indian polity mains 2017 important topics - NEOIAS

101 downloads 125 Views 1MB Size Report
The Bill also provides for transparent data collection system at the national level for each ..... (a) One more step tow
 

0484-3190310 9446331522 9446331522

INDIAN POLITY MAINS 2017 IMPORTANT TOPICS 1. HIGHWAY LIQUOR BAN WHAT IS THE ISSUE Supreme Court had ordered that from April 1, the States and the Union Territories were to shut all liquor vends — shops, bars and restaurants — situated within 500 metres of the outer edge of National or State Highways. The directive was clear that no liquor vend should be visible and directly accessible from a highway. The States were also barred from granting fresh licences for liquor sale along the highways. Further, the ban on liquor vends extended to highways passing through a city or town. The court has given some exemptions to Sikkim, Meghalaya and Himachal Pradesh. It also held that areas with a population up to 20,000 may have liquor vends at a distance of 220 metres from the highways.

BACKGROUND FOR THE JUDGEMENT The ban order was based on a Supreme Court judgment on the petition delivered by a three-judge Bench on December 2016 in the State of Tamil Nadu vs K. Balu case. The judgment cited the following facts: 

Official statistics showed that in 2015, there were 5,01,423 deaths due to accidents and 16,298 or 3.3 per cent of the total were due to drunken driving.  The National Road Safety Council, (established under the Motor Vehicles Act, 1988) had recommended (in 2004) that liquor shops should not be given licences along the National Highways. This was followed up by a Road Transport and Highways Ministry’s circular to all State governments, advising them to remove liquor shops situated along the National Highways and not to issue fresh licences.  A Model Policy, formulated by the Union of India in 2005, provided for a ban on retail liquor shops within 100 metres of any religious or educational institution or hospital and 220 metres from the middle of national or state highways. The decision was made by the apex court under Article 142 of the Constitution (a provision that enables it to pass the orders to do “complete justice”.

WHY A CASE OF JUDICIAL OVERREACH??  The scheme of the Constitution mandates for separation of powers between the executive, the legislature, and the judiciary, and places policymaking firmly in the domain of the executive. For this reason the Supreme Court’s order has come under criticism. Apart from the consequences of the ban, it has been argued that banning alcohol and micromanaging the distance from the highways where alcohol cannot be sold (distance of 220m more than doubled to 500m) is a classic example of policymaking, and that the Supreme Court has indulged in “judicial overreach”.  To impose prohibition, fully or partially, is the sole prerogative of each state under Entry 8 of List II of Schedule VII of the Constitution and even Parliament cannot direct any state as to NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 1

when and where liquor can be sold. By imposing a nation-wide uniform ban of 500 metres with minor exceptions, the Supreme Court has really substituted all state laws with its own limits and other directions.

RECENT CLARIFICATIONS: •



The Supreme Court, in July, observed that there may be nothing wrong in denotifying particular stretches of highways running inside city limits as city roads and such declassification does not violate its order that national and State highways across the country should be liquor-free zones. The Supreme Court later also clarified that the ban on sale of alcohol within 500 meters of state and national highways does not apply within city limits.

CONSEQUENCES:  State governments would have to face huge loss in revenue. The loss to states is estimated to be around ₹50,000 crore in overall tax revenues.  Adversly impact the employment opportunities. Even if less than 5 per cent of the jobs in the travel and tourism sector are affected, it could amount to 1.5 million jobs.  Affect the hospitality sector and tourism potential of many parts of the country. The uncertainty of India’s business climate will also deter investment in these sectors.  Following the ban, States are now downgrading highways into ‘urban roads’ or ‘major district roads’. This can compromise the safety and quality norms of the roads and also add more responsibilities on local bodies (already short of resources).  Illegal liquor vends are also likely to flourish along highways.

WAY FORWARD: A global leader in road fatalities, second only to China, India needs to consider better ways to deal with over speeding and drunk driving. However, there is little evidence to support the view that a ban is the solution to the undoubted menace of drunken driving. Needed measures are:  Stricter enforcement of current laws against the behaviour of drunk driving. A ‘zero tolerance’ approach to drunk driving has shown positive results wherever it has been enforced adequately, such as in Mumbai.  On highways, tougher and more frequent patrolling, alongside faster prosecution of cases and strict punishments for the guilty needs to be ensured. Deterrence lies not in the removal of temptation, but the certainty that offenders will be identified and penalised.  As in western nations, punitive fines and suspension of the right to drive for significant periods, or even for life, need to be placed. Last week, the Union cabinet cleared amendments to the Motor Vehicles Act raising the fine for drunk driving to Rs 10,000. If a drunk driver causes death in an accident, the charge shall no longer be mere negligence but be escalated to culpable homicide. These steps establish the seriousness of the government, and yet they are baby steps. Rs 10,000 fine is low in comparison with the damage that drunk driving causes on innocent lives. And with repeat offenders, it is more important to take them off the roads before they can cause damage.

TO THE LARGER QUESTION OF PROHIBITION: Alcohol addiction has both adverse health and social consequences, as diverting the resource away from basic necessities such as food and shelter affects the welfare of other members of the household, especially children and women. In poorer States like Bihar, the justification for prohibition is even stronger as alcoholism among men from the economically vulnerable sections is even more harmful, leading to economic ruin of their families. NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 2

However, the analysis of the blanket ban on the consumption and possession of alcohol in Bihar has not been encouraging. The reports of loss of lives following the consumption of spurious liquor, increase in recording of cases of substance abuse confirm the analysis. The shortcomings of the decision on prohibition are:  The lack of proper evaluation of the consequences of the prohibition. The capacity of the state health machinery to handle the complications of prohibition in its aftermath, including withdrawal symptoms and alcohol being replaced by drug abuse, law enforcement etc were not properly evaluated.  De-addiction centres: These centres lack the services of a psychiatrist. And also, most of such clinics are located in district headquarters and addicts in villages, most of who are from poor families, lack the wherewithal to visit them on a sustained basis.  The way alcoholics are treated in the country: While addiction is a health condition, the general emphasis is on treating it as a moral problem.

WAY FORWARD: Alcoholism as a social evil should be best tackled gradually rather than heavy-handed State interventions such as prohibition or court-ordered bans. An example is the latest Kerala policy on Liquor that emphasise on voluntary abstinence than prohibition. It had also raised the legal drinking age from 21 to 23. Also needed is a vigorous campaign about the ill-effects of being addicted to alcohol (as opposed to one that makes liquor scarce and encourages bootlegging), in cooperation with the civil society. Opening up of well equipped de-addiction centres at the right locations should also be ensured, to resolve the issue of accessibility by those in rural areas.

2. INTER STATE RIVER WATER DISPUTE TRIBUNAL CONSTITUTIONAL PROVISION ON DISPUTES RELATING TO WATERS: Article 262 provides for a specific law to be enacted by Parliament to adjudicate these disputes relating to waters of inter state rivers or river valleys; excluding the jurisdiction of all courts, including the Supreme Court. NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 3

Accordingly, The Inter State Water Dispute Act, 1956 was enacted. However, the Act 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 no time limit for adjudication by a Tribunal, no upper age limit for the Chairman or the Members, work getting stalled due to occurrence of any vacancy and no time limit for publishing the report of the Tribunal.

WHY IN NEWS: Proposing of The Inter-State River Water Disputes (Amendment) Bill, 2017.

THE INTER-STATE RIVER WATER DISPUTES (AMENDMENT) BILL, 2017: OBJECTIVE: To streamline the adjudication of Inter-state River water disputes and make the present legal and institutional architecture robust.

PROVISIONS:  A Single Standing Tribunal (with multiple benches) instead of existing multiple tribunals.  Member Composition: The tribunal shall consist of one Chairperson, one Vice-Chairperson and not more than six other Members. While the term of office of the Chairperson is five year or till he attains the age of 70 years, whichever is earlier, the term of office of Vice Chairperson and other member of tribunal shall be co-terminus with the adjudication of the water dispute.  The appointment of Assessors 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.  The total time period for adjudication of dispute has been fixed at maximum of four and half years.  The decision of the Tribunal shall be final and binding with no requirement of publication in the official Gazette.  Introduce mechanism to resolve the dispute amicably by negotiations, through a Dispute Resolution Committee (DRC) to be established by the Central Government consisting of relevant experts, before such dispute is referred to the tribunal.  The Bill also provides for transparent data collection system at the national level for each river basin and for this purpose, an agency to maintain data-bank and information system shall be appointed or authorized by Central Government.

POSITIVES:  A permanent tribunal to adjudicate river water disputes between States will undoubtedly be a vast improvement over the present system of setting up ad hoc tribunals.  Provide for speedier adjudication.  An expert agency to collect data on rainfall, irrigation and surface water flows. This acquires importance because party-States have a tendency to fiercely question data provided by the other side.  Proposal to notify tribunal awards automatically avoids delay. Earlier, the requirement of Centre to notify the order of tribunal to bring it into effect had resulted in delays. For instance, the notifying of Krishna award took three years. NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 4

NEGATIVES:  The orders of the tribunal are most often challenged in the Supreme Court. In a landmark verdict, the Supreme Court ruled that it had unfettered power to hear an appeal arising from a river water dispute tribunal under Article 136 of the Constitution. Thus, finality and enforcement of a tribunal’s award may remain elusive.  The “final and binding” nature of the verdict has been questioned on the backdrop of the reluctance shown by the States to accept the decisions of these tribunals.  Criticisms on states not been taken into account on the Bill, could affect the effectiveness of the new Act, when enacted.

WAY FORWARD:  The provision for Dispute Resolution Committee is a welcome initiative. But its benefits will depend on the mechanism’s efficiency. The bill says the Centre will set up the DRC with “members from such relevant fields, as it deems fit, for resolving the disputes amicably”. But the DRC’s functions — recording data, noting stands and claims of states and reporting facts — hint at the usual techno-legal procedures followed by tribunals in the early stages of adjudication. Unless the DRC is adequately high profile and commands credibility and legitimacy to engage proactively for negotiated settlement between states, it may be relegated to performing perfunctory procedures.  The national data gathering agency should maintain a realistic, dependable assessment. Also that data should be periodically updated.  Clarity needs to be brought in regarding the cases where tribunal awards can be challenged and the consequences of non-compliance by states also need to be specified.  Recently, tendencies to politicise the river water disputes has been happening. Instead of politicising, the humanitarian dimension (which includes the agrarian problems worsened by drought and monsoon failures) of the water disputes need to be considered. There must be a sense of responsibility in states to consider these aspects. The disputes should be depoliticised and there must be political will among the states, to make the institutional mechanisms work.

3. ELECTION COMMISSION OF INDIA Constitutional bodies are those that are mentioned in the Constitution. They derive their powers from the Constitution.

ELECTION COMMISSION OF INDIA CONSTITUTIONAL PROVISIONS

• Article 324: broadly speaks of the functions of EC and its composition. INDEPENDENCE OF THE ELECTION COMMISSION

• Security of tenure: 6/65 years, whichever is earlier. • Removal: Manner and on the grounds as a Judge of the Supreme Court (on the basis of a resolution passed to that effect by both the Houses of Parliament with special majority, either on the ground of proved misbehaviour or incapacity). Thus, he does not hold office till the pleasure of the president, though he is appointed by him.

• Any other election commissioner or a regional commissioner cannot be removed from office except on the recommendation of the CEC. NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 5

• The service conditions of the CEC cannot be varied to his disadvantage after his appointment.

POWERS AND FUNCTIONS OF THE ELECTION COMMISSION It can be classified in to three categories: Administrative, Advisory and Quasi-judicial.

ADMINISTRATIVE FUNCTIONS

• Powers of superintendence, direction and control of the elections to the offices of the President and Vice-President, both Houses of the Parliament and both Houses of the State Legislature.

• ECI appoints the following:  Chief Electoral Officer: ECI in consultation with State/UT appoints her to supervise the election work in the State/UT.  District Election Officer.  Returning Officer: for each assembly and parliamentary constituency. She may be assisted by one or more Assistant Returning Officers (again appointed by ECI).  Electoral Registration Officer: for the preparation of Electoral rolls for a parliamentary/ assembly constituency.

• To prepare and periodically revise electoral rolls and to register all eligible voters • To supervise the machinery of elections throughout the country to ensure free and fair elections.

• To notify the dates and schedules of elections and to scrutinise nomination papers. • To register political parties for the purpose of elections and grant them the status of national or state parties on the basis of their poll performance.

• To grant recognition to political parties and allot election symbols to them • To act as a court for settling disputes relating to granting of recognition to political parties and allotment of election symbols to them.

• To enforce the Model Code of Electoral Conduct that is mutually agreed upon by the political parties.

• To prepare a roster for publicity of the policies of the political parties on radio and TV in times of elections.

• To enforce limits on expenditure on elections. • It has the power to postpone or order re-polls or cancel elections in the event of rigging, booth capturing, violence and other irregularities.

ADVISORY FUNCTIONS

• To advise the President and the Governor on matters relating to the disqualifications of the members of parliament and members of the state legislature respectively. The opinion of the Commission as given to the President or the Governor is binding.

• Cases of persons found guilty of corrupt practices at elections which are dealt with by SC and HC are also referred to the Commission for its opinion on the question as to whether such a person is to be disqualified and, if so, for what period.

• To advise the president whether elections can be held in a state under President’s rule in order to extend the period of emergency after 1 year.

NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 6

QUASI-JUDICIAL FUNCTIONS

• The commission has the power to disqualify a candidate who has not lodged an account of his election expenses within the time and in the manner prescribed by law. The commission also has the power to remove/reduce the period of such disqualifications and any other disqualification under the law.

• It has quasi-judicial jurisdiction in the case of settlement of disputes between the splinter groups of a recognised party.

ELECTORAL REFORMS •





Model Code of Conduct  Guidelines as to how political parties and candidates should conduct themselves during elections.  Ministers and other authorities cannot announce any financial grant, make promises of construction of roads, and carry out any appointments in government and public undertakings which may have the effect of influencing the voters in favour of the ruling party. Disclosure of antecedents by candidates  EC on the direction of the Supreme Court, issued an order under Article 324 that each candidate must submit an affidavit regarding the information of his/her criminal antecedents; assets (both movable and immovable) of self and those of spouses and dependents as well; and qualifications at the time of filing his/her nomination papers for election to the Lok Sabha, the Rajya Sabha and the State Legislative Assemblies.

Registration of Political Parties  To eliminate the mushrooming of parties.  The Commission now registers a party which has at least 100 registered electors as its members and is also charging a nominal processing fee of Rs 10,000 to cover the

NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 7

 administration expenses which it will have to incur on correspondence with the parties after





• • • • •

their registration.  Commission requires them to hold their organizational elections regularly in accordance with their constitutions. Checking criminalisation of politics  The candidates to an election are obliged to submit an affidavit in a prescribed form declaring their criminal records, including convictions, charges pending and cases initiated against them. Limits on election expenses  EC has fixed legal limits on the amount of money which a candidate can spend during the election campaign.  The contestants are also required to give details of expenditure within 30 days of the declaration of the election results. Introduction of Electoral Voting Machines Computerisation of electoral rolls Introduction of NOTA Ban on transfer of election officers on the eve of election. Recent collaboration with Facebook to enrol new electors as a part of EC Campaign: ‘No voter to be left behind’.

CRITICAL ANALYSIS • • •

The constitution has not prescribed the qualifications (legal, educational, administrative or judicial) of the members of the Election Commission. The constitution has not debarred the retiring election commissioners from any further appointment by the government. The Constitution has not specified the term of the members of the Election Commission.

RECENT ISSUES: (1) EVM ADVANTAGES OF EVM: • Counting of votes: more fast and accurate. • Tamper proof. • Control of costs. • Levels of crime have declined: as parties no longer need to nurture goons to influence the political process. • Solves several logistical issues • Environment conservation Recently, the credibility of EVMs has been questioned. However, the Commission have itself made it clear that it is technologically and administratively impossible to interfere with the functioning of an EVM. EVMs used are stand alone, non-networked, one-time programmable machine which is neither computer controlled nor connected to the internet and therefore, cannot be hacked. The various safeguards in place to make EVMs fully tamper proof are: (1) Software and technical safeguards (2) Administrative security measures (3) Independent technical oversight NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 8

(1) Software and technical safeguards: The task of making the machines has been given exclusively to two central public sector undertakings, BEL and ECIL, which are entrusted with developing high security defence equipment. The software used is burnt into a one-time programmable/masked chip, so that it cannot be altered or tampered with. The machines are not networked either by wire or by wireless with any other machine or system. Therefore, there is no possibility of data corruption by hacking. The software for this chip is developed in-house by BEL and ECIL independently. The software development team is separate from the production team and reports directly to the CMD. Samples of EVMs from production batches are regularly checked by the quality assurance group which is an independent group within BEL and ECIL. (2) Administrative security measures: include full proof custody at all stages, frequent checks, storing the sealed EVMs in secured strong room. (3) Independent technical oversight: an independent Technical Advisory Committee of five professors of top IITs. The EC does not take a single technology decision without their scrutiny and approval. Judicial scrutiny: The functioning of the ECI-EVMs has been challenged before several high courts. The courts examined technicians and computer experts who were either produced by the parties or summoned by the court itself. All the courts were satisfied about the non-tamperability of the ECI-EVMs. The highest judicial examination was by the apex court (SC 2013, Subramanian Swamy vs ECI). It was contended that to make EVMs completely tamper-proof and transparent, a voter verifiable paper audit trail (VVPAT) is essential.

VOTER VERIFIABLE PAPER AUDIT TRAIL: A Voter-verified paper audit trail (VVPAT) unit provides feedback to voters using EVMs for voting. The VVPAT functions as an independent verification system for EVMs and allows voters to verify that their votes are cast as intended.

BENEFITS:

• Easier to audit should the vote be challenged later. • Additional feedback: The use of VVPAT gives the voter an opportunity to challenge her/his votes on the basis of the paper receipt for the first time.

• Enhance the public confidence in elections. The Election Commission is undoubtedly one of India’s most effective institutions and deserves credit for conducting elections smoothly. It also needs support when it tries to introduce reforms. In this context, both government and opposition parties can help. The government should ensure the release of necessary resources for its introduction and; opposition, by ending the long standing tradition of losing parties trying to undermine an election’s legitimacy with allegations that EVMs were tampered. India’s political parties must be more responsible.

(2) APPOINTMENT OF ELECTION COMMISSIONERS: Present procedure: The appointment of the chief election commissioner and other commissioners shall be made by the president. Law Commission recommendation: The law panel, in its March 2015 report on electoral reforms, had recommended that the appointment of all election commissioners, including the CEC, should be made by the President in consultation with a three-member collegium or selection committee, consisting of the Prime Minister, the Leader of the Opposition of the Lok Sabha (or the leader of the largest opposition party in the Lok Sabha) and the Chief Justice of India. NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 9

Supreme Court observation: The Apex court has been pushing the government to make the appointment of top officials in poll panels more transparent and consensual. Court further noted that the present rules are silent on what should be the qualification of a candidate and also on the criteria of such appointments. Government stand: No proposal to introduce a ‘collegium’ system to appoint election commissioners.

EC’S PROPOSALS: 1. Reforms to cleanse the electoral system (debarring criminally tainted politicians from contesting, checking money power, empowering the EC to deregister defunct and dubious parties) 2. Reforms to make the EC stronger and more independent (appointment of election commissioners through a collegium, their elevation to CEC on the criterion of seniority and their protection from the removal only through impeachment as available to the CEC. 3. Reforms to make the electoral system more efficient (introduction of totaliser machines to prevent the disclosure of polling patterns in a polling booth).

4. SECTION 123 OF THE REPRESENTATION OF PEOPLE’S ACT, 1951 INTRODUCTION • •

Section 123 categorises certain practices as corrupt practices. Section 123(3) of the Representation of the People Act defines a corrupt electoral practice as follows: “The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community....”

THE QUESTION BEFORE THE SUPREME COURT • •

Did the word “his” in section 123(3) qualify only the electoral candidate (and his agent, or persons speaking with his consent)? Or did it also qualify the person to whom the appeal was addressed (the elector)?

JUDGEMENT:  Supreme Court held that as per section 123 (3) of RPA seeking votes in the name of religion, caste, race, community and language is a corrupt practice and extends to the electorate as well who vote on the basis of community/religion.  Thus, now election candidates cannot seek votes on the grounds of the religion, caste, creed, community or language of voters.

MAJORITY VIEW: (1) The state being secular in character cannot identify itself with any one of the religions or religious denominations. This necessarily implies that religion cannot play any role in the governance of the country which must at all times be secular in nature. (2) The law was trying to achieve the purity of elections, and that the purity of elections required that appeals to caste, religion, language, and community be kept out of the electoral process. (3) The majority also looked into the legislative history behind the section, holding that its basic purpose was to “curb communal, fissiparous and separatist tendencies”. Therefore, to restrict Section 123(3)’s prohibition only to electoral candidates would be contrary to public NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 10

interest. (4) An election that was fought and decided on these issues was a distortion of democracy.

DISSENTING VIEW: (1) Religion, caste and language are part of the central theme of the Constitution to produce a just social order. (2) Religion, caste and language are symbols of social discrimination imposed on large segments of our society. (3) To hold that a person who seeks to contest an election is prohibited from speaking of the legitimate concerns of citizens that the injustices faced by them on the basis of traits having an origin in religion, race, caste, community or language would be remedied, is to reduce democracy to an abstraction.

IMPLICATIONS: POSITIVE IMPLICATIONS: (a) One more step towards cleansing the Indian politics which has been affected by caste and religious overtones. (b) Socio-economic development will become the main agenda of elections as against garnering votes in the name of religion, caste, community etc., which will eventually improve the governance of the country. (c) The verdict would further promote peace and harmony between people and reaffirm the principle of Secularism enshrined in the Constitution. (d) Judgement gives more power to the Election Commission by empowering it to disqualify candidature (as recommended by the 2nd Administrative Reforms Committee), and thereby ensure a free and fair election.

NEGATIVE IMPLICATIONS: (a) Prevent candidates from raising genuine concerns. For instance, campaigning for Dalit empowerment. (b) Such restrictions violate the right to free speech, which is a Fundamental Right. NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 11

(c) More uncertainties have surfaced; regarding political parties based on thoughts and ethos of one or other religion or caste groupings. (d) Raises questions on its efficacy especially the implementation of the verdict. (e) The judgement has also been viewed as case of judicial activism and overreach.

WAY FORWARD: The Supreme Court verdict has far reaching implications. But the implementation of the judgement has to be done keeping in mind, the legitimate concerns of the masses who have suffered in the name of religion, caste and language. To address the concerns of these sections, the government while maintaining the secular outlook should work for their betterment. Further, the Judiciary while dealing with election cases with respect to this verdict, should ensure that a demarcation is made between the permissible and non permissible statements and also the contexts in which such statements are made before deciding whether they constitute a corrupt practice or not. Ultimately, the need is to ensure a fine balance between the judgement, free speech and also the betterment of the vulnerable sections.

5. SIMULTANEOUS ELECTION In the simultaneous voting mechanism, a voter of a specific constituency would "normally cast his/her vote for electing members of Lok Sabha and State Assembly on a single day and at the same time." This does not mean that Lok Sabha and Assembly polls will be held on the same day across the country, rather they would follow the current phase-based pattern. Simultaneous election is not a new concept. It was in practice in India. The first general elections to the Lok Sabha was held simultaneously with all State Assemblies in 1951-52. That practice continued in three subsequent general elections held in the years 1957, 1962 and 1967. Because of premature dissolutions and extension of terms of both the Lok Sabha and various State Assemblies, along with the imposition of President’s rule (under Article 356), the cycle of simultaneous elections got disrupted.

RECOMMENDATIONS FOR SIMULTANEOUS ELECTIONS:  The Law Commission of India headed by Justice BP Jeevan Reddy, had suggested simultaneous elections to Lok Sabha and state assemblies, in 1999.  79th Report of the Parliamentary Standing Committee of Law and Justice (submitted in 2015) had supported the idea of simultaneous elections. The Committee also recommended a two-phase election schedule to make the Lok Sabha and Assembly polls coterminous.  In 2015, The Election Commission was asked to give its view on the synchronised polls. The commission had said it would be logistically possible to hold the elections together if sufficient time is given to the Commission. Recently, the commission had announced that it would be logistically ready to conduct the simultaneous elections by September next year.  Niti Aayog had also supported the conduct of simultaneous elections in its recently released Three Year Action Agenda.  The present Prime Minister had made a case for holding elections to Parliament, State legislatures and local bodies simultaneously.

ADVANTAGES OF HOLDING SIMULTANEOUS ELECTION 

END “PERMANENT CAMPAIGN” SYNDROME: The concept of the Permanent Campaign explains the state of modern campaign financing. It describes how politicians constantly (or

NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 12



permanently) need to raise funds for their next re-election, which means that they are campaigning, during the time they are supposed to be serving the public. In India’s own version of the ‘permanent campaign’, in the last 30 years, there has not been a single year in which there has been no election either to a State Assembly or to Parliament. Simultaneous elections would end the “permanent campaign syndrome and improve governance.



REDUCE POLICY PARALYSIS AND REDUCE THE IMPACT ON DELIVERY OF ESSENTIAL SERVICES: Elections lead to imposition of Model Code of Conduct (MCC) in the poll bound





 

State/area. MCC is a set of legally binding Dos and Don’ts for the Union/State governments, political parties and candidates, from the date of public announcement of the election. The imposition of MCC puts on hold the entire development programme and activities of the Union and State Governments and put off the implementation of rational decisions, in the poll bound State. Frequent elections lead to imposition of MCC over prolonged periods of time. This often leads to policy paralysis. Frequent elections would also lead to disruption of normal public life and impact the delivery of essential services. SAVE TIME AND MONEY: Holding elections simultaneously would certainly save money, time and energy. It would lighten the financial strain on the government and Election Commission machinery that is incurred due to conduct of separate elections every year. The Election Commission has estimated an expenditure of over Rs 9,000 crore for such a huge exercise. But this might be less than the cumulative cost of holding separate state polls in batches as an annual occurrence. REDUCE BURDEN ON CRUCIAL MANPOWER: It would free the crucial manpower which is often deployed for prolonged periods on election duties. For example, the 2014 Lok Sabha elections which were held along with State Assembly Elections in Odisha, Andhra Pradesh, Sikkim and Arunachal Pradesh was spread over nine phases and 1077 in situ companies and 1349 mobile companies of Central Armed Police Force (CAPF) were deployed. Better coordination between centre and states Increase the poll percentage

DISADVANTAGES OF HOLDING SIMULTANEOUS ELECTION 

PRACTICALITY IN CONDUCTING THE ELECTIONS: The only way to synchronize elections,

as per Niti Aayog, is extending the term of some state assemblies (to be avoided unless inevitable) and curtailing term of some others (to be kept at minimum). These require constitutional amendments. The report by the think-tank says the syncing process would be difficult as opposition parties will have to give up their tenure in the state assemblies.  FREQUENT ELECTIONS have always been acting as a mechanism to gauge the mood or opinion of the citizens with respect to the government functioning. There will always be possibility of mixing the national issues with local issues and former getting primacy.  VOTER BEHAVIOUR: An analysis of electoral data since 1999 helps to understand voter behaviour in simultaneous elections. When handed two ballots at the same time to choose their representative for both Parliament and State Assembly, voters chose the same party in 77 per cent of the cases. This trend of choosing the same party has gone from 68 per cent in 1999 to 77 per cent in 2004 to 76 per cent in 2009 and 86 per cent in 2014. The ability or willingness of the voter to vote differently is only decreasing with time when elections are held simultaneously.  CERTAIN SITUATIONS: Another very important question that could be asked here is, what would happen if Lok Sabha or some state assemblies are dissolved in between? How will such situations be dealt? NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 13

WAY FORWARD: If Lok Sabha and state assemblies are dissolved in between, then elections for Lok Sabha and for those assemblies could be held only for the remaining period – till the next general elections (as per calendar of election) only. The Law Commission of India in its report of 1999 has dealt with the problem of premature and frequent elections. It had recommended an amendment of this rule on the lines of the German Constitution, which provides that the leader of the party who wants to replace the chancellor will have to move the no-confidence motion along with the confidence motion. If the motions succeed, the President appoints him as the Chancellor. If such an amendment is made, to Rule 198 of the Rules and Conduct of Business of the Lok Sabha, the Lok Sabha would avoid premature dissolution without diluting the cardinal principle of democracy that is a government with the consent of the peoples’ representatives with periodical elections. It will also be consistent with the notion of collective responsibility of the government to the House as mentioned in Article 75 (3) of the Constitution.

CONCLUSION The holding of simultaneous elections to the Lok Sabha and the State Assemblies would be a step forward. If the simultaneous elections are to be conducted, it would be possible only when necessary changes are made in the Constitution (tenure of either the Lok Sabha or a state assembly cannot be curtailed or extended except by amending the Constitution) and Representation of the People Act (RPA mandates that elections are to be held within six months ahead of the end of the term of a state assembly or the Lok Sabha). Above all, it requires the consensus of the political parties. The government should make use of this opportunity of discussions with the political parties to bring in the much-demanded electoral reforms.

6. NATIONAL COMMISSION FOR BACKWARD CLASSES NCBC was established in pursuance to the Supreme Court judgement in the Indra Sawhney case (Mandal case) as per the NCBC Act, 1993.

FUNCTIONS OF NCBC    

The Commission considers inclusion in and exclusions from the lists of classes notified as backward. Tender such advice to the Central Government as it deems appropriate. The advice of the commission shall ordinarily be binding upon the central government. The commission has powers of a civil court in some matter including requiring the discovery and production of any document.

123rd CONSTITUTIONAL AMENDMENT BILL 



The Constitution 123rd Amendment Bill will serve a two-fold purpose. Firstly, it will replace the NCBC, which is a statutory body, with a constitutional body. And secondly, it will also strengthen the NCBC and give it powers at par with the National Commission for Scheduled Castes (NCSC) and the National Commission for Scheduled Tribes (NCST). New Articles inserted are:  Article 338B in the constitution which provides for NCBC, its composition, mandate, functions and various officers.  Article 342-A which empowers the president to notify the list of socially and educationally backward classes of that state / union territory. In case of a state, president will make such

NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 14



notification after consultation with the Governor. Under the same article, it is proposed that parliament by making a law can include or exclude the classes from the central list of backward classes.

HOW DOES MAKING THE NCBC A CONSTITUTIONAL BODY HELP? •







• •

Under the NCBC Act, the Commission merely had the power to recommend inclusion or exclusion of communities in the OBC list. The new Bill will allow it to look into all matters regarding the welfare and development of backward classes. It will also be entrusted with the additional function of inquiring into specific complaints regarding violation of rights. This is an improvement. Article 342(A) will make it mandatory to take the concurrence of Parliament for adding or deleting any community in the backward list. This will introduce greater transparency. Parliamentary scrutiny can further reduce the scope for arbitrary decisions. Currently, the Scheduled Castes Commission, which looks into cases of atrocities against Dalits, is also in charge of hearing grievances from OBCs- which mostly pertain to the nonimplementation of reservations in jobs and educational institutes. The amended Bill will give the Commission powers equivalent to that of a civil court. It will be able to summon any person, ask for a document or public record, and receive evidence on affidavits. Union and state governments will have to consult the Commission on all significant policy matters affecting the socially and educationally backward classes. The Commission, which will have a chairperson, vice-chairperson and 3 members, will regulate its own proceedings.

CRITICAL ANALYSIS OF THE BILL •





In practice the proposed system will treat the developmental issues related to BCs on a par with caste discrimination and untouchability suffered by SCs and even by STs. It is illogical and lacks historical justification. Under the proposed Bill, removal of the members has been made easier. The bill provides that "conditions of service of tenure of the offices of chairperson, vice-chairperson and members so appointed shall be such as the president may by rule determine". In the NCBC Act, 1993, the service term of every member of the commission was set for three years and early removal were based on well laid out grounds. The President (hence the central government) can specify a class to be socially and educationally backward in a state's list or a Union territory's list. This can be done with a public notification. The president will have to consult the governor, but his advice will not be binding. Thus, it effectively takes away the power that the states currently have to determine their own OBC lists.

• Article 340 will be dead without being accorded the dignity of a repeal. The article reflects the Constituent Assembly’s understanding on the matter which is relevant even today: there are classes, not castes, which suffer from social and educational backwardness, and the state has the burden of allocating adequate funds to ameliorate their conditions.

WAY FORWARD To make these changes all the more effective, the bill should include: • Bifurcation of the communities as “backward”, “more backward”, “most backward”, and “extremely backward” with the sub quotas to ensure that benefits reaches the needy. This will also stop instances like Jat agitation, Patels agitation etc. NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 15



• •

• • •

The members of the commission must be persons of repute earned through long and sincere service for backward classes and knowledge and experience of society, social backwardness and developmental processes relevant to advancement of SEBCs. They should not have any political affiliation. This will instill the confidence of the community in the newly constituted body. The bill must not affect or alter in any way the present powers or functions of the State Backward Classes Commissions. It must have vision and agenda to not only include or exclude BC from list but to ensure comprehensive and holistic development of each community which helps in bringing equality among all. The new body must advice and guide Centre in policy formulation, monitor their effectiveness and progress of SEBC. Any inclusion or exclusion must be backed by objective data with overlying parliamentary scrutiny. Must check any attempt by Advanced Communities to get listed as SEBC. • It should include a grievance redressal mechanism in its framework, which is absent in the present setup. This will establish a positive feedback system for the govt, where they can receive suggestions for better performance.

7. NAGA’S WOMEN QUOTA IN ULB

WHAT IS THE ISSUE? •

Nagaland’s tribal traditional bodies, exclusively run by men, are opposed to 33 per cent reservation for women in elections to civic bodies.

WHAT IS THEIR ARGUMENT? •

Their argument is that Article 234(T) of the Constitution, which provides for 33 per cent reservation for women in local body elections, would “infringe upon Naga traditions and customs”.

NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 16



The Central Government maintains that the towns and municipalities are new concepts and have nothing to do with tradition and customary practices of the Nagas.

WHAT ARTICLE 371(A) SAYS: •

Article 371(A) of the Indian Constitution (Special provision with respect to the State of Nagaland) states, “Notwithstanding anything in this Constitution, (a) no Act of Parliament in respect of (i) religious or social practices of the Nagas, (ii) Naga customary law and procedure, (iii) administration of civil and criminal justice involving decisions according to Naga customary law, (iv) ownership and transfer of land and its resources, shall apply to the State of Nagaland unless the Legislative Assembly of Nagaland by a resolution so decides.”

FLOW OF EVENTS •



• • • • •



• • • •

The Constitution was amended in 1992 to provide 33% reservation for women in municipalities. But Nagaland, which passed its Municipal and Town Council Act in 2001, didn’t include the provision and held ULB polls in 2004 without providing that mandatory right to women. Only after the Gauhati high court, acting on a petition, directed Nagaland in 2005 to include women reservation, the state government amended its municipal Act and included the provision. Even after this, the state government couldn’t conduct fresh elections to ULBs in 2009 due to opposition from tribal bodies. Irked by the developments, women groups led by Naga Mothers Association (NMA) filed a writ petition in the high court seeking intervention. In October 2011, a single bench of the court directed the state government to hold ULB polls with reservation by January 20, 2012. Instead of complying, the government appealed to a division bench, which set aside the previous order in July 2012. This was followed by a resolution passed in Nagaland assembly in September 2012, which concluded Article 243T of Part IXA of the Constitution (which deals with women reservation in municipalities) is not applicable to the state as it infringed on Article 371A. Taken aback by the developments, women groups under the banner of joint action committee for women rights (JACWR) filed a special leave petition (SLP) in Supreme Court against both the division bench order of Gauhati high court and the Nagaland assembly resolution. Then the state government decided to hold elections with reservation for women. So the Naga Mothers’ Association (NMA), which has been spearheading the women’s movement in the state, has adopted a wait-and-watch policy. The women’s groups have agreed to withdraw their petition, but only after the election process was completed. Nagaland government, after initial steadfastness to hold the long-delayed urban local body polls declared the elections as null and void after some tribal bodies, opposed to reservations for women, sought to disrupt the process.

HISTORY OF POLITICAL PARTICIPATION OF WOMEN •

Women do not find political space in Nagaland is evident from the fact that no woman has ever made it to the State Legislative Assembly since the state was formed in 1963. Barely a dozen women have contested Assembly elections in these five decades. One woman, Rano M Shaiza, however, managed to win from the lone Lok Sabha constituency of the state. That was in 1977 and she remains the first and only woman to achieve that feat.

NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 17

BENEFITS OF ARTICLE 234(T) • • •



Democratizes the public sphere by inclusive participation of women in a largely maledominated society In rural areas the quota has helped improve local governance, enhancing outcomes in delivery of civic services related to drinking water supply, sanitation and irrigation, among others. In urban local bodies, the visible impact has been more quantitative in terms of representation rather than qualitative, with success being linked to emphasis on gender sensitisation by civil society and political parties. The Naga women also, once armed with this reservation, will have a say in grassroots governance from where major policy decisions are taken.

REASONS FOR THE OPPOSITION - ANALYSIS •









Ownership of land and resources: In the opposition to women’s reservation in ULBs, the most pertinent aspect is the economic connotations inherent in politically empowering women through reservations. Naga’s customary laws preclude women from inheriting land. This is exactly what Article 371 (A) protects — the social, cultural and customary practices of the Nagas, which are germane to land ownership and inheritance thereof. The fear is that women would finally have a say in how resources are used and shared in towns, which could then spill over to villages. Naga male-dominated patriarchal tribal bodies: Village democracies in Naga is pertinent only to males — only males have the right to land ownership; only males can participate in the village parliament. It’s patriarchy in its purest form, actually. So far, only men are privy to the utilisation and sharing of resources allotted by the Central and state governments, as also available resources of clan and tribe land ownership. Women empowerment associated with political power: With political powers come economic powers, and with economic powers, political power is reinforced and consolidated, all of which has the potential to disrupt the status quo in Naga society that has marginalised women politically and economically. All patriarchal societies and states deny women access to economic and political powers, starting with land ownership, the primary marker of power hierarchies. The opposition to women’s reservation in ULBs not only underlines the badly bruised Naga male ego, but has critical economic connotations accentuating how their economic and political strongholds are perceived to be threatened. Educated women: Naga women have taken to education. Today, Naga women excel in the public and private spheres academically, intellectually and to a certain extent economically — this is frightening to the Naga male, who continues to expect the woman to be dependent on him. While Naga women are respectful towards Naga culture, tradition and customary law, they are also generally more open, willing and able to adapt to new ideas and change and generally to global culture, politically, economically and socially. Some statistics maintain that more than 50 per cent of Nagaland government employees are women. Apprehension about the change: There is also a fear among Naga males that the Indian government is trying to introduce alien political and economic systems, which would adversely tell on Naga nationalism, even dilute it. Here again, the diverse perspectives of Nagas belonging to various political, economic, social and educational backgrounds are at play.

NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 18

CRITICAL ASPECTS •







Custom conflicts with rights: The arguments with the backing of Article 371 (A) contradicts not just Article 243(D) and (T) that guarantees reservations for women, but the basic right to equality and the overall principle that when custom conflicts with fundamental rights, rights must prevail. The Constitution should be amended to make this explicit. Nagaland's women have the right to be part of the democratic mainstream. State Government failure: The abysmal failure of the Nagaland government and the state machinery to stem violent protests against women’s reservation must be underlined. The Nagaland government’s vacillating stand on women’s reservation over the years poured fuel into the fire, as much as its inability to gauge the mood of tribal bodies and their vulnerability to numerous shades of over ground and subterranean political agendas, in the name of Naga culture, customs and traditions, and a failure to maintain the rule of law by an ineffectual civil and police bureaucratic machinery. Misuse of the special status granted in Article 371(A): It must be underlined that almost all Naga tribal bodies, including the Naga Hoho, emerged since the 1980s and thereafter — therefore, they are not Naga traditional institutions. The traditional Naga institutions recognised by the British and by the Indian government, which have constitutional sanction (enshrined in Article 371 (A)), are the Naga village parliaments, which are the custodians of Naga culture, traditions and customary laws. No adherence to Article 243(T): While tribal bodies have always taken resort to Article 371(A) in respect to various socio-economic issues, civic elections in the state have not been held since Article 243(T) of the Constitution, which provides for 33 per cent reservation for women in local bodies, came into force in 1993.

CONCLUSION It would be of great benefit for the whole State if the reservation is extended to women in the ULBs. In fact it is totally unfair for the tribal bodies to deprive their women from getting the mandatory reservation facilities given by the Constitution to them. It needs to be remembered by the agitating bodies that Nagaland is very much within the territory of India, and, hence, any constitutional provision that is applicable for the other parts can equally be valid for them as well. The Union Government or the State Government of Nagaland cannot have the luxury to

have a separate arrangement for their women unless an amendment is made to certain parts of Part IX-A of the Constitution. If they take the help of the same women to mediate peace talks between the militants and the Government, why cannot they allow them to enjoy 33 per cent reservation? If the Naga Customary Laws are all about preserving the dignity and traditions of the Naga society, the tribal organisations must respect the constitutional mandate prescribed under Article 243T as this will add an edge to their women only. Denial of women’s rights cannot be a measure of the State’s autonomy.

RIGHT TO PRIVACY:

8. RIGHT TO PRIVACY

 A legal framework that provides individuals, a legal right to protect their and their data’s privacy.  Not mentioned in the Constitution. NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 19

 Defined by judgements mainly M.P.Sharma vs Satish Chandra Case(1954) and Kharak Singh vs State of U.P Case(1962). These judgements had ruled that Right to Privacy was not a fundamental right.

WHY IN NEWS: Recent ruling by the Supreme Court that Right to Privacy is a fundamental right. JUDGEMENT:  Known as Puttaswamy vs Union of India Case.  Was unanimously made by a nine judge bench. The judgement noted that Right to Privacy: (1) Is an integral part of Right to Life and Personal Liberty guaranteed in Article 21 of the Constitution. (2) It is intrinsic to the entire fundamental rights chapter of the Constitution. (3) Also includes all your decisional choices: where you live, what you do, whom you marry, who are your partners, your sexual orientation. (4) Is not an absolute right and is subject to reasonable restrictions. (5) There has to be a balance struck between individual interests and the legitimate aims (included public interest, national security, criminal investigation, preventing leakages etc.).  The judgement maintained its approach of developing the right on a case by case basis.

WHY A LANDMARK JUDGEMENT: Though the right to privacy has been recognised in numerous countries like United States of America, Australia and Canada; the recent verdict by the apex court has been a landmark judgement to the country. By ruling that “right of privacy cannot be denied, even if there is a miniscule fraction of the population which is affected and that the majoritarian concept does not apply to Constitutional rights”, the verdict protects heterogenity and recognises and reinforces the plurality and diversity of the country.

IMPLICATIONS OF THE VERDICT: a) Ongoing legal case on Aadhar: in light of the verdict, the court will have to examine whether Aadhar comes under the ‘reasonable restriction’ category and also whether Aadhar can be made mandatory. b) Bound to affect government bodies or projects collecting personal data of individuals (egs: DNA Profiling Bill, 2017; Smart City mission). c) Impact on Section 377 of IPC: With the court verdict including even the sexual orientation of an individual within the ambit of Right to Privacy, the need to review section 377 that criminalises homosexuality has risen. d) Impact on the pending lawsuit over social media data sharing: the verdict has influence not only on the legal case of Whatsapp and also on all similar corporate data sharing practices. e) Implications on banks, e-commerce companies and various apps that collect personal data. f) On legality of marital rape and abortion as the verdict strengthens the arguments for a woman’s right to bodily integrity. g) Also on the right to choose one’s food.

DATA PROTECTION LAW: While the judgement has restrained the state from interfering with an individual’s privacy, it has also placed an obligation on the state to take all necessary measures to protect privacy of the individuals (from state and non state actors). This has called for a data protection law. NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 20

Present law: Information Technology Act (2000) that deals with the privacy related issues of India. Limitations: 1. The categories included in the sensitive personal information are inadequate. 2. Emails and chat logs as well as records of internet activity, including online search history, are particularly vulnerable to abuse and misuse, these should be included in the categories. 3. Section 43A only covers corporate bodies engaged in commercial or professional activities, excluding government agencies, such as UIDAI, which gathers huge amount of individual data. 4. Section 72A put the onus on the petitioner to prove not just the privacy violation, but also the gain or loss due to privacy violations.

DATA PROTECTION LAW OF U.K: Known as U.K Data Protection Bill Features: a) Grant users more control over data over how others use their personal data. b) Inclusion of Right to be forgotten: Allows users to ask companies including social media firms for their data to be erased. c) List of personal data made wider with the inclusion of IP Address, Internet cookies, DNA etc. d) Tougher punishments prescribed for those who fail to comply with the new rules of storing and handling of personal data.

PROGRESS MADE: Assurances has been made by the Union Minister of Law that a Data Protection Law in compliance with the apex court verdict will be placed by December. The law is being drafted by a Committee of experts led by former Supreme Court Justice B.N.Srikrishna.

SUGGESTIONS The effectiveness of this verdict will depend on numerous factors: 1. On the Executive and legislature (that they do not pass any law that takes away privacy of the people completely) and on Judiciary (how it will bring in balance between Right to Privacy and other fundamental rights). 2. Secure Privacy Policy with appropriate and detailed standards of care that would assure citizens, protection of their datas. 3. Stronger cyber security, which has become essential in light of the recent data leaks and hacking. 4. A proper regulatory mechanism: an independent regulatory body answerable to Parliament and in charge of enforcing data protection. Most of all in this digital era, the technological advances and right to privacy needs to be closely scrutinised and balanced.

9. JUDICIAL APPOINTMENT EXISTING PROCEDURE OF APPOINTMENT • Article 124: Appointment of Supreme Court judges. • Article 217: Appointment of High Court judges. • Collegium system of appointment.

NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 21

CRITICISM AGAINST THE COLLEGIUM SYSTEM • • • •

Lack of transparency: It is seen as a closed-door affair with no prescribed norms regarding the eligibility criteria. Recent cases indicating the inadequacies of the appointment of able judges by the collegium system There is no knowledge on how and when a collegium meets and how decisions are taken. Lawyers are also unaware on whether their names have been considered or not for the elevation as judges and has also resulted in overlooking of several talented junior judges and advocates.

NATIONAL JUDICIAL APPOINTMENT COMMISSION: • • •

Venkatachaliah Commission recommendation (2002): A five member NJAC to replace the collegium system. In a bid to reform the judicial system, Parliament amended the Constitution and brought about the 99th Amendment to provide for the NJAC. The Supreme Court struck down the 99th Amendment as the court ruled that: (1) The inclusion of the Law Minister in the body making appointment was seen to be impinging on the doctrine of separation of powers. (2) The Act gave any two members a veto over all decisions, raising the question whether the executive representatives could overrule the judicial members. (3) The new institutional mechanism to appoint judges was a violation of the independence of the judiciary, a basic feature of the Constitution.

MEMORANDUMOF PROCEDURE: •

• •



The 2015 ruling on NJAC, had also paved the way for a new Memorandum of Procedure (MoP) to guide future appointments so that concerns regarding lack of eligibility criteria and transparency could be redressed. The Constitutional Bench that quashed the Act was unanimous in proposing a new MoP that would introduce transparency in appointment process, a secretariat to manage judicial appointments, and a mechanism to address complaints against those considered for appointment. However, the Court raised concerns over some issues in the draft Memorandum of Procedure (MoP) submitted by the government. The Supreme Court had asked the government to re-consider these clauses. Unfortunately, the MoP has been stuck for over 20 months: Suggestions accepted (1) Lifting the proposed cap on the number of jurists and lawyers for appointment as judges in the Supreme Court. The draft sent to the Chief Justice of India had recommended that up to three judges from among jurists and lawyers could be appointed. (2) Seniority is now being considered to be the main condition. The government had earlier proposed merit-cum-seniority as the criterion for elevation of judges. The areas of contention are: (1) Clause on national security: The clause provides that the government will have powers to reject any candidate recommended by the collegium on grounds of public interest and national security. Judiciary stand: the Government will have to put on record the reasons for rejecting any name recommended by it. Government stand: The government wants share such evidence orally. (2) “overriding public interest” clause: The clause mentions - Should a candidate whose record has been flawless and integrity unquestionable but has kith and kin who are found

NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 22

to be close associates of anti-nationals or anti-social elements be selected (for judgeship) as such instances raise the pertinent issue of overriding public interest. (3) Setting up of a committee to deal with complaints against judges: Government stand: A panel of three sitting judges, outside the collegium, in the apex court and in each of the 24 high courts (HCs) as members of a committee, to exclusively deal with complaints against judges. As proposed, the committee will also look into complaints against candidates recommended for elevation to the SC or HC benches The collegium sees as an infringement on the independence of judiciary.

10. REAL ESTATE (REGULATION AND DEVELOPMENT) ACT, 2016

The Real Estate (Regulation and Development) Act or RERA is a law that seeks to regulate and standardise the real estate sector, where the need for uniform guidelines and transparency has been felt for long. The Act also aims to increase transparency and accountability in the sector by regulating the buying and selling of commercial and residential units or projects and timely completion of project by the promoters. It is expected to boost the confidence of the homebuyers and is touted by many as a step in the right direction and a major game-changer.

PROVISIONS OF THE ACT:  Applicability of the Act: Both residential and commercial real estate;  Establishment of Real Estate Regulatory Authority in each State/ Union Territory (UT), for oversight of real estate transactions. The Authority is to act as the nodal agency to co-ordinate efforts regarding development of the real estate sector and render necessary advice to the appropriate Government to ensure the growth and promotion of a transparent, efficient and competitive real estate sector.  Registration of Real Estate Projects and Registration of Real Estate Agents: Mandatory registration of real estate projects (having a planning area of more than 500 square meters or more than eight proposed number of apartments) and real estate agents who intend to sell any plot, apartment or building, with the Real Estate Regulatory Authority;  Mandatory Public Disclosure of all project details by the promoters.  Functions and Duties of Promoter: o Disclosure of all relevant information of project; o Adherence to approved plans and project specifications; o Obligations regarding veracity of the advertisement for sale or prospectus; o Rectify structural defects; o Refund money in cases of default; o Compulsory deposit of 70 percent: The promoter must deposit 70% of the amount realized from the allottees in an escrow account, maintained by a scheduled bank within a period of fifteen days to cover the cost of construction to be used for that purpose. o Adherence to declared plans: To bar the promoter from altering plans, structural designs and specifications of the plot, apartment or building without the consent of two-third allottees after disclosure; o Rights and Duties of Allottees: • Right to obtain stage-wise time schedule of project; • Claim possession as per promoter declaration; • Refund with interest and compensation for default by the promoter; NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 23

• Allottees to make payments and fulfill responsibilities as per agreement.  Fast Track Dispute Settlement Mechanism: RERA can hear complaints filed by aggrieved persons for contravention or violation of provisions of the Act by any promoter, allottee or real estate agent. The persons aggrieved by the decision of RERA can approach Real Estate Appellate Tribunal, within 60 days of former’s order. REAT must dispose off the appeal within 60 days and will have all powers of a civil court.  Carpet area has been defined under the Act and developers can sell units only on carpet area which means the net usable floor area of an apartment. This will enable the buyers get the clear picture of the usable space.  Punitive Provisions: Punitive provisions including de-registration of the project and penalties in case of contravention of provisions of the Act or the orders of the Authority or Tribunal.

BENEFITS  

   

A common platform: The Act will bring on a common platform buyers, sellers and intermediaries engaged in the sector. Single regulator: It brings the entire real estate sector within a regulatory environment, defining the liabilities and liberties of a developer and providing an effective grievance redress mechanism to the buyer. Accountability: Developers will now have to provide project details, timelines and the layout plan (which earlier was rarely shared with the home-buyer). Deposition of 70% of the funds in a separate account would address the tendency of fund diversions between different projects, practiced by developers. Mandatory disclosure of project details will ensure transparency in the sector. Establishment of dispute settlement mechanism

KEY CONCERNS:  State delays to notify RERA rules  Difference between Central and State Law: Some states have enacted laws to regulate real estate projects. The Central Act differs from these state laws on several grounds. The States that have notified rules have not adopted the Model Act. A Crisil analysis of the newly notified State rules found that none of the nine States adopted the Act in its entirety. While RERA sought to sweep into its ambit all ongoing projects as on its effective date (May 1st,2017); Andhra Pradesh, Uttar Pradesh and Kerala have introduced clauses which allow semi-finished projects to slip out of the net. Most States have also diluted provisions that call for imprisonment up to three years or fine amounting to 10 per cent of project cost, for non-compliance with RERA.  Mandatory 70% may raise project cost: In certain cases, the cost of construction could be less than 70% and the cost of land more than 30% of the total amount collected. This implies that part of the funds collected could remain unutilized, necessitating some financing from other sources. This could raise the project cost.  Wide definition of promoter: The term has a wide definition to cover not only the developer, but also a landlord and private equity or strategic investor, if they actively participate in the project. Many private equity as well as strategic investors who have invested in real estate, mainly at project level, is renegotiating their contracts with the developers fearing litigation and fines.

NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 24

 Delays in clearances: There is a provision on monetarily penalizing the promoter for delay in completion of projects. However, in case such a delay is caused due to delayed governmental approvals then the promoter should not be penalized. Hence, such an exemption should be added under the relevant provision.  Time limit being set for disputes resolution needs to be looked into during the implementation of the law.

WAY FORWARD  Every State will have to notify the Act, set up a regulator and launch an awareness campaign to empower the consumer.  Transparency in government clearances to avoid delays.  RBI must ease up on risk-weightage for loans to real estate developers, so that they have easier access to capital. New accountability and regulation make that case compelling.

RECENT DEVELOPMENTS: The Centre had debarred real estate developers from marketing ongoing projects that are yet to be registered with RERA. Most states have either not set up regulatory bodies or are not ready with the attendant rules. Rather than taking up such measures, The Centre needs to opt for a measure of flexibility on the issue, and allow marketing of real estate projects provided there is full disclosure and with the added provision that they are to be registered as soon as the state regulatory infrastructure is in place and functional.

CONCLUSION The Act is a welcome step in the real estate sector. As much as this legislation attempts to make the housing sector more buyer-friendly, it still only manages to address the symptoms but not the disease. It needs to be accompanied by more fundamental reforms such as improving land records and titling, reducing relatively unnecessary but costly approvals, reforming rules related to formal financing for housing projects and dismantling regressive land-use constraints and building regulations in cities.

11. COMPULSORY NATIONAL ANTHEM AT CINEMA HALLS EXISTING LAWS AND JUDGEMENTS ON NATIONAL ANTHEM  Article 51(A): “it shall be the duty of every citizen of India — (a) to abide by the Constitution

and respect the ideals of the national flag and the national anthem”.  The Prevention of Insults to National Honour Act, 1971: “Whoever intentionally prevents the singing of the Jana Gana Mana or causes disturbances to any assembly engaged in such singing shall be punished with imprisonment for a term, which may extend to three years, or with fine, or with both.”  Bijoe Immanuel vs State of Kerala (1986): Supreme Court had observed, “There is no provision of law which obliges anyone to sing the National Anthem nor is it disrespectful to the National Anthem if a person who stands up respectfully when the National Anthem is sung does not join the singing.”

SUPREME COURT RULING: In Shyam Narayan Chouksey vs. Union of India case (2016); Supreme Court,  Made it mandatory for cinemas to play the national anthem before every screening and for everyone in the audience to stand up and show their respect. NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 25

 Made it compulsory for the national flag to be displayed on the screen and the doors of the

cinema to be closed while the anthem is being played.  Banned commercial exploitation of the national anthem.  Ruled that the abridged version of the national anthem made by anyone for whatever reason shall not be played or displayed. The ruling is aimed at instilling a sense of committed patriotism and nationalism. Maharashtra and Karnataka had adopted such a rule over a decade ago.

CRITICAL ANALYSIS • •

• • • •

Patriotism as a feeling can never be imposed; instead it has to come from within. The appropriateness of playing national anthem in cinema halls and theatres (areas of entertainment) has been questioned. Making the national anthem mandatory in schools would have helped better in instilling the sense of patriotism. In an earlier ruling in 1986, the Apex court itself had said that no provision of law obliges anyone to sing the national anthem and not singing it does not amount to showing disrespect. By directing the way to express patriotism, the ruling has been criticised as going against freedom of expression guaranteed to the individuals. In the absence of a proper implementation mechanism, the rule could lead to the emergence of vigilantism The ruling has been criticised as a case of judicial over reach.

CONCLUSION: Patriotism as a feeling can never be imposed; instead it needs to come from within. Initiatives to instill patriotism is more importantly, needed in educational institutions (from where it can be spread to the society). Supreme Court should reconsider its ruling and bring the needed changes so that both, freedom of expression and patriotism are ensured in the society.

12. BEACONS AND VIP CULTURE USE OF RED BEACON  

In Abhay Singh v. Union of India Case, Supreme Court had called red beacon as a “menace”. The governments at Delhi, Punjab and Uttar Pradesh had earlier, decided to do away with the use of red beacon.

CABINET DECISION: The Union Cabinet had decided to ban the use of red beacon lights on cars of VIPs from May 1st, 2017. The decision to put an end to the practice of using such beacons covered all government vehicles, including the prime minister, chief ministers, central and state ministers and judges of the Supreme Court and high courts. Emergency services like ambulances and Fire Brigade, which do need to travel faster than citizens, will be allowed to use blue beacons.

CHANGES MADE: The ban required the amendment to the Central Motor Vehicle Rules, 1989. Rule 108 of the 1989 regulations, empowered the Centre and the States to designate dignitaries as entitled to red lights on top of their vehicles.

ANALYSIS: The ban on the use of red beacons is a decision in the right direction as:

NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 26

 The red beacon perpetuated, in democratic India, the segregation of the ruler and the ruled, which was a hallmark of colonial power. Removing this, would mean doing away with another colonial legacy.  It would help in reducing the gap between the public servants and the public.  Red beacons were seen causing inconvenience for the public, as they created traffic jams and the public had to wait.  The red beacons were misused: The vehicles were made use for unofficial purposes.

EFFECTIVENESS OF THE BAN: While ministers have started removing the red beacon, there have been reports that few ministers have started making use of sirens, hooters, flashers, police pilot cars to circumvent the ban.

WAY FORWARD: The government had put an end to the VIP culture of using the red beacon, by declaring that “every Indian is a VIP”. Along with ensuring its proper enforcement, more needs to be done to ensure that VIP culture is completely removed. The government should reconsider the existing privileges that is enjoyed by the VIPs; which includes no frisking at airports, first class travels, the allocation of residences and its free allowances in Lutyens Delhi, security cover (other than those with serious threats who really need protection) which are met from the public exchequer. However, the incidents like public representatives harassing in public, as the Air India incident indicate the need to bring in an attitudinal change among the VIPs. Only when the VIPs realise that they are public servants that is “servants of the public”, can the government’s declaration of “every Indian is a VIP” be truly actualised.

13. COMPETITIVE SUB-FEDERALISM With the Urban India forming about one third of the population and producing more than three fifth of the country’s GDP; it has become the engine of growth. In the coming years, urbanisation will determine the country’s development. It will also pose challenges for the government especially, the municipalities which will be primarily responsible for providing the services.

KEY CHALLENGES The urban local bodies (ULBs) face major and inextricably linked problems: poor governance capacities, large infrastructure deficits and inadequate finances.

GOVERNANCE CHALLENGE: • •



Cities do not have a single city government or a local self-government, leading to functional overlap. Significant fragmentation of responsibilities and service delivery across many institutions: the municipality, state departments and parastatal agencies or civic agencies reporting directly to the state government. Transparency/accountability issues, as even the most basic information on ULBs finances and quality of basic services is lacking in many cities, in part because implementation of the eGovernance initiative has also not been uniform.

NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 27

INFRASTRUCTURE DEFICIT: •

But every Indian city faces serious challenges related to water and power supply, waste management, public transport, education, healthcare, safety, and pollution. For instance, as against the Millennium Development Goal (MDG) target of 77%, India has managed to provide access to only 63% of the population by 2015 on access to sanitation. Also, as per the ranking of global cities based on urban infrastructure, New Delhi and Mumbai are placed around 50th positions.

INADEQUATE FINANCES: •

• •



As per 74th Constitutional Amendment Act of 1992, fund devolution is under the discretion of state legislatures. However, there is glaring inter-state disparities in terms of devolution of functional and financial powers to the ULBs. Some states have not even allowed the municipalities to levy property taxes. Low level of ULB per capita expenditure as compared to state per capita expenditure, with a few exceptions such as Mumbai, Kanpur, and Kolkata. Even when powers have been devolved, exercising them has proved difficult. Municipal own income comes from taxes; user fees; and domestic borrowing:  While property tax is the most important constituent of own revenues, there are problems of poor assessment rate, weak collection efficiency, flawed methods for property valuation, loss on account of exemptions, and poor enforcement.  ULBs by and large have not been able to levy adequate user charges to cover even the operation and maintenance costs.  Issuing municipal bonds has been challenging owing to the poor state of ULB finances and governance. However, having the powers to impose a greater number of taxes do not necessarily mean greater revenues for an ULB. Many other factors are important for being able to collect greater revenues such as the size of the tax base, the efficiency in tax collection and the level of economic activity in the city area.

NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 28

WAY FORWARD •

• •

Empowering ULBs financially:  The states should, therefore, empower cities to levy all feasible taxes.  Municipalities also need to make the most of their existing tax bases. There is a need to adopt the latest satellite based techniques to map urban properties. The Government should leverage the Indian Space Research Organization (ISRO)/ National Remote Sensing Agency (NRSA) to assist ULBs in implementing GIS mapping of all properties in the area of a ULB. Political economy challenges: Higher level bodies (state governments) need to cede power and sharing resources. Data and transparency can play an important role. • MoUD should see to it that the grants to ULBs are more tightly linked to comprehensive and updated data disclosure and transparency by ULBs. • NITI Aayog should compile comparative indices of municipalities’ performance annually based on the actual accountability and administrative capacity to deliver the core public services. • Introduce competition at the local level i.e. competitive sub federalism

Competition between states is becoming a powerful dynamic of change and progress and that has to be extended to the cities. Cities that are entrusted with responsibilities, empowered with resources and held accountable can become effective vehicles for competitive federalism and competitive sub federalism to be unleashed.

14. ELECTORAL BONDS Nearly 70 per cent of the ₹11,300 crore in political party funding over an 11-year period came from unknown sources, according to the Association for Democratic Reforms (ADR). With an intention to cleanse the political funding, Budget 2017-18 have come up with few measures.  Reduction in disclosure limit: Currently, political parties are required to disclose any donation of over ₹20,000 to the IT department. But there has been a trend of more donations flowing by way of hard cash in smaller amounts. To fix this, the Budget has reduced the disclosure limit to ₹2,000 and insists that any amount over this must be paid through cheque or the digital mode.  Introduction of electoral bonds.

WHAT IS IT? 

 

Electoral bonds will be issued by a notified bank for specified denominations. A donor, who wants to donate funds to a political party, can purchase a bond, using only cheques or digital payments, from a notified bank. These bonds are similar to bearer bonds (which does not carry the name of the donor and so facilitates anonymity). The party can convert these bonds back into money via their bank accounts. The bank account used must be the one notified to the Election Commission and the bonds may have to be redeemed within a prescribed time period.

NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 29

BENEFITS OF ELECTORAL BONDS: 

 

Helps to identify the source: Electoral bonds will prompt donors to take the banking route to donate, with their identity captured by the issuing authority and also help in minimising the use of black money for such donations. Similar to bearer bonds and therefore, facilitates anonymity of donors. Reduce internal corruption in political parties as the funds will be deposited only in the notified bank accounts.

CRITICISMS

 Reduce transparency and increase opacity in political funding: The electoral bonds, guarantees secrecy of identity for those making contributions to political parties, rather than making it transparent to the public.  No upper limit has been set for the donations through these bonds.  Amendments to RPA, ITA and Companies Act make electoral bonds problematic: (1) Amendments to Reserve Bank of India Act, Representation of the People Act and Income Tax Act have affected transparency in political funding. The consequence of the amendments is that now, the annual contribution reports of political parties to be furnished to the Election Commission need not mention names of those contributing by way of electoral bonds. This will have a major implication on transparency in political funding as now the political parties are free not to file contributions received through electoral bonds in the contribution reports. (2) Amendments to Companies Act, 2013: Amendment to the Companies Act 2013 has removed the cap (of 7.5% of the average net profit in the three preceding financial years) on corporate contributions to political parties. Also doing away with the need to declare contributions to political entities in the profit and loss statements of the companies, will now allow corporate houses to donate unlimited sums. Considering the amendments made to Foreign Contribution Regulation Act (FCRA) in 2016 {that has allowed foreign companies with subsidiaries in India to fund political parties in India}, along with the amendments to Companies Act; the electoral bonds would only pave way for unlimited corporate donations to political parties and anonymous financing by Indian as well as foreign companies. RECENT DEVELOPMENTS:  The government is finalising the scheme for electoral bonds, which may be issued as early as November-December this year.  A PIL has been filed by NGOs, Association of Democratic Reforms and Common Cause which alleged that the amendments in law making provisions for electoral bonds would pave the way for unlimited corporate donations to political parties. The Supreme Court has agreed to adjudicate its constitutional validity and has sought response from Centre and Election Commission. WAY FORWARD To bring in transparency in political funding; • National Electoral Fund: Setting 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. • Ban private donations: Once public funding of political parties is ensured, private donations must be totally banned. NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 30

• • •



Annual audit by CAG: 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. Expand cashless economy concept to political funding and even the disclosure limit of Rs 2000 can be done away with. One umbrella legislation: If all the transactions and accounts being done and used by political parties are regulated under a piece of legislation, it might prove to be more effective and simple. There are many political parties at present which do not file the return every year. Bring political parties under RTI

CONCLUSION Though the electoral bonds were introduced with the intention to cleanse the political funding, it now seems to only make the political funding more opaque. The government needs to take into the consideration the concerns regarding the electoral bonds and make the necessary changes before the scheme on electoral bonds is finalised.

15. ANALYSIS OF ARTICLE 35A TEXT OF THE ARTICLE "Saving of laws with respect to permanent residents and their rights. — Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State: (a) defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or (b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects— (i) employment under the State Government; (ii) acquisition of immovable property in the State; (iii) settlement in the State; or (iv) right to scholarships and such other forms of aid as the State Government may provide, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this part." • Article 35A of the Indian Constitution is an article that empowers the Jammu and Kashmir state's legislature to define “permanent residents” of the state and provide special rights and privileges to those permanent residents. It is added to the Constitution through a Presidential Order, i.e., The Constitution (Application to Jammu and Kashmir) Order, 1954 issued by the President of India, "in exercise of the powers conferred by" clause (1) of Article 370 of the Constitution, with the concurrence of the Government of the State of Jammu and Kashmir. • Article 370, a part of the Indian Constitution when it came into force on January 26, 1950, provided that only two articles —Article 1, which defines India, and Article 370 — will apply to Jammu & Kashmir. Article 370 also mandated that other provisions of the Constitution can apply to J&K, “subject to such exceptions and modifications as the President may by order specify”, with the concurrence of the state government and the endorsement of the J&K Constituent Assembly. In 1969, the Supreme Court ruled that the President can issue an Order under Article 370 only with the concurrence of the state government. • The first such Presidential Order was issued on January 26, 1950. This was replaced by another Presidential Order (the ‘mother’ order), which applied several provisions of the Indian NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 31





Constitution to J&K with substantial changes, amendments and provisos. While applying to J&K the provisions of Part-III of the Indian Constitution, which relates to Fundamental Rights, the 1954 Presidential Order introduced Article 35A, which protected laws passed by the state legislature regarding Permanent Residents from any challenge on the ground that they were in violation of the Fundamental Rights. The present challenge to Article 35A in the Supreme Court is based on the ground that it could have been introduced in the Indian Constitution only through a constitutional amendment under Article 368, and not through a Presidential Order under Article 370. This is an argument that the Supreme Court has rejected on at least three occasions earlier. The PIL said the state government, under the guise of Article 35A and Article 370, which grants special autonomous status to the state, has been discriminating against non- residents who are debarred from buying properties, getting a government job or voting in the local elections.

LANDMARK JUDGEMENTS •





In 1961, a five-judge Constitution Bench in Puranlal Lakhanpal vs The President of India and Others held that when, through an order under Article 370, the President applies any provision of the Indian Constitution to J&K, the term “modification” must be considered in its “widest possible amplitude”. It will not be limited to making only partial changes to the provision, but will include the power to “extend” and “enlarge” the constitutional provision, including making a “radical transformation”. In 1969, another five-judge Bench reaffirmed this view in Sampat Prakash vs State of Jammu & Kashmir. The Supreme Court held that Article 368 of the Indian Constitution, which requires approval by a two-thirds majority in Parliament to amend the Constitution, does not directly apply to J&K. The court held: “Article 368 is not primarily intended for amending the Constitution as applicable in Jammu and Kashmir, but is for the purpose of carrying the amendments made in the Constitution for rest of India into the Constitution as applied in the State of Jammu and Kashmir. Even in this process the powers of the President under Article 370 have to be exercised.” Thus, any amendment to the Indian Constitution (done under Article 368) will apply to J&K only if such amendment is extended to the state by a Presidential Order under Article 370. Finally, on December 16, 2016, in State Bank Of India vs Santosh Gupta And Anr. Etc., a two-judge Bench of the court followed the two earlier Constitution Bench decisions to reiterate that the Presidential Order can “extend” or “enlarge” the provisions of Indian Constitution in its application to J&K.

LEGALITY ISSUES •



Article 35A was not added to the Constitution by following the procedure prescribed for amendment of the Constitution of India under Article 368. Article 370 does not anywhere confer on the President legislative or executive powers so vast that he can amend the Constitution or perform the function of Parliament. It has been brought about by the executive organ when actually the right of amendment of the Constitution lies with the legislative organ. Therefore, it is, allegedly, ultra vires the basic structure of the Constitution since it violates the Constitutional procedures established by law. The PRC (Permanent Resident Certificate) classification created by Article 35A suffers from the violation of Article 14, Equality before the Law. The non-resident Indian citizens cannot have the rights and privileges, same as permanent residents of Jammu and Kashmir.

NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 32



This also meant that the amending power of Parliament under Article 368 of the Constitution itself was abridged in its application to Jammu and Kashmir. When the President of India does not have legislative powers, he performed the function of Parliament.

OBJECTIONS AGAINST 35A •



• • • •



It facilitates the violation of the right of women to ‘marry a man of their choice’ by not giving the heirs any right to property, if the woman marries a man not holding PRC. Therefore, her children are not given Permanent Resident Certificate and thereby considering them unfit for inheritance – not given any right to such a woman’s property even if she is a permanent resident. It facilitates the free and unrestrained violation of fundamental rights of those workers and settlers like Scheduled Caste and Scheduled Tribe people who have lived there for generations. The Valmikis who were brought to the state during 1957 were given Permanent Resident Certificates on the condition that they and their future generations could stay in the state only if they continued to be safai-karmacharis (scavengers). And even after six decades of service in the state, their children are safai-karmacharis and they have been denied the right to quit scavenging and choose any other profession. The industrial sector & whole private sector suffers due to the property ownership restrictions. Good doctors don't come to the state for the same reason. Children of non-state subjects do not get admission to state colleges. It ruins the status of West Pakistani refugees. Being citizens of India they are not stateless persons, but being non-permanent residents of Jammu and Kashmir, they cannot enjoy the basic rights and privileges as being enjoyed by permanent residents of Jammu and Kashmir. It gives a free hand to the state government and politicians to discriminate between citizens of India, on an unfair basis and give preferential treatment to some by trampling over others, since the non-residents of the state are debarred from buying properties, getting a government job or voting in the local elections.

NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 33

WHY ARE POLITICAL PARTIES & SEPARATISTS OPPOSED TO TINKERING WITH 35A? •

Fear that it would lead to further erosion of J&K's autonomy and trigger demographic change in Muslim majority valley. Political parties say Kashmir resolution lies in greater autonomy; separatists fan paranoia against possibility of Hindus 'flooding' the valley. However, in the last 70 years, demography of Kashmir Valley has remained unchanged even as Hindu majority in Jammu and Buddhists in Ladakh have rights to buy property and settle in the Valley.

CONSTITUTIONAL VALIDITY OF 35A •







The constitutional validity of Article 35A is, therefore, well established. It protects legislation passed by the J&K legislature relating to benefits to Permanent Residents from challenge on the ground of violation of Fundamental Rights, while extending the chapter on Fundamental Rights of the Indian Constitution to J&K. In that sense, this provision is in the nature of an extension of the chapter on Fundamental Rights in the Indian Constitution to J&K. In fact, the Fundamental Rights were extended to J&K through the 1954 Presidential Order. Therefore, if the court were to accept the petitioners’ argument challenging Article 35A, the extension of the Fundamental Rights and every other provision of the Indian Constitution to J&K through consecutive Presidential Orders (all amendments to the 1954 mother order) will cease to apply. Only Article 1 and Article 370 of the Indian Constitution will then apply to J&K. If the legal challenge to Article 35A is to succeed, the Supreme Court would have to undo the constitutional law on the subject over the last six decades, as well as the application of a large number of provisions of the Indian Constitution to J&K. This is why it appears that the challenge to Article 35A — effectively the last remnant of J&K’s special status — is primarily political and its fate, too, will be decided politically. The other way for the Centre to remove J&K’s special status will be to get the state government’s concurrence to a fresh Presidential Order to remove Article 35A. To secure such concurrence will not be easy.

16. ENEMY PROPERTY ACT The central government had designated some properties belonging to nationals of Pakistan and China as ‘enemy properties’ during the 1962, 1965 and 1971 conflicts. In 1968, the Government of India enacted a legislation called the Enemy Property Act, which categorically defined enemy property as properties of citizens of countries which are considered an “enemy” by the Indian government (essentially any country that commits an act of aggression against India). The Act also vested these properties in the ‘Custodian of Enemy Property for India’, an office instituted under the central government.

RECENT AMENDMENT: The Enemy Property (Amendment and Validation) Act, 2017 Reasons cited for the Amendment:  To prevent the vested properties from falling into the hands of legal heirs of those who moved to other countries.  The various judgements by the various courts that had adversely affected the powers of the Custodian and the Government of India. For instance, Case of the estate of the erstwhile Raja of Mahmudabad (famous politician and leader of All India Muslim League during the Pakistan movement) who had moved to Pakistan after partition. His wife and son however, stayed NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 34

behind in India as Indian citizens. After the enactment of The Enemy Property Act (1968), the Raja’s estate was declared enemy property. When the Raja died, his son staked claim to the properties. After a legal battle that lasted over 30 years, the apex court in 2005, ruled in favour of the son.

AMENDMENTS MADE TO THE 1968 ACT:  The amendments shall be effective retrospectively.  Definition of enemy: The 1968 Act defined an ‘enemy’ as a country (and its citizens) that committed external aggression against India (i.e., Pakistan and China). Now, the definition of “enemy” and “enemy subject” shall include the legal heir and successor of an enemy, whether a citizen of India or a citizen of a country which is not an enemy. That is, it prohibits Indian citizens who are legal heirs of enemies from inheriting enemy property, and brings them within the definition of ‘enemy’.  Vesting of property: Now, the Custodian will be the owner of enemy property retrospectively from 1968. Even in the following cases these properties will continue to vest with the Custodian: (i) the enemy’s death, (ii) if the legal heir is an Indian, (iii) enemy changes his nationality to that of another country, etc. Also, vesting of enemy property with the Custodian will mean that all rights, titles and interests in the property will vest with the Custodian. The Custodian shall preserve the same until it is disposed of by the Custodian, with the prior approval of the Central Government, in accordance with the provisions of the Act.  No enemy or enemy subject or enemy firm shall have any right, and shall never be deemed to have any right to transfer any property vested in the Custodian, and any transfer of such property shall be void. This means that a person who may have bought an enemy property (after 1968) in good faith when such sale and purchase was legal, now stands to lose the property.  The Central Government may transfer property vested in the Custodian which was not actually enemy property to the person who was aggrieved by the vesting order issued by the Custodian.  No civil court or other authority shall entertain any suit or proceeding in respect of any enemy property or any action taken by the Government or the Custodian.

ANALYSIS While the Government has said the amendments are in the "larger public interest" and will “plug loopholes to ensure that enemy properties worth thousands of crores (millions) of rupees do not revert to the enemy or enemy firm”, these changes have been criticised on numerous counts:  New class of “Citizen-Enemies”: By including legal heirs of the enemy, who are Indian citizens within the definition of “Enemy”; the amendment has created a different category of citizens, the ones who are Indians by birth, live here, hold Indian passports, participate in Indian democratic processes but are enemies when it comes to the actions of their forefathers.  Lack of clarity: How will the new definition vis-à-vis enemy property law impact an Indian citizen (who comes under the new definition of “Enemy”) and his/her enjoyment of other legal, constitutional and fundamental rights?  Violation of Article 14: Citizens, except when historically disadvantaged, are equal in terms of Article 14. Here, the amendment categorises Citizens into two classes, those who are heirs/ successors to enemies and those who are not, depriving the former of crucial rights to property and succession. NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 35

 Affects third-party owners’ settled rights over property bought from Indian enemies: The new law creates a situation where an Indian citizen who has legally bought and developed an enemy property after 1968, will be divested of his rights in the property. This situation could be challenged as a violation of Article 14, which guarantees the right to equality and protects people from arbitrary actions of the government.  Changes termed as “anti-minority”: The Ministry of Home Affairs has pegged the number of immoveable properties belonging to Pakistani nationals at 9,280, compared with a paltry 149 properties belonging to Chinese nationals. Thus, the expanded definition of enemy can be seen impacting the Muslim community more than others.  Judicial Recourse: Judicial recourse on enemy property disputes will only be available before High Courts and the Supreme Court, limiting the options available to people whose property rights have been affected. Pakistan has not been declared an enemy state by India. And at a time when it continues to enjoy “most favoured nation” status (which confers upon it trade benefits), treating citizens within India in a discriminatory manner, due to they being the successors of those who left to Pakistan and China, is not an apt decision. The government needs to reconsider its decision and make the required changes so that neither the Indian citizens are discriminated nor the ideals of unity and secularism are disturbed.

17. REORAGANIZATION OF TRIBUNALS – THE FINANCE ACT, 2017

Government in Finance Act 2017 have made sweeping changes with respect to certain tribunals by merging them with other tribunals.  The Competition Appellate Tribunal will be merged with the National Company Law Appellate Tribunal.  The Cyber Appellate Tribunal and Airports Economic Regulatory Authority Appellate Tribunal will be merged with the Telecom Disputes Settlement and Appellate Tribunal.  The Industrial Tribunal is also to perform the functions of the Employees Provident Funds Appellate Tribunal  The Copyright Board will be merged with the Intellectual Property Appellate Board.  The National Highways Tribunal will be taken over by the Airport Appellate Tribunal.  The Railways Rates Tribunal will be replaced by the Railway Claims Tribunal.  The Appellate Tribunal for Foreign Exchange under The Foreign Exchange Management Act, 1999 will now fall under the Appellate Tribunal The rules made under the Act will allow the Government to set a criteria for the appointment and removal of chairperson, vice-chairperson and other members of the tribunals and decide on their terms of service. One such tribunal affected by the Rules is the nation’s environmental watchdog, the National Green Tribunal (the NGT).

REFORMS IN NATIONAL GREEN TRIBUNAL The TSR Subramanian Committee, a high-level committee formed to review India’s environmental laws had recommended the curtailing of the NGT’s powers and even proposed critical dilutions of environmental statutes.

NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 36

Committee for appointing NGT members: • Appointments of chairpersons and judicial members of the NGT will now be made only on the recommendation of a committee comprising five persons, of which the Chief Justice (or his nominee) will be the only member from the judiciary. Previously, the selection committee for these appointments comprised a judge of the Supreme Court and the Chairperson of the tribunal in addition to a government official. •

The selection of NGT’s expert (technical) will be done by a five-member committee, which does not include a single person from the judiciary unlike the previous structure involving two judicial persons.

The criteria for appointment of these chairpersons, judicial members:

• Earlier, the Chairperson of the NGT had to be (or have been) a judge of the Supreme Court or a chief justice of a high court. Now, even a judicial or expert member holding office for not less than three years or a person with 25 years of professional experience in law can be selected as a Chairperson.

• The criteria for judicial members have been relaxed and holders of judicial offices for 10 years are also eligible for appointment, unlike the previous requirement of being a past or present judge of the Supreme Court or a high court. This means that judicial magistrates, district and lower court judges previously appointed by the government can now become judicial members unlike before.

REFORMS IN OTHER TRIBUNALS Airports Appellate Tribunal: Earlier, the Chairperson had to be (or have been) a high court judge who was appointed after consultation with the Chief Justice of India. As per the new rules, even a person with 25 years of professional experience can be selected as Chairperson and the requirement of prior consultation with the Chief Justice has been removed and replaced with a body of government officials and appointees. Telecom Disputes Settlement and Appellate Tribunal: The minimum requirement of the Chairperson has been diluted from being a past or present judge of the Supreme Court or a Chief Justice of a high court to include a person with 25 years of professional experience eligible for the position.

MERITS: 1. 2. 3. 4.

Help in rationalising tribunals. Speed up the dispute resolution and improve efficency. Curb wasteful expenditures. Uniformity in administrative rules will help in streamlining the functioning of these quasi-judicial bodies and ensure that vacancies aren’t kept pending for long.

DEMERITS: 1. Merging might lead to overburdening the tribunals with more cases than it could handle. 2. Allowing the executive to determine appointment, reappointment and removal of members could affect the independent functioning of the tribunals. 3. Instances of possible conflict of interest if the government is the litigant before a Tribunal, given that it has direct role in the appointment of its chairperson and members. 4. Merging criteria: NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 37



There are arguments that Competition Appellate Tribunal (Compat) is not fit to merge with any other tribunal as it is too specialized and deals with complex matters. Dissolving Compat and merging with the NCLT could defeat the focus of competition law in India. • The Airport Economic Regulatory Authority Appellate Tribunal merged into the Telecom Dispute Settlements and Appellate Tribunal appears incongruous. 5. Increasing control of the Centre over tribunals will be contrary to the spirit and principles laid down by the Supreme Court to ensure fairness and jurisprudence. Section 179 of the Finance Bill transfers enormous powers from Parliament to the Centre.

WAY FORWARD India has a number of tribunals to look into appeals made from orders of specific regulators or sectors. Hence post merging, the Centre will have to ensure specialisation of the tribunals, the absence of which would lead to overlap and confusion. High courts that deal with all matters have dedicated benches. Similarly in tribunals too, specific cases can be dealt by respective benches. Experts from diverse backgrounds, can be appointed to deal with varied industry matters. The government must ensure the independence of the tribunal – a requirement that is part of the basic structure of the constitution.

18. NITI AAYOG ABOUT NITI AAYOG:    

National Institution for Transforming India. A premier policy ‘Think Tank’ of the Government of India. Provides both directional and policy inputs. Was formed in 2015 through cabinet resolution by replacing Planning Commission.

ORGANISATIONAL STRUCTURE:  Chairperson: Prime Minister  Governing Council: chief ministers and Lt. Governors of Union Territories.  Regional Councils: Chief ministers and Lt. Governors of Union Territories formed for addressing specific issues and for specified tenure.

FUNCTIONS OF NITI AAYOG: • • • • •



To evolve a shared vision of national development priorities sectors and strategies. To bring States to act together in national interest, and thereby foster Cooperative Federalism. To develop mechanisms to formulate credible plans at the village level and aggregate these progressively at higher levels of government through “bottom-up” approach. To design strategic and long term policy and programme frameworks. To actively monitor and evaluate the implementation of programmes and initiatives, including the identification of the needed resources so as to strengthen the probability of success and scope of delivery. To focus on technology upgradation and capacity building for implementation of programmes and initiatives.

NITI AAYOG VS. PLANNING COMMISSSION:  Fund allocation: Planning Commission had powers to allocate funds to ministries and states. Now, this function will be with the finance ministry and Niti Aayog will be purely a think tank. NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 38

 Role and influence of States: with the Governing Council consisting of chief ministers of states, and decisions are taken through consensus, the influence of states have increased when compared to Planning Commission.  Approach: Niti Aayog promotes bottom-up approach when compared to Planning Commission that was criticised of top-bottom approach.  Regional Council was absent in Planning Commission.  The inclusion of national security along with the domestic issues have made it different from Planning Commission, that mainly had focussed on domestic issues.

ANALYSIS: 









Niti Aayog had proposed numerous laws and policies like the model land leasing law, National Energy Policy. Made noteworthy recommendations: reforms in Medical Council of India, UGC, Atal Innovation Mission. Fostered cooperative federalism: formation of sub groups of Chief ministers (Sub-Group of Chief Ministers on Rationalization of Centrally Sponsored Schemes, Sub-Group of Chief Ministers on Swachh Bharat Abhiyan, Sub-Group of Chief Ministers on Skill Development) Promoted Competitive federalism by ranking states on different indices (Ease of doing business ranking, ‘Agriculture Marketing and Farmer Friendly Reforms Index’) Have undertook evaluation and monitoring of major investments: the recommendations on closure or disinvestment of PSUs.

CRITICAL ANALYSIS: The distance of Niti Aayog from the government: an adequate distance from the government is very essential for a think tank to take objective and independent opinions. Though Niti Aayog has made numerous recommendations, government had not enforced them. Lack of proper analysis w.r.t Millenium development goals: this is needed for the successful attainment of Sustainable Development goals. THREE YEAR ACTION AGENDA (2017-2020):  The five year action plan has now been replaced by a three-year action plan. This would be part of a seven-year strategy that would in turn help realise a 15-year long-term vision, for the attainment of New India. This ‘New India’, will ensure housing for all, with toilets, LPG, power and digital connections; and a fully literate population with universal health care and a clean India.  The three-year action plan has suggested shifting the composition of expenditures by allocating a larger proportion of additional revenues that become available over time to highpriority sectors (education, health, agriculture, rural development, defence, railways, roads and other categories of capital expenditure) .Under the proposed agenda, the share of nondevelopmental revenue expenditure in total expenditure would decline from 47% in 2015-16 to 41% in 2019-20 at the same time the share of capital expenditure, which is more likely to promote development, would rise significantly.  Components: Agriculture (Doubling Farmers’ Incomes by 2022), Industry and Services (Job Creation), Urban Development, Regional strategies, Transport and Digital Connectivity, Science & Technology, Energy, Governance, Taxation and Regulation, Education and Skill Development, Building an Inclusive Society, Health, Environment and Water Resources.

NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 39

ANALYSIS: The Agenda has rightly been called as “textbook of reforms”. With the agenda comprehensively covering most of the sectors, it do serve as a base of knowledge and analysis to support any future discussion on policy reforms. However, agenda has been criticised for having too many goals without the needed prioritisation. The timelines for the attainment of certain goals have been criticised as unrealistic. Also, rather than focussing for a literate population, New India should focus on skilled population, which is in need for the country.

WAY FORWARD: Two years after its formation, Niti Aayog has been functioning well when compared to its predecessor, Planning Commission. In the coming years, Niti Aayog should focus on specific issues (like the SDGs after proper review of MDGs, trends of jobs in past few years given the jobless growth in the country, trade policy given the present reverses in globalisation), ensure the promotion of both cooperative and competitive federalism in a balanced manner, evaluation of the outcomes of the programmes, and also maintain the minimum but able staffs.

19. CBFC AND FREEDOM OF SPEECH AND EXPRESSION The Central Board of Film Certification (CBFC) is a content certifying statutory body for the purpose of sanctioning films for public exhibition. It is set up under the Cinematograph Act, 1952. Its mandate is to regulate public exhibition of films. A key provision that the CBFC has to keep in mind is Section 5B(I) of the Cinematograph Act, which says that a film shall not be certified if any part of it is against the interest of the sovereignty and integrity of India, the security of the state, friendly relations in foreign states, public order, decency or involves defamation or contempt of court or is likely to incite commission of any offence.

ISSUE: The CBFC has over the years turned out to be a censor board for movies and its functioning has been widely criticised. Its refusal to certify movies like Lipstick Under My Burkha, and demands for cuts in many films have again ignited the debate on its functioning as censor board.

CRITICISMS RAISED AGAINST BANS:  Legal issue: Whether censoring films and protesting against the freedom of the artists are legally justified under Article 19 (2) of the Constitution of India or not. The ban on the ground of public order or obscenity, at times, might be justified. But the prohibition on the grounds that the film “hurts the pride of the people of the nation”, or “hurts the religious sentiments of a community”, or that “it defies Indian sensibility”, or “it is against the Indian ethos or culture”, or “it is woman-oriented” are clearly untenable. For such grounds are not covered by Art. 19 (2) of the Constitution of India.  Depriving the majority: Unreasonable restrictions at the behest of fringe groups deprive the majority of the people of their right to see, and to enjoy good literature and good art. While we worry about the sentiments of the few, we ignore the rights of the many.  One of the reasons for democracy to survive in India is the ability of Indians to accept diverse thoughts and philosophies, cultures and lifestyles within their fold. But extra-constitutional bans restrict the free flow of information, of thoughts, of imagination, of creativity. Such bans are

NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 40

thus against the constitutional philosophy, against the rule of law, against democracy, and against our national interest.  The examining committee tends to see and judge a film on the basis of a song or a dialogue in a film and not the whole. They tend to look at a dialogue and not the context in which it is placed resulting in either meaningless cuts or ban on the movies.  In the age of information technology, such bans are not effective. For the proscribed films are readily available on the Internet. They can be downloaded and enjoyed. Such bans thus motivate people to break the law and to dilute the rule of law.

WAY FORWARD: The power of the visual medium can never be overstated. It carries with it the potential to instil violent modes of behaviour and cannot be equated with other modes of communication. That is why films have to be certified in order for them to be exhibited in a public place according to age as Unrestricted, Adult or Under Parental Guidance or Special category. But, the ban on films which criticise the nation clearly reveals our immaturity in accepting criticism of ourselves. Similarly, bans on films which raise modern issues of the condition of women in India, or on issues of sexual identity should not be banned especially when the question of the rights of the LGBT community is being debated as a constitutional issue, and as part of human rights.  The first thing that needs to be done is to do away with the notion that the CBFC, which is a film certification body, is a film censoring authority.  Need for a multi-layered solution to the present censorship regime in India: The industry must set up the Film Council of India to deal with civil society grievances. The CBFC’s scope must be limited to certification, with no powers to maim, mutilate or ban any film. For any film it finds ‘objectionable’, the CBFC should refer it to the Film Certification Tribunal. The tribunal comprising retired judges, lawyers, filmmakers, writers and artists must become the sole forum for a considered dialogue with the filmmaker concerning any ‘censorship’ of their work.  Give due weightage to the report of the committee of experts which was headed by Shyam Benegal, which examined the prevailing practices and drew up broad guidelines and procedure for certification of films by the CBFC. The recommendations made were: a)

b)

c) d)

The artistic expression and creative freedom of film-makers must be protected. There must be objectively laid down parameters for certification, rather than moral policing on what should or what should not be shown to the audiences. The scope of the CBFC should be only to decide who and what category of audiences can watch a film. Should a film violate Section 5B (I) of the Act or exceed the limitations defined in the highest category of certification, recommended by this committee, the CBFC would be within its rights to reject certification to a film. The CBFC should not be authorised to dictate excisions, modifications and amendments. The committee has said that the CBFC’s categorisation should be a sort of a statutory warning for audiences for what to expect if they were to watch a particular film. “Once the CBFC has issued this statutory warning, film viewing is a consensual act, and up to the viewers of that category”.

NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 41

e)

The categorisation of films needs to be changed too with the addition of a Adult with Caution (A-C) category for films which may contain explicit material involving violence etc.

CONCLUSION The Hindi film industry is arguably India’s pop-cultural glue and its biggest source of soft power. It needs to be encouraged. The state must stand up for those who want to speak and sing and create, so that Freedom speech and expression which is a foundational value of the Indian republic, guaranteed by the Constitution, remains intact.

NEO IAS 0484-3190310, 9446331522, 9446334122 9446331522 www.neoias.com | www.youtube.com | www.facebook.com/neoias | www.twitter.com/neoias

Page 42