs to be maintained.
o But he observed that “These days, district magistrates are posting photographs of
themselves administering vaccines at vaccination camps on Facebook.
o He told the gathering that Social media should be used to promote the government’s
schemes, not oneself.
 CAG+1?
o According to him, it means “Civil servants should weigh their decisions from an outcome
point of view, and not on the basis of output”.
o By only concentrate on achieving the numbers then we can get the output, which may
satisfy the CAG’s standards, but we will not get the outcome for welfare of the country
o He remarked that “We can’t achieve change merely through numbers”.

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THE INTER-STATE RIVER WATER DISPUTES

(AMENDMENT) BILL, 2017
Union Minister of Water Resources, River Development and Ganga Rejuvenation
introduced Inter-State River Water Disputes (Amendment) Bill, 2017 in Lok Sabha.
The bill is in conformity with Article 262 of the Constitution, which empowered the Centre
to set up such a mechanism.
Key features of the bill
The bill proposes the following –
 Single Standing Tribunal: A Single Standing Tribunal (with multiple benches) instead of existing
multiple tribunals
 Assessors: Assessors will be appointed to provide technical support to the tribunal. They shall be
appointed from amongst experts serving in the Central Water engineering Service not below the
rank of Chief Engineer.
 Dispute Resolution Committee (DRC): A Dispute Resolution Committee (DRC) to be established
by the Central Government consisting of relevant experts. It will aim to resolve the dispute
amicably by negotiations before such dispute is referred to the tribunal.
 Transparent data collection system: A transparent data collection system at the national level to
be setup for each river basin. For this purpose, an agency to maintain databank and information
system shall be appointed or authorised by the Central Government.
 Time limit: The total time period for adjudication of dispute has been fixed at maximum of four
and half years.
 Final decision: The decision of the Tribunal shall be final and binding with no requirement of
publication in the official Gazette.
 Composition of tribunal: The single standing tribunal shall consist of one Chairperson, one Vice-
Chairperson and not more than six other Members.
o The term of office of the Chairperson is five year or till he attains the age of 70 years,
whichever is earlier.
o The term of office of Vice Chairperson and other member of tribunal shall be co-terminus
with the adjudication of the water dispute.
Reasons behind introducing this bill
 Inter-state river water disputes are on the rise on account of increase in water demands by the
States.
 The Inter State Water Dispute Act, 1956 which provides the legal framework to address such
disputes, suffers from many drawbacks.
 Under this Act, a separate Tribunal has to be established for each Inter State River Water Dispute.
 Only three out of eight Tribunals have given awards accepted by the States, while Tribunals like
Cauvery and Ravi Beas have been in existence for over 26 and 30 years respectively without any
award. Delays are on account of
o no time limit for adjudication by a Tribunal,
o no upper age limit for the Chairman or the Members,
o work getting stalled due to occurrence of any vacancy and
o no time limit for publishing the report of the Tribunal.

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MAHADAYI RIVER WATER DISPUTE

Protests by farmers of Naragund (Karnataka) are continuing for a year. They are
demanding implementation of Kalasa-Banduri Nala Project.

Mahadayi/Mandovi River
 The Mahadayi/Mandovi River is described as the lifeline of the Indian state of Goa.
 It originates from a cluster of 30 springs at Bhimgad in the Western Ghats in the Belgaum district
of Karnataka. Then it enters Goa and finally drains in Arabian sea.
 With its cerulean waters, Dudhsagar Falls and Varapoha Falls, it is also known as the Gomati in a
few places.
 The Mandovi and the Zuari are the two primary rivers in the state of Goa.
o Mandovi joins with the Zuari at a common point at Cabo Aguada, forming
the Mormugao harbour.
o The two rivers are linked by Cumbarjuem Canal.
 Panaji, the state capital and Old Goa, the former capital of Goa, are both situated on the left bank
of the Mandovi.
 The river Mapusa is a tributary of the Mandovi.
 Three large freshwater isles — Divar, Chorao and Vashee are present in the Mandovi near the
town of Old Goa. The island of Chorão is home to the Salim Ali Bird Sanctuary, named after the
renowned ornithologist Salim Ali.
Mahadayi River Water Dispute

 Background
o Mahadayi River flows 35 km through Karnataka and then 52 km through Goa, before
flowing into the Arabian Sea.
o The Mahadayi is essentially a rain-fed river that flows at its peak during monsoon months.
o The regions of northern Karnataka, along with bordering areas of Maharashtra and Goa,
have traditionally been dependent on monsoon rain with little investment made towards
building rain-fed catchment dams to meet drinking and irrigation needs of people of the
area.
o The region depends on Mahadayi river basin that holds around 220 tmcft water, of which
around 200 tmcft flows into the Arabian Sea after passing through Goa.
o Given erratic monsoon patterns over
the years, people of the region have
been demanding drinking water and
water to meet irrigation needs for
agriculture.
 Kalasa-Banduri Nala Project
o In April 2002, Government of
Karnataka announced. The Kalasa-
Banduri Nala is a project to improve
drinking water supply to the Districts
of Belagavi, Dharwad and Gadag.

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o It involves building barrages across Kalasa and Banduri, two tributaries of the Mahadayi
river to divert 7.56 TMC of water to the Malaprabha river.

 Formation of tribunal (2010)

o Since the Mahadayi river is largely rain-fed between months of June through October, any
diversion of waters by Karnataka would adversely affect the water needs of people of Goa.
o Therefore In 2002, Goa had appealed to the central government, under Section 3 of the
Inter-State Water Disputes Act, 1956, for constituting a Tribunal to address and resolve
the Mahadayi river water dispute between Goa and Karnataka.
o In 2010, the central government had constituted the Mahadayi Water Disputes Tribunal
(MWDT).
 Mahadayi Water Dispute Tribunal’s (MWDT) verdict (july 2016)
o On 27 July 2016, in a major setback for Karnataka, the Mahadayi Water Dispute Tribunal
(MWDT) rejected Karnataka’s claim on Mahadayi river water to divert 7.56 tmcft water
from the Mahadayi river basin to Malaprabha river, in order to fulfill the drinking water
needs of people living in border regions of north Karnataka.
o Although the announcement came after completing the hearing from all sides, the final
judgement of the tribunal will take another year.

ASSAM NRC
Recently Assam has published its first National Register of Citizens

Why in news
 3.29 crore people had applied to be included in the list. The draft list contains names of 1.9
crore people as state’s legal citizens.
 This is not final list and remaining names are being verified. The publishing date of the next
draft will be in April, 2018.
 Government has clarified that people missing out on the list should not panic as there will be
further updating to list based on verification.
What is NRC 1951

It is a register which was prepared after the 1951 census.

It covers person enumerated during the 1951 Census.
It includes houses or holdings in serial order and also contains the names and number of
people staying in these.
Background

 Assam had seen illegal immigration since it was made part of British India.
 This inflow continued even after the independence.
 During the Bangladesh independence movement there was a significant increase in the flow
of illegal migrants.
 This inflow of illegal immigrant did not stop after the formation of Bangladesh.
 The Assam Agitation
o It was a popular movement in Assam against illegal immigrants between 1979 and
1985.
o It was Led by All Assam Gana Sangram Parishad (AAGSP) and All Assam Students
Union (AASU).

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o It started when an abrupt increase in the number of voters was observed by election
officials before the Mangaldai by-poll for Lok Sabha held in 1979.
o Their demand was that illegal immigrants should be identified and expelled.
 The Assam Accord
o The agitation ended in 1985 and Assam Accord was signed by the Indian Government
and the AASU-AAGSP leaders.
o According to this,
 Those who had entered Assam between 1951 and 1961 were to be given full
citizenship including the right to vote.
 Those who had entered after 1971 were to be deported.
 Those who came between 1961 and 1971 were to be denied voting rights for
10 years but given all other citizenship rights.
 Therefore the NRC is being updated to include persons or their descendants whose names
were in
o The National Register of Citizenship 1951
o In any of the Electoral Rolls up to the midnight of 24th march 1971
o In any other admissible documents issued up to the midnight of 24th March 1971.
Timeline of events

 Initially there was no expressed demand for updation the 1951 NRC ( though AASU leaders
deny this). Therefore Government of India took no initiative initially in this context .
 Initially Appellate Courts and Tribunals were constituted under
o The Illegal Migrants (Determination by Tribunals) Act of 19833 and
o The Foreigners Tribunal Act of 1964.
 In a tripartite meeting of 2005 between the Centre, AASU and the Assam government, it was
decided that the assam government will complete the process of updation of the NRC within
two years.
 However, subsequently no serious efforts were taken in this regard.
 This issue was again raised in the 2009 review meeting by AASU.
 After the assurance of Assam Government a pilot project was initiated in two revenue circles
– Chayagaon and Barpeta in 2010.
 The pilot project was, however, suspended due to violent protests by All Assam Minority
Students Union (AAMSU). There were allegation of anomalies in the NRC.
 The Supreme Court then took up the matter when the issue was brought before it through
various writ petition.
 In July 2009 during the hearing of a writ petitions by an NGO, the Assam Public Works, the
Supreme Court ordered government to begin the updation of the NRC in Assam.
 The Ministry of Home Affairs then issued the notification in this regard in 2014
 The date for publication of the final draft of the NRC was set as on or before January 1, 2016
initially. But later the Court extended the deadline by two years.
Pros

 The NRC is aimed at detection, detention and deportation illegal immigrants in the Assam.
 It will fulfil the promise made by central government in assam accord.
 It will prevent the demographic change in assam due to influx of illegal immigrant.
 It will help in addressing the security challenges arising from illegal immigrant
 It will help in countering the insurgency in Assam by addressing the major demand of people.

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Concerns

 It may result in a law-and-order problem due to the exclusion of a large number of people
from the list.
 Many of the ethnic people specially tribals do not have suitable documents. This may create
problem for them.
 The Bengali speaking citizens in Assam may face discrimination and even violence. They risk
to be labelled as illegal Bangladeshi infiltrators.
 The electoral rolls are very old and may be incorrect and incomplete.
 There is uncertainty regarding the future of people who may be left out. There is lack of
bilateral agreement between India and Bangladesh regarding the deportation of illegal
migrant and Bangladesh do not readily take them back.
 Individuals who may have entered illegally after 1971 might have children and even
grandchildren by now. India is the only country their children knows now. It gives rise to many
humanitarian concerns
Way forward

 The updation of NRC should be done in a transparent and fair manner.

 People should be provided with sufficient time and resources to prove their claim.
 Effort should be made to sign bilateral agreement with Bangladesh to address the future of
illegal immigrants.

UTTAR PRADESH CONTROL OF ORGANISED

CRIME ACT, 2017 (UPCOCA) DRAFT BILL
Recently, The Uttar Pradesh legislative assembly has passed Uttar Pradesh Control of Organised
Crime Act, 2017 (UPCOCA).
This bill is on the lines of the Maharashtra Control of Organised Crime Act (MCOCA) to combat
organised crimes in the state.

States with similar laws

 Maharashtra has Maharashtra Control of Organised Crime Act (MCOCA) to combat

organised crimes like land mafia, mining mafia.
 There are similar laws in Karnataka and Gujarat as well.

Salient provisions

 Crimes dealt with:

o UPCOCA deals with some of the crimes like land grabbing, money laundering,
smuggling of wild animals, extortion, murder, illegal mining, etc.
 Special provision:
o The UPCOCA law gives special powers to the police to arrest members of the crime
syndicates.
o The accused will not be able to get bail for 6 month if booked under the UPCOCA.
o It has provision for police remand of 30 days for accused.
o It shift the burden of proof from the prosecution to the accused.
o The confession made before the police will be the final.

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o People booked under UPCOCA will be lodged in the high-security area of the jail.
They could meet their relatives only after the approval of the district magistrate.
o It empower the police to intercept communications and present them as evidence.
o It proposes that journalists will require permission before publishing anything on
organised crime.
o The property obtained through crime can be taken over during the course of
investigation.
 Punishment:
o The Bill has provisions for punishment of minimum 7 years and fine of Rs. 15 lakh
minimum.
 Prevention of misuse of the bill
o The cases under it could be filed only on the recommendations of the committee of
divisional commissioner and range deputy inspector general of police.
o Property would be taken over with the permission of the court

Justification of bill

 Status of crime in Uttar Pradesh:

o According to NCRB, Uttar Pradesh tops crime list in India.
o In 2016 highest number of heinous crimes such as murder and against women
occurred in UP.
 Strict provisions will act as deterrent against organised crime. It will help in curbing the
organised crimes in state.
 Organised crimes are closely linked with terrorism as well. This law will help in addressing
the problem of terrorism as well.
 Taking over of property collected through criminal activities will prevent their misuse by
criminals during the course of investigation.

Opposition to bill

 There is opposition to the bill on the ground that its some of the provisions are draconian
o Shifting burden of proof to accused violates the basic principle of innocent until
proven guilty.
o Making confession made before police final and admissible in court contradicts
CrPC, under which only a voluntary confession made before a magistrate is
admissible
o Requirement of permission for journalist is against the freedom of press
 The bill could be misused against opposition politician and can there is fear of using it
against any particular community.

Way forward

 The present situation of law and order in UP makes this act a welcome step. It shows the
seriousness of government in tackling the organised crime.
 However, The focus should be on providing better training and resources to the police and
investigator who are more relevant and effective in tackling crime.

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CRIMINALIZATION OF POLITICS
Supreme Court, in response to a PIL by members of the India Rejuvenation Initiative has
sought details on 1,581 cases involving MPs and MLAs as declared by the politicians at
the time of filing their nominations for 2014 elections. It also asked how many cases were
disposed off within 1 year as per its earlier direction in 2014.
The Apex court (on 1 Nov, 2017) has asked the Centre to come up with a scheme to
establish special courts to try politicians facing criminal cases. Now government will have
to submit its policy and related details within 6 weeks about the amount of money it is
ready to spend to constitute such courts.

Criminalization of politics is defined as “participation of criminals in the electoral processes”.

Evolution of nexus between crime and politics
Three trends – political fragmentation, deepening competition and rise of coalition politics –
converged in the late 1980s to break open the political system in an unprecedented manner. Tactics
like Booth Capturing, bribing the voters, Money and Muscle power enabled Criminals to prove their
win ability to the political parties and get party tickets.

What is the statistics?

As per the analysis by National Election Watch of the affidavits submitted by MPs and MLAs to the
Election Commission of India in 2014, out of the 4835 MPs/MLAs, 1448 have declared criminal
cases against them in a self sworn affidavit filed with the ECI. Out of these 1448 who have declared
criminal cases, 641 MPs/MLAs have declared serious criminal cases like rape, murder, attempt to
murder, kidnapping, robbery, extortion etc.

Reasons for growing nexus between crime and politics

The opportunity to influence crime investigations and to convert the policemen from being potential
adversaries to allies is the irresistible magnet drawing criminals to politics. Other reasons may be
categorized as:

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Social Causes Legal Causes

a) Protection for law-breakers on a) Inordinate delays lasting over years and high
political, group, class, communal or costs in the judicial process, mass withdrawal
caste grounds, of cases, indiscriminate grant of parole, etc.
b) Partisan interference in
investigation of crimes and poor
prosecution of cases
Election funding Competition in Politics
a) Large, illegal and illegitimate a) Political Parties get secured ability to garner
expenditure in elections is another votes through money and muscle power.
root cause of corruption. Actual
expenditure is alleged to be far
higher than formal limits.
b) Accordingly, criminals invest in
elections to make windfall gains
upon winning.
Statutory loopholes
a) Section 8(1), 8(2), and 8(3) of the RPA, 1951 provide grounds of disqualification for any
person who is convicted and given varying range of imprisonment, for a period of 6 years
from the date of his release from prison.
b) Section 8(4) states that if a sitting member of Parliament or state legislature is convicted
and sentenced to not less than 2 years of imprisonment shall be disqualified from being
member of house.
c) However, if the member goes on appeal against his conviction within 3 months, then he
shall not be subject to disqualification.
What are the ramifications of this
Criminals becoming political leaders have multifaceted adverse effects like

•Decreasing morale of •People loose faith in

bureaucracy democracy
•Corrosion of values in •Law-breaker make
governance. plaible law for law
breakers

Administration Society

National
Economy
Integrity

•Corrodes India's image of a

responsible democracy •Generates Black
•Criminal elements serve self money and Parallel
interest and nation building takes a Conomy
back seat

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Steps taken to decriminalize politics

i) The Supreme Court in Lily Thomas vs. Union of India (July, 2013) held Section 8(4) as
unconstitutional and void. Hence, now if a sitting member of Parliament or state
legislature is convicted and sentenced to not less than 2 years of imprisonment, he
will get immediately disqualified from being member of house.
ii) In Public India Foundation Case (March, 2014), SC ruled that criminal trials, especially
those dealing with corruption and heinous offences, involving election
representatives should be completed in a year.
iii) None of the Above (NOTA) option was introduced in the PUCL vs Union of India, 2014.
The SC also said:
“Giving right to a voter not to vote for any candidate while protecting his right
of secrecy is extremely important in a democracy……. Gradually, there will be a
systemic change and the parties will be forced to accept the will of the people and field
candidates who are known for their integrity.”

iv) Introduction of Electronic Voting Machine (EVM) by the Election Commission (EC)
v) Improvement in accuracy of electoral rolls through computerization and fair revision
process, voter id cards
vi) Disclosure of antecedents of candidates – criminal record, assets and liabilities
vii) Disqualification of persons convicted of criminal offence
viii) Strict implementation of Model Code of conduct.
ix) And now the latest SC verdict on setting up special mechanism for trial of lawmakers

Some committees and reports

1993 – Vohra Committee Report on criminalization of politics
1998 – Indrajit Gupta Committee on State Funding of Elections
1999 – Law Commission Report on Reform of the Electoral Laws
2004 – Election Commission of India – Proposed Electoral Reforms
2008 – The Second Administrative Reforms Commission
2011 – NEW Recommendations for Electoral Reforms [submitted to Law Ministry & Election
Commission of India]

Further Recommendations
1. Recently EC suggested to impose life-time disqualification of politicians convicted in criminal
cases
2. EC also suggested disqualification of candidates charged for serious crime (where minimum
punishment by law is not less than 5 years) and where charges have been framed by a court
of law.
3. There is also a suggestion to replace the First past the post system with the 2 ballot system
where 50% of the valid votes polled will be the minimum criteria for winning. If no candidates
get 50% of the votes then the first 2 candidates with the largest share of votes will contest
second round of polling and the one who gets 50% or more votes will be declared as winner.

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4. Use of totalisers in counting of votes polled through EVM so that booth wise voting pattern
remains undisclosed. Totaliser allows the votes cast in about 14 polling booths to be counted
together. At present, the votes are tallied booth by booth.
5. Partial State funding of elections mainly in kind as suggested by Indrajit Gupta Committee may
reduce the role of money power in elections.
6. Greater powers to EC eg: making false declaration before the returning officer an electoral
offence under section 31 of the RPA.
7. Media reforms to make the media more accountable in what it reports and making the
ownership more transparent along with relevant disclosure of any conflict of interest.

International examples on how to deal with criminalization of politics and politicization of crime
Switzerland is one of the leaders in clean politics. Some of the possible causes for this may be:

1) Switzerland doesn’t have career politicians. Citizens serve for a time but also work
independently. That avoids the pet projects, the influence peddling, and conflicts of interest
that can result when you have a separate, professional long serving political class.
2) The country is so decentralized, decisions tend to be practical and informed by the needs of a
small area, so there’s less lost in translation to higher authorities.

PRIVATE MEMBER BILLS

In the winter session of Lok Sabha, 2017, 98 Private Members’ Bills were introduced on
issues ranging from protection of stray cows to including work under fundamental
rights.

What is a private member bill?

 Members of parliament other than ministers are called private members and bills presented
by them are known as private member's bills.
 Introduced by:
o A private member bill can be introduced by both ruling party and opposition MPs.
o A private member can give a maximum of three notices for the introduction of Private
Members Bills during a Session.
 Type of Private Members’ Bills:
o A private member can introduce bills on issues of general import, Constitution
Amendment Bill, Financial Bill, or Money Bill.
o However, for Money Bill, prior recommendation of President, hence, the
consideration of the Council of Ministers is needed, and is generally deemed as the
Government Bill only.
 Power of president: President can use his powers of absolute veto and can discard a private
member bill.
 Procedure:
o It can be introduced in any of the Houses of the parliament after giving prior notice of
one month.
o The Bill undergoes the normal procedure of passing through three readings in both
the Houses.

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o However, unlike Government Bills, Private Members' Bill does not go to the other
House after passage. It will become law only if the government moves a Bill on the
issue and gets the President assent.
 Time allocated: Two and a half hours on every alternate Friday are set aside for these Bills in
the Lok Sabha.
 Committee on Private Members Bills and Resolution, Lok Sabha:
a) It consists of 15 members and the Deputy Speaker is its Chairman.
b) The Committee is nominated by the Speaker and holds office for one year.
c) It allocates time to Private members’ Bills and Resolutions, examines them before
their introduction, classifies them, and examines the Private Constitution Amendment
Bills.

Difference between private member bill and government bill

Critical analysis

 Not many have been passed:

o Only 14 private members’ bills have been passed since independence.
o The Rights of Transgender Persons Bill, 2014, is the first private member's bill to get
passed in the Rajya Sabha in the past 45 years.
o The last Private Member's Bill to get passsed by Parliament was the Supreme Court
(Enlargement of Criminal Appellate Jurisdiction) Bill, 1968.
 Not given due consideration:
o In the 15th Lok Sabha, 372 private members’ bills were introduced and only 4% of
them were discussed leading to lapse of 96% of them without a debate in the House.
 Challenges
o Requirement of one-month prior notice for introduction in the House of Parliament.

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o Selection of the name in the ballot by the member, and the President's
recommendation, if the Bill involves financial implications, is must.
o Support of the majority of the House and hence, that of the Government and Treasury
benches is essential to become a law.
o Requirement of a lot of research work for initiating a Private legislative proposal, and
discussing it in the House.
o Opposition to the Motion of Introduction by the House, eg. A Private Member’s Bill
on section 377 of Indian Penal Code.
o Failure to get assurances from the government when the private members’ concept
is not acceptable to it.
 Importance in a democracy
o The parliament is the principal
legislating authority and the
Members of Parliament (MPs)
are authorized under Article
245 of the Indian Constitution
to formulate laws for the
country.
o Through a private members
bill, an MP can attract media
attention on an issue and
pressurize the government for
making a law on that matter,
depending upon the political and socio-economic scenario, henceforth.
o They expedite government legislation on important matters, eg. Immoral Trafficking
Act, 1956 was enacted following a private member’s bill on the same.
Conclusion
 Chances of passage of a Private Members’ legislation depend upon its quality, and the issue
that it seeks to raise.
 Private Members have shown keen interest in initiating proposals, and formulating legislation
despite the odds that they face.
 An important issue stimulates debate, creates awareness and develops public opinion on it,
and pressurizes the government to either extend its support to the Bill or enact a law on the
matter after due consideration. Many such Bills have, actually, been passed as law.
 Despite lacking broader perspective on issues, being less comprehensive at times, and having
the constraints on them, they lead to discussions in the House, get assurances from the
government for comprehensive legislation on important matters.

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DEMOCRATIC RECESSION?
Pew Report on Democracy
In October 2017, Washington-based think tank Pew Research released its report, titled
“Globally, broad support for representative and direct democracy.” The report was
based on a survey conducted in 38 countries.

GLOBAL OPINIONS ON POLITICAL SYSTEMS

 The survey found reasons for optimism as well as concern about the future of democracy around
the world.
 In every nation polled, more than half said representative democracy is a very or somewhat good
way to run their country.
 But the survey also found openness, to varying degrees, to some nondemocratic forms of
government such as Technocracy (Rule by Experts), Rule by a Strong Leader and Rule by Military.
 At the same time, majorities in nearly all nations also embrace direct democracy that places less
emphasis on elected representatives. This idea is especially popular among Western European
populists.
 Thus it can be said that there is a “Shallow commitment to representative democracy”.

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INDIAN OPINIONS ON POLITICAL SYSTEMS

Factors:

 A number of factors affect the depth of the public’s commitment to representative democracy
over nondemocratic options.
 People in wealthier nations and in those that have more fully democratic systems tend to be
more committed to representative democracy.
 And in many nations, people with less education, those who are on the ideological right and
those who are dissatisfied with the way democracy is currently working in their country are more
willing to consider nondemocratic alternatives.

DEMOCRATIC RECESSION?
INTRODUCTION:
 Founding co-editor of the Journal of Democracy Larry Diamond wrote a 2015 paper, "Facing up
to the Democratic Recession."
 Following decades of expansion since the 1950s, it was believed that democracy had definitively
defeated its two main rivals, fascism and communism.
 However, of late, Liberal democracy is in retreat across the globe and there is fear that the
global democratic recession may turn into a global democratic depression.
 He asks, "Why have freedom and democracy been regressing in many countries? The answer
in brief is, bad governance." But this tells us very little. How and why has governance been so
bad?

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REASONS:
The following factors and not just one are the reasons for the "bad governance": Globalization,
Immigration, Populism, Inequality, The Iraq War and its legacy, China, and the economic
recession.
a) Globalization, Immigration, Populism and Inequality:
 These four phenomena are tightly interrelated.
 Part of globalization is trade along with flow of people across the border, whether as travellers
or refugees, then lives are touched and customs challenged.
 When the gap between rich and poor yawns then lower- and middle-income, less educated
people who feel their lives and jobs are threatened by immigrants and low-wage workers in
other countries.
 Then the populists call for a strongman. This is clear from both Brexit and Donald Trump's
victory,
b) Rise of China:
 By demonstrating that advanced modernization can be combined with authoritarian rule, the
Undemocratic Chinese regime has given hope to authoritarian rulers everywhere."
 Wont poor African countries follow china from which it receives aid and investment and
survived economic recession.
c) Legacy of Iraq War:
 Iraq War did a great damage to America's global soft power -- and to the credibility of the West's
democratic mission."
 And with the coming of Donald Trump, the damage continues. At a moment when ISIS is on the
military retreat in Iraq and Syria, Trump has made their drive for fresh recruits much easier.
A BRIGHTER HORIZON?
 Yet the picture is not entirely bleak.
 While the performance of democracy is failing to inspire, authoritarianism faces its own steep
challenges. There is hardly a dictatorship in the world that looks stable for the long run.
 Information revolution is undermining all forms of authority and empowering individuals.
 Values are changing, with move towards greater distrust of authority and more desire for
accountability, freedom, and political choice.
 In the coming two decades, these trends will challenge the nature of rule in China, Iran, and the
Arab states.
 It is vital that democrats in the established democracies not lose faith. With more focused,
committed, and resourceful international engagement, it should be possible to help democracy
sink deeper.

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