Note4Students

Enemy property amendment bill caused large uproar in the parliament. Opposition called it as a anti minority bill. It also budded as undermining fundamental right guaranteed under article 14. So it is important to understand the details of enemy property act.

Introduction

Parliament passed The Enemy Property (Amendment and Validation) Bill, 2016, incorporating comprehensive amendments to the law relating to confiscation of enemy property in India.

What is Enemy Property Act?

1. When wars broke out between India and China in 1962, and India and Pakistan in 1965 and 1971, the central government took over properties of citizens of China and Pakistan in India under the Defence of India Acts.
2. These Acts defined an ‘enemy’ as a country that committed an act of aggression against India, and its citizens. The properties of enemies in India were classified as enemy property. The properties included land, buildings, shares held in companies, gold and jewellery of the citizens of enemy countries. The responsibility of the administration of enemy properties was handed over to the Custodian of Enemy Property, an office under the central government.
3. The Defence of India Acts were temporary laws that ceased to operate after the wars ended. To administer the enemy property seized during the wars, the government enacted the Enemy Property Act in 1968.
4. This law laid down the powers of the Custodian of Enemy Property for management and preservation of the enemy properties.
5. The Enemy Property Act gave enemy citizens certain rights with respect to their properties vested in the Custodian. But the ambiguity in their rights and the powers of the Custodian to administer these properties resulted in disputes being raised before the courts. Some of these disputes related to Indian citizens challenging whether they could inherit enemy properties belonging to their ancestors who were nationals of enemy countries.

Recent Developments:

1. In 2010, the government issued an Ordinance to expand the powers of the Custodian regarding enemy property. It sought to permanently vest enemy property in the Custodian even in case of the enemy’s death or a change in his nationality. However, the Ordinance lapsed.
2. The issue of enemy property attracted legislative interest again in 2016 when five more Ordinances were issued on the subject. These Ordinances went a step further and vested ownership rights over enemy property in the Custodian. This effectively negated the Supreme Court decision of 2005, and made the central government the owner of enemy property.

ANALYSIS

IMPORTANANT SECTIONS OF BILL

1. 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, and also include the succeeding firm of an enemy firm in the definition of “enemy firm” irrespective of the nationality of its members or partners.
2. The enemy property shall continue to vest in the Custodian even if the enemy or enemy subject or enemy firm ceases to be an enemy due to death, extinction, winding up of business or change of nationality or that the legal heir or successor is a citizen of India or a citizen of a country which is not an enemy.
3. The enemy property shall continue to vest in the Custodian with all rights, title and interest in the property, and 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.
4. The law of succession or any custom or usage governing succession shall not apply in relation to enemy property.
5. 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.
6. The amendments through the Ordinance include that once an enemy property is vested in the Custodian, it shall continue to be vested in him as enemy property irrespective of whether the enemy, enemy subject or enemy firm has ceased to be an enemy due to reasons such as death etc;
7. There cannot be transfer of any property vested in the Custodian by an enemy or enemy subject or enemy firm and that the Custodian shall preserve the enemy property till it is disposed of in accordance with the provisions of the Act.
8. The Custodian, with prior approval of the Central Government, may dispose of enemy properties vested in him in accordance with the provisions of the Act, and for this purpose, the Government may issue such directions to the Custodian that shall be binding upon him.
9. 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.
10. 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.

Issues Involved

1. 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.
2. This situation could be challenged in court as a violation of Article 14 , which guarantees the right to equality and protects people from arbitrary actions of the government.
3. Further, following the passage of the Bill, 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.
4. The thrust of the amendments is to guard against claims of succession or transfer of properties left by people who migrated to Pakistan and China after the wars.
5. The amendments deny legal heirs any right over enemy property. The main aim is to negate the effect of a court judgment in this regard. The Act gives the sole right of disposal of enemy property to the Custodian.
6. Once an enemy property is vested in the Custodian, it shall continue to be vested in him as enemy property irrespective of whether the enemy, enemy subject or enemy firm has ceased to be an enemy due to reasons such as death etc.,
7. Law of succession does not apply to enemy property, that there cannot be transfer of any property vested in the Custodian by an enemy or enemy subject or enemy firm, and the Custodian shall preserve the enemy property till it is disposed of in accordance with the provisions of the Act.

Conclusion

The amendments are aimed at plugging the loopholes in the Act to ensure that the enemy properties that have been vested in the Custodian remain so and do not revert to the enemy subject or firm.

Q.What are the prime concerns regarding enemy property act?

Note4Students:

The idea of holding simultaneous elections for both Lok Sabha and Vidhan Sabha has been recommended by many experts. This topic is important for mains as it is in news from quite some time.

Introduction

Some time back, honourable PM had recommended holding of simultaneous Lok Sabha and Assembly elections all over the country which has reignited the age old debate .In this article we will highlight the pros and cons of holding elections simultaneously.

Pros of holding elections simultaneously

Allow government to focus on development as frequent elections leads to Governance Problem

1. Whenever elections are announced the normal work comes to a standstill to a considerable extent due to MCC. This means that the government cannot announce any new schemes, make any new appointments, and the district administration machinery gets totally focused on elections. Holding simultaneous elections will solve this problem as MCC will not be implemented at separate time for Lok sabha and Vidhan sabha.

Reduce expenditure on polls

1. Holding elections simultaneously is a costly affair since in last few decades. Holding elections together reduces expenditure made by political parties on election campaigns because of frequent elections.

Allows leaders not to be always engaged in campaigning

1. Holding elections at one time will allow the political leaders to focus more on governance rather than on election campaigning.

Increase in voting percentage:

1. This would lead to improvement in voting percentage as migrant workers would have to move back to home town only once for polling their vote.

Reduce money spent on manpower deployment:

1. When elections are held separately, crucial manpower has to be deployed for prolonged periods on election duty. This idea will save the large amount of money spent on manpower deployment.
2. Overall, conducting the election once will bring down the overall cost of conducting election in terms of distributing voter slips, bringing the staff, calling the Central personnel, delay in schemes deemed as popular, etc.

Cons of holding elections together

1. Frequent elections are beneficial in number of ways as politicians, who tend to forget voters after the elections for five years have to return to them. This enhances accountability, elections give a boost to the economy at the grassroots level, creating work opportunities for lakhs of people. Holding elections at one time will close these opportunities.
2. If elections are held simultaneously, this would lead to mixing of national and local issues to distort priorities. In voters’ minds, local issues might overtake wider state and national issues or vice versa.
3. Simultaneous conduct of elections would require large-scale purchase of Electronic Voting Machines and Voter Verifiable Paper Audit Trail (VVPAT) machines. The machines would also need to be replaced every 15 years which would again entail expenditure. Further, storing these machines would increase the warehousing cost.
4. There are some Practical problems in implementing the scheme for example Imagine a scenario when the Lok Sabha gets dissolved too early (in 13 days, as actually happened in 1998), and for the sake of simultaneity all state assemblies with full or thin majority are also dissolved. And then, in the resultant Lok Sabha elections, the same party comes to power. This would be unfair to states.
5. The idea of simultaneous elections clearly goes against the constitutional structure of the Indian Parliamentary system. For eg Dissolution of state legislature before completion of 5-year term will break the cycle again thereby rendering the whole exercise futile.
6. Administrative hassles in managing all elections at the same time can leads to incidents of poll rigging and this will put heavy burden on the government in the fiscal year during which elections are conducted.

Way Forward

Holding elections simultaneously is marked by several practical problems which limits its feasibility. However even status quo does not solve the problems mentioned above. We need to find middle ground. Following steps can be taken

1. It’s possible to reduce the duration of the election process by half — by conducting the elections in one day. That requires making available to the EC five times the Central armed police force that is currently provided. Raising a few battalions of various paramilitary forces will also give relief to the extremely stretched and stressed forces, provide employment and contribute to better enforcement in troubled areas.
2. The other possible and desirable action is to cut the role of money power in elections. It requires two things: Putting a cap on political party expenditure and state-funding of political parties (not elections), with a simultaneous ban on all private, especially corporate, funds.
3. States can be divided into two groups “ for eg. one group of states going to the polls in November 2018 and another group in June 2021. This way, there will be just two rounds of elections in the country in a five-year period. In order to achieve this, the tenure of the existing state assemblies will have to be curtailed or extended by some months.

Conclusion

The similar voting at both and center and states is a concern in case of holding elections simultaneously. Many votes do not discern the difference due to lack of education, apathy, etc. So understanding individual manifestos of the parties at the Center and state requires the different election.

Questions:

(Q) It is commented that conducting elections for all 3 tiers of Government simultaneously would improve the Governance in the country. Comment. Also highlight the Practical difficulties in holding simultaneous elections.

(Q) Discuss the merits and demerits of conducting simultaneous elections for State Assemblies and Parliament.

Sources

http://indianexpress.com/article/opinion/columns/simultaneous-elections-lok-sabha-narendra-modi-save-money-stable-government-2928409/

http://www.thehindu.com/opinion/letters/simultaneous-elections/article18348658.ece

https://thewire.in/131341/parliament-state-assembly-simultaneous-elections-democracy/

http://www.thehindubusinessline.com/opinion/columns/analysing-impact-of-simultaneous-polls/article9522924.ece

Context

1. It has been debated from long that the no-detention policy should be scrapped as it has negatively impacted quality of basic education in the country. Recently, Union Cabinet has approved the scrapping of the no-detention policy in schools till Class VIII.
2. Various states, including Delhi, have raised serious objections against the no-detention policy, citing it as a reason of high failure and drop-outs in classes 9 and 10.

What does it mean?

1. It means that an enabling provision will be made in the Right to Education Act which will allow states to detain students in class 5 and class 8 if they fail in the year-end exam.

What is no detention policy?

1. As per the No Detention Policy, no student can be failed or expelled from school till the completion of elementary education covering classes 1 to 8. All the students up till Class VIII will automatically be promoted to next class.

Analysis

Reasons why ‘no detention policy’ should be scrapped:

1. Negative impact on standard of education: It has led to increased failure rate in classes 9th and 10^th. Hence, if the ‘no detention policy’ continues, it will leave a negative impact on the standard of education and force the children to face more harsh future.

2. This policy has led to students developing a casual attitude, with there being no risk of failing. The teachers have also become lethargic & started showing lesser interest towards academics.

3. With the policy in place, the Education Department does not take steps to revamp itself and the teachers do not take the pain to ensure a good education to the children.

4. Dark future of students: Students will face problem in their coming life because of no good education in the schools as their learning level would be very low.

5. Zero academic outcome: If no merit is checked while giving promotion to another class, the children will never learn the importance of studying and acquiring knowledge. It will lead to poor academic outcome in classes.

Reasons why no detention policy should be continued

1. Reducing dropouts from the schools due to peer pressure was the main reason the Right to Education Act included the no-detention provision, if it is reversed many students would stop going to schools when they fail due to pressure from peers and family.
2. Section 29 (2) (h) of the RTE Act makes comprehensive and continuous evaluation (CCE) mandatory, wherein schools are expected to use test results to improve teaching and learning of the child and visualise evaluation as a diagnostic tool to improve learning. So scrapping the policy is not a solution, infact it should be modified and corrected.
3. If a student is made to repeat a grade, there’s a strong chance he or she will discontinue learning.
4. There can be modification such as each school should conduct exams to ascertain which student is weak in what subject rather than scrapping the whole policy.

Way forward

1. The phenomenon of poor learning outcomes is the product of many factors which influence learning, and should not be conveniently pinned to the door of the no-detention policy. The steps that can be taken to improve learning outcomes can be:
2. measuring learning level outcomes of all children on a regular basis,
3. catalysing a “performance-driven culture” and rewarding high performers at every level,
4. changing stakeholders’ mindset and preparing them for new provisions, in which parents are made responsible or accountable for full attendance of their children.
5. The policy should be implemented in a phased manner and a scale-up to all classes should be undertaken only after the critical infrastructural, teacher strength and teachers’ skill-set requirements are fully met.

Conclusion

Rather than addressing the core issues that affect quality of education in the country, the entire focus seems to be shifting to bring back the pass/fail model. It is high time steps are taken to remove the other flaws that exist.

Hence, the policy should either be renovated with adequate changes to neutralize the ill effects or replaced with a new policy that would take a balanced approach.

Source

https://scroll.in/latest/845915/cabinet-approves-scrapping-of-no-detention-policy-in-schools

http://indianexpress.com/article/opinion/editorials/right-to-education-act-no-detention-policy-ndp-school-students-4785429/

http://indianexpress.com/article/explained/simply-put-the-no-fail-policy-may-have-failed-what-now/

http://www.thehindu.com/news/cities/chennai/no-detention-policy-works/article3429830.ece

Note4Students:

India is facing a lot of inter-state water disputes. Most of the tribunals that have been set up have failed to arrive at a solution. Will this new mechanism solve the problem? This is important from context of GS-2.

Context

In view of the ongoing water disputes in the country, Union Cabinet has proposed to have a permanent tribunal that will subsume existing tribunals and is expected to provide for speedier adjudication.

Constitutional provisions related to water

1. Water is a State subject as per entry 17 of State List and thus states are empowered to enact legislation on water.
2. Entry 17 of State List deals with water i.e. water supply, irrigation, canal, drainage, embankments, water storage and water power.
3. Entry 56 of Union List gives power to the Union Government for the regulation and development of interstate rivers and river valleys to the extent declared by Parliament to be expedient in the public interest.

Constitutional provision related to water disputes

1. In the case of disputes relating to waters, Article 262 provides:
2. Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-State river or river valley.
3. Notwithstanding anything in this Constitution, Parliament may, by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint.
4. At present, the resolution of water dispute is governed by the Inter-State Water Disputes Act, 1956. According to its provisions, a state government can approach the Centre to refer the dispute to a tribunal, whose decision is considered final.

What are the problems in present set-up?

1. With increasing demand for water, inter-state river water disputes are on the rise.
2. Under the present Act, a separate Tribunal has to be established for each dispute and there is no time limit for adjudication or publication of reports.
3. Only three of the eight tribunals have actually given awards accepted by the states. Tribunals like those on the Cauvery and Ravi Beas have been in existence for over 26 and 30 years respectively without any award.

Features of new structure

1. A single, permanent tribunal subsuming all the existing tribunals is proposed to be established to resolve grievances of states with speed and efficiency.
2. The proposed tribunal is expected to deliver its verdict within a span of three years.
3. In addition, the proposed tribunal is expected to have more teeth as its verdict will get automatically notified. Until now, the verdicts of the tribunals were notified by the government. This practice was causing delays in the implementation of the orders of the tribunals.
4. Along with the tribunal, the amendment has also proposed to set up Dispute Resolution Committee (DRC) to handle disputes prior to the tribunal.
5. It calls for the transparent data collection system at the national level for each river basin and a single agency to maintain data bank and information system.

Present Inter-State river water disputes under the Inter-State River Water Disputes Act (ISRWD), 1956

Sources

https://www.google.co.in/imgres?imgurl=http%3A%2F%2Fwww.livemint.com%2Fr%2FLiveMint%2FPeriod2%2F2016%2F09%2F08%2FPhotos%2FProcessed%2Fweb_War_of_Water.jpg&imgrefurl=http%3A%2F%2Fwww.livemint.com%2FPolitics%2FSD0UuNs3smZFvOHO4RHupN%2FCauvery-faceoff-puts-spotlight-on-water-wars.html&docid=i0C27wVpQkp7jM&tbnid=XPDAy0Qbv-NmwM%3A&vet=10ahUKEwj19s-GudPVAhVBOY8KHddfD18QMwgnKAEwAQ..i&w=932&h=473&bih=611&biw=1343&q=Setting%20up%20of%20common%20water%20disputes%20settlement%20tribunal%20livemint&ved=0ahUKEwj19s-GudPVAhVBOY8KHddfD18QMwgnKAEwAQ&iact=mrc&uact=8

Analysis of the new setup

Benefits

1. 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 as it is expected to provide for speedier adjudication.
2. An expert agency to collect data on rainfall, irrigation and surface water flows acquires importance and looks like an ideal mechanism to apportion water because party-States have a tendency to fiercely question data provided by the other side.
3. The Dispute Resolution Committee, an expert body that will seek to resolve inter-State differences before a tribunal is approached will discourage for needless litigation.
4. Water disputes are highly politicised and a strong public opinion forms around these issues. A single tribunal would address this issue as it would not be questioned for being politically biased.

Criticism

1. Given the number of ongoing inter-State disputes and those likely to arise in future, it may be difficult for a single institution with a former Supreme Court judge as its chairperson to give its ruling within three years.
2. The finality and enforcement of a tribunal’s award may remain elusive as its interlocutory orders as well as final award are likely to be challenged in the Supreme Court. .
3. The benches of the permanent tribunal are going to be created to look into disputes as and when they arise. It is not clear in what way these temporary benches would be different from the present tribunals.
4. There is a severe lack of comprehensive data that looks at hydrology, meteorology, ecology and economy in an integrated fashion. Without having that data backbone, it will be difficult for a state-level tribunal or a central body to solve any issue.
5. The new tribunal does not address the problem of non-compliance by state governments like in the recent Beas-Satluj Tribunal award.

Conclusion

1. Having an institutional mechanism is one thing, but infusing a sense of responsibility in State governments is quite another. Water disputes have humanitarian dimensions, including agrarian problems worsened by drought and monsoon failures.
2. The Centre’s proposal to set up a single, permanent tribunal, subsuming all existing ad hoc tribunals, to adjudicate on inter-state river water disputes could be a major step towards streamlining the dispute redressal mechanism. But it alone will not be able to address the different kinds of problems—legal, administrative, constitutional and political—that plague the overall framework. Institutional mechanisms should be backed by the political will to make them work.

Sources

http://www.hindustantimes.com/editorials/an-omnibus-court-for-solving-water-disputes-may-not-be-a-panacea/story-l24SjANHpt9CuXQ9BYb47O.html

http://www.livemint.com/Opinion/JDRZ3dpZdFPes9qiULWUgO/Addressing-Indias-water-dispute-problem.html

http://www.thehindu.com/opinion/editorial/Grappling-with-water-disputes/article16906692.ece

https://factly.in/major-inter-state-water-disputes-country/

http://indianexpress.com/article/india/government-to-set-up-single-tribunal-for-inter-state-water-disputes-sharing-problem-4429323/

Question

Q.1) The Centre’s proposal to set up a single, permanent tribunal to solve inter-state river water disputes could be a major step towards streamlining the dispute redressal mechanism. Examine.

Q.2) What are the existing constitutional and legal provisions regarding water? Discuss the pros and cons of setting up a common tribunal to solve inter-state water disputes?

Q.3) Discuss the pros and cons of having permanent river water tribunal in India where there is significant number of such disputes.

Note4Students:

It was debated from long time to give voting rights to NRIs in some form. The govt has proposed for giving proxy voting rights. Lets see what the debate is all about?

Context

1. The Union Cabinet has cleared a proposal to extend proxy voting to overseas Indians by amending electoral laws.

What is proxy voting and voting by postal ballot?

1. Proxy voting is a type of voting whereby a member can delegate his or her voting power to a representative, to enable a vote in their absence.
2. The representative can be another member of the same body, or external. A human so designated is known as a “proxy”. Presently, only service personnel are permitted to vote through proxy.
3. Postal ballot voting describes the method of voting in an election whereby ballot papers are distributed or returned by post.

About the proxy voting to NRIs

The proxy voting facility would be provided to overseas electors under the following conditions:

(i) One person can act as the proxy for only one overseas elector.

(ii) Only a person already enrolled in the same constituency in which the overseas elector is enrolled can be appointed as proxy for overseas elector.

(iii) The appointment of a proxy shall be valid till the time it is revoked by the elector who can then make a fresh appointment of proxy.

Who will benefit?

1. All Indian passport holders physically not in India at the time their municipality, state or India goes to polls.
2. What about PIO/OCI card holders then? Can they vote? NO. NRIs are not Persons of Indian Origin (PIO).

Which Law has to amended?

1. Representation of People Act, 1950 has to be amended to allow Indian nationals not in Indian territory to vote.

Analysis

Advantages

1. The government’s decision to allow NRIs to vote could emerge as a decisive force in the country’s electoral politics as there are 114 countries that conduct such voting.
2. It will enable India to provide voting rights to NRIs which are enshrined to be given under Article 326.
3. This decision also, historically, removes an “unreasonable restriction” posed by Section 20(A) of the Representation of the People (Amendment) Act of 2010, requiring overseas electors to be physically present in their constituencies to cast their votes.
4. There are 10 million Indian citizens staying abroad. The additional votes, polled through this way, will obviously play a crucial role in state and general elections.
5. The traditional argument against such external voting has been that NRIs lack knowledge of domestic conditions. But, today with increased awareness among people who live in other nations, India’s move towards enabling voting from overseas is an instance of a larger global trend towards increased citizen participation.

Criticism

1. There are arguments that a provision of proxy threatens the very core of democracy as how can we give special privilege of distance voting to some people who have migrated abroad when there are many times more domestic migrants who also seek to have a voting right at their homes? It is patently discriminatory. If a person from Bihar moves to Delhi or Mumbai in search of a job or education, he loses his right to chose his legislator in his village but if he goes to London, he will be entitled to special privilege.
2. It cannot be guaranteed that the proxy voter will vote as per the wishes of the actual voter. The method of proxy voting suffers from an inherent problem of trust deficiency and violates the principle of secrecy of voting.
3. Voting from abroad is fraught with other practical challenges like confirming NRI voters before every election and ensuring their post is received on time.
4. There can be no guarantee of NRI voters exercising their vote in a free and fair manner as there can be no check on coercion or inducements by the employers.
5. There is no guarantee that votes would not be sold to the so called proxy.
6. The commission would have to fix the number of votes a proxy could cast in an election. This calls for a drastic amendment to the Representation of People Act. For, currently the Act permits a person to cast only one vote and on introducing the new system, it would have make amendments and also fix the number of vote a person could cast.

Conclusion

Ascertaining the genuineness of the proxy selected by an NRI for casting vote would be the toughest challenge. Before experimenting it in Lok Sabha or Assembly elections, the Election Commission would have to devise a system or work out norms to ensure that a proxy delegated by an NRI is voting as per his desire.

Source

https://thewire.in/165868/nri-proxy-voting/

http://www.thehindu.com/news/national/nod-for-proxy-voting-for-nris/article19411086.ece

http://indianexpress.com/article/india/government-clears-proxy-vote-move-for-nris-4779759/

http://www.thehindu.com/news/national/kerala/challenges-aplenty-for-proxy-voting-for-nris/article19417812.ece

Question:

Q.1) In view of the fact that India doesn’t provide option of proxy voting to its domestic people who migrate to other states, is it fair to give such an option to NRIs who live far off. Give arguments in support of your answer.

Q.2) The government’s idea of providing proxy voting rights to NRIs is seen as a historic decision in the field of providing voting rights to its citizens. Discuss the pros and cons of this decision.

Note4Students

The proposal for establishment of NCA has been discussed over quite period of time. You need to study what are all aspects of the issue.

Context

The Centre and the Supreme Court have been deliberating on establishment of Courts of Appeal from quite some time.

What is a National Court of Appeal?

1. The National Court Appeal with regional benches in Chennai, Mumbai and Kolkata is meant to act as final court of justice in dealing with appeals from the decisions of the High Courts and tribunals within their region in civil, criminal, labour and revenue matters.
2. In such a scenario, the Supreme Court of India situated in Delhi would only hear matters of constitutional law and public law.

Why is there a need for NCA?

Burdening of SC by regular cases:

1. Due to SC being burdened by regular matters like bail pleas, dishonoured cheques, traffic violations, etc. reduce court’s efficiency, it is not able to perform its real mandate of a Constitutional Court.

Give SC time to perform its mandate functions:

1. The setting up of a NCA would take up the Supreme Court’s appeals jurisdiction and will give Supreme Court its much wanted time to perform its mandated functions efficiently.

Increasing geographical proximity:

1. Since the Supreme Court is situated only in New Delhi, it hampers the accessibility to litigants from south India. So, there is an urgent need to establish courts like NCA with regional benches.

Reduce burden on higher judiciary:

1. NCA would help in reducing the burden by disposing the mundane cases; and it may also help in clubbing those cases which needs clarification from the Supreme Court.

Listen to appeals from high courts:

1. If a court of appeal is established, the majority of appeals from high courts can be addressed in these courts.
2. If the Supreme Court only deals with crucial cases, the process will become streamlined and will save a lot of time and expense, for both litigants and the courts.

Relieve the Supreme Court of regular civil and criminal appeals:

It would relieve the Supreme Court of the weight of hearing regular civil and criminal appeals, allowing the court to concentrate on determining only fundamental questions of constitutional importance.

Criticism of the idea

May curtail the powers of the Supreme Court:

1. It is feared that attempts like this are made by the other organs of the state to curtail the constitutional powers of the Supreme Court.

Require constitutional amendment:

1. It is held that the establishment of NCA would require an amendment in Article 130 of the Constitution which in turn would change the constitution of the Supreme Court completely.

May cost heavily on exchequer:

1. The establishment of NCA would increase the burden on the exchequer and similarly the expenses and hardships of the litigants will also increase.
2. Dilution of the Supreme Court and its aura as an apex court may not be in line with the concept of the Supreme Court envisioned by the architects of the Constitution.

What is the Supreme Court’s position on creating an NCA?

1. The Supreme Court itself, as early as in 1986, had recommended establishment of an NCA with regional Benches at Chennai, Mumbai and Kolkata to ease the burden of the Supreme Court and avoid hardship to litigants who have to come all the way to Delhi to fight their cases.
2. But subsequent Chief Justices of India were not inclined to the idea of bifurcation of judicial powers, and that of forming regional benches of the apex court.
3. In February 2016, the Supreme Court admitted Chennai lawyer V. Vasanthakumar’s petition for setting up an NCA.

What is the government’s position on the NCA?

1. The government has rejected the proposal for a National Court of Appeal with regional Benches. It has cited three grounds for rejecting the idea —
2.  As per the constitution the Supreme Court always sits in Delhi,
3. The idea of NCA was consistently opposed by the Chief Justices of India in the past,
4. An NCA would “completely change the constitution of the Supreme Court” and establishing NCA in between the High Court and the SC would be a dilution of the judiciary.

Conclusion

1. The issues concerning the Indian Judiciary as a whole are deep rooted for the NCA to offer a solution. The focus should be made to strengthen the base of judicial edifice instead of trying to alter the core structure of the judiciary.
2. The need of the hour is a more robust subordinate judiciary in the place of the feeble infrastructure to support the justice delivery system. A strong political will is needed to effect changes to ensure smooth and effective functioning of the Supreme Court rather than just making infrastructural changes.

Questions

Q.1) What is a National Court of Appeal? What are the pros and cons of having a NCA?

Q.2) Do you think idea of having a National Court of Appeal will solve the problems of Indian judiciary? What is the government’s and SC view on NCA?

Sources

http://www.thehindu.com/news/national/national-court-of-appeal-the-hindu-explains/article8532094.ece

http://indianexpress.com/article/opinion/columns/across-the-aisle-government-should-back-cji-on-idea-of-a-court-of-appeal/

http://indianexpress.com/article/india/india-news-india/judges-strength-inadequate-to-deal-with-rising-cases-sc/

http://www.livelaw.in/national-court-appeal-sc-constitution-bench-decide-plea/

http://www.financialexpress.com/industry/do-we-really-need-a-national-court-of-appeal/5254/

Note4Students

Liquor banning brings the larger debate effectiveness of single dimensioned approach to achieve a desired target. As states are losing huge amount of revenue , effectiveness of this verdict should be discussed.

Introduction

The Supreme Court has called for a complete ban on sale of liquor along national and state highways.

Supreme Court Judgement

1.All states and union territories shall forthwith cease and desist from granting licences for the sale of liquor along national and state highways;

2.The prohibition contained in above shall extend to and include

i. stretches of such highways which fall within the limits of a municipal corporation, city, town or local authority;

3. All signage’s and advertisements of the availability of liquor shall be prohibited and existing ones removed forthwith both on national and state highways;

4.No shop for the sale of liquor shall be visible

a.from a national or state highway

b.directly accessible from a national or state highway

c.Situated within a distance of 500 metres of the outer edge of the national or state highway or of a service lane along the highway

5.All States and Union territories are mandated to strictly enforce the above directions.

6.These directions issue under Article 142 of the Constitution.

7.Later Supreme Court clarified that any such executive action would not fall foul of the law if the highway was within the city limits.

8.This allows the executive to decide if it should denotify a highway and lose central assistance needed for its upkeep and permit liquor joints to continue within 500 metres on either side.

Analysis

FACTS AND FIGURES

1. A public interest litigation petition was filed by NGO Arrive Safe in the Supreme Court,
2. nearly 1.42 lakh people were killed in road accidents every year, mainly owing to drunk driving.
3. The National Road Safety Council, which was established under the Motor Vehicles Act, 1988, had concluded at a meeting in January 2004 that liquor shops should not be given licences along the National Highways
4. 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 in 2011, 2013 and 2014.
5. The advisory drew attention to the parliamentary mandate of zero tolerance of driving under the influence of alcohol.
6. The Supreme Court also highlighted the Union government’s policy titled ‘Model Policy/taxation/act/rules for alcoholic beverages and alcohol’ issued a decade ago, which advocated a ban on liquor vends situated 220 metres from the middle of the State or National Highways.
7. Although driving under the influence of alcohol or drugs accounted for 3.3% of the total road accidents and 4.6% of the total deaths.
8. The court contended that over-speeding, the prime reason for accidents, could also occur owing to drunk driving.
9. It further said there was a tendency to under-report drunk driving as a cause of accidents and liquor was easily available on the State Highways.
10. revenue loss.: According to estimates by the Federation of Hotel and Restaurant Associations of India (FHRAI), the ban will lead to a loss of ₹2 lakh crore to the exchequer and ₹20,000 crore to the industry. It has estimated that nearly 1 lakh establishments will face the threat of closure.

Outcome of the Judgement

1. State governments face a huge loss in revenue.
2. Smaller administrative units such as Union Territories will be the worst-hit.
3. Such quirky orders have inevitably led to quirky responses.
4. The UT of Chandigarh, for instance, has declared all city roads as urban roads.
5. Puducherry, which includes enclaves such as Mahe, will find relocation of many shops impossible. They are caught between the highway and the sea.
6. Goa, a small State that depends heavily on tourism, is in a similarly difficult situation.
7. The relaxation of the liquor-free zone from 500 m to 220 m from the highways in the case of areas with a population of 20,000 or less might only partly address their concerns. More than a third of the liquor sale and consumption points will be hit.

Arguments Supporting Liquor Ban

1. Bigger lorry and trucks cause the most of highway accidents. The drivers of these vehicles are poor people, usually with lesser concern for safety issues that arise out of drunk driving. A report suggests that almost all truck and bus drivers drink and drive. Government has been trying to keep a check on issuing license to these drivers but to no effect. Ensuring that there is no availability of liquor shops on the highway could be a great measure to help them quit.
2. Distraction to those trying to quit: Recovering alcoholics are the worst. Even if these drivers try to curb the desire to drunk so as to avoid getting caught at check points and losing their license and jobs, the availability of liquor shops along the highway and their advertisement banners entice them back into the trap of death. These are tired people who do not have much expectation from life. Some of them are known to drive for days and nights on a single go. They are much easier to fall back into drinking if there is availability of liquor nearby.

ARGUMENTS AGAINST LIQUOR BAN

1. Attitude of judiciary: This judgment reflects the growing trend among judges to resort to a rather questionable form of judicial law-making.
2. Although a well-intentioned order, it is in flagrant breach of the basic constitutional principle of separation of powers between the legislature, executive and the judiciary.
3. The court may seem to believe that acting in public interest, as a guardian of people’s rights, its powers are unfettered. However, such outright overreach can prove to be highly problematic for the entire system of governance in the country.
4. Availability: People in need of liquor will arrange it .They will pay a local boy to get it from the shops after 500 meters from highway. It is not even 1 km that would bother them to make it think as a very long distance before they can fall into the habit that is usually an addiction for them.
5. Where will all the alcohols go? There are huge numbers of liquor shops along the national and state highways because they must be doing good business there. These are the people who have been protesting on the ban. They will find the illegal way to supply alcohol to the drivers. Put a ban on anything and people have natural instincts to have it more than ever.
6. Recklessness: most of the accidents on highways are a result of drunken driving but is drunker driving a result of liquor shops along the highways? Definitely, no. There are plenty of reasons why there is no reduction on drunken driving. We do not have stringent laws and whatever little we have there is no proper implementation of them.
7. Why not cancel more licenses? Unlike other developed countries there is not much done about cancelling the license of those who drink and drive. They are easily left to go with a small bribery to the officers in charge.
8. Bad roads: Highways are not in very good condition in India. There are potholes and less broad space where vehicles try overtaking each other. There aren’t enough speed checkers in most areas. Even if a person is drunk, like most lorry drivers, they are more likely to remain in their limits if they have the fear of losing their license and job but unfortunately that is not the case here.

CONCLUSION

1. Road accidents are a much bigger problem in India than it is shown to be. People die. Banning alcohol shops within 500 meters range from highway to lessen accidents is like trying to deal with a mad elephants with a string of thread. It needs bigger moves and bigger implication
2. Prohibition as a policy has had a history of failure. While binge-drinking is undoubtedly a health hazard with serious social costs, bans of the sort adopted by courts and State governments such as Bihar are counterproductive. Good intentions do not guarantee good outcomes.

Question

“Only banning of liquor in the highway will not deliver the required Outcome”. Critically analyse

Note4Students:

The NDA government has announced a radical overhaul of the oil and gas exploration policy. It has launched Hydrocarbon exploration and licensing policy to replace the existing NELP which was introduced in 1999.

Hydrocarbon Exploration and Licensing Policy (HELP) is a policy adopted by Government of India on 10.03.2016 indicating the new contractual and fiscal model for award of hydrocarbon acreages towards exploration and production (E&P). HELP is applicable for all future contracts to be awarded.

Background

1. India’s offer of oil and gas exploration blocks under NELP since 1999 had limited success in terms of commercial discoveries and their monetisation. Of the 254 blocks auctioned in the nine NELP rounds, commercial production started in three blocks with total output of 0.4 million tonnes of crude oil and 26.11 million standard cubic metres of gas per day.
2. The present New Exploration Licensing Policy (NELP) has are separate policies and licenses for different hydrocarbons.  Unconventional hydrocarbons (shale gas and shale oil) were unknown when NELP was framed 18 years ago. This fragmented policy framework is leading to inefficiencies in exploiting natural resources. For example, while exploring for one type of hydrocarbon, if a different one is found, it will need separate licensing, adding to cost.
3. The NELP mechanism of profit-sharing where explorers first recovered their costs and then shared profits with the government was severely criticized by the CAG during an audit of KG-D6 block operated by Reliance Industries. The CAG alleged that RIL is exaggerating the costs to lower the government’s profit share.

Key Features of HELP

1. A Single License: A single license for exploration and production of all forms of hydrocarbons in blocks to firms offering the maximum revenue to the government would be given.
2. Open acreage policy: Blocks would be allocated under the ‘open acreage policy’, wherein companies can submit bids for areas of their choice.under open acreage policy companies can choose blocks from the designated area round the year without waiting for roadshows and auctions like in NELP.
3. Revenue Sharing model: production-sharing contract between government and contractors would henceforth be governed by a revenue-sharing model instead of a profit-sharing one
4. It provides for a common license for all hydrocarbons, including shale gas and coal bed methane, and does away with computing complex investment multiples and scrutinizing cost recoveries
5. It also provides marketing and pricing freedom for the crude oil and natural gas produced.
6. On the lines of NELP, cess and import duty will not be applicable on blocks awarded under the new policy.

Benefits of HELP

1. Will promote ease of doing business: In the NELP, contractors gold-plated their costs to artificially depress profits. This not only led to disputes and litigation but also caused project delays as government pored over each decision by the contractor to check for possible fraud. Such problems are less likely to occur under revenue-sharing. Under the new regime, the Government will not be concerned with the cost incurred and will receive a share of the gross revenue from the sale of oil, gas etc. This is in tune with Government’s policy of “Ease of Doing Business”.
2. Will allow producers to charge a competitive market price : One of the reasons why domestic oil and gas exploration has suffered over the years despite the fact that India has a huge import dependence as over three-fourths of the domestic crude oil demand and about a third of the domestic demand for gas are met by imports — is the inability of companies to price the output in a profitable manner. Now, instead of pricing being determined by a formula set by a committee, Help will allow producers to charge a competitive market price for new production, subject to a ceiling determined by the landed price of alternative fuels, such as fuel oil, liquefied natural gas and naphtha. It would boost investment in the sector.
3. Help’ will also allow energy companies to produce whatever form of hydrocarbon is available from a licensed block—coal bed methane, shale gas/oil, tight gas and gas hydrates—without seeking separate permission for producing each of the fuels.
4. Promote investment: Under the new regime, there will not be yearly auction of a cluster of identified blocks. Instead, investors can access data about all the blocks available and would be encouraged to bid at any time of their choice under the open acreage principle.
5. Recognising the higher risks and costs involved in exploration and production from offshore areas, lower royalty rates for such areas have been provided as compared to NELP royalty rates to encourage exploration and production.  A graded system of royalty rates have been introduced, in which royalty rates decreases from shallow water to deepwater and ultra-deep water.
6. Increase Transparency: It would increase transparency and would reduce government intervention in the sector since government would not face the burden of scrutinizing the cost of the firms involved in the sector. This is in tune with the government motto of minimum government maximum governance/

Concerns Raised

1. The costs involved in exploration is very high and it is also marked by uncertainty. The shift to revenue-sharing could prove to be a disincentive as the investment recovery period for producers gets prolonged since he has to share the revenue with the government from day 1.
2. Blocks already under production aren’t covered
3. Banks may not give credit easily to such projects given their high gestation periods and the rising NPAs
4. Since royalty rates over land is uniform, regions like NE may be ignored by companies
5. If the gas prices are set too high, sectors like power, fertilizers etc. may be affected

HELP VS NELP

Conclusion

1. Overall, the policy is a step in the right direction. It will not only bring transparency in the energy sector but would also attract much needed investment in the sector; It should be tweaked in the future to ensure better implementation. If followed in its letter and spirit, the policy can help India achieve energy security in the long run.

Source:

http://www.arthapedia.in/index.php?title=Hydrocarbon_Exploration_and_Licensing_Policy_(HELP)

http://pib.nic.in/newsite/PrintRelease.aspx?relid=137638

Questions:

Q.1) Examine how would the new Hydrocarbon Exploration Licensing Policy (Help) affect interests of consumers and producers.

Q.2) The new Hydrocarbon Exploration Licensing Policy, or HELP, is said to signal one of the most important market-oriented sectoral reforms of the past two decades. Examine why.

Note4Students

Supreme Court of India in subramnanian swamy case upheld the validity of the criminal defamation law. The court pronounced its verdict on a batch of petitions challenging the constitutional validity of sections 499 and 500 of the Indian Penal Code providing for criminal defamation.This issue has been lingering about from last 2-3 years.A number of op-eds on this issue have been published in Hindu and IE in last few years.

Introduction

What is Defamation?

1. Defamation refers to the act of publication of defamatory content that lowers the reputation of an individual or an entity when observed through the perspective of an ordinary man. Defamation in India is both a civil and a criminal offence.

Sections 499 and 500:

Sections 499 and 500 in the IPC deal with criminal defamation. While the former defines the offence of defamation, the latter defines the punishment for it.

• 1. Section 499: Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.
  2. Section 500: Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

Analysis

Why it should be retained?

1. Reputation of an individual, constituent in Article 21 is an equally important right as free speech
2. It has interpreted art 21 to provide for right to reputation and brought a new concept of constitutional fraternity – that is, an assurance of mutual respect and concern for each other’s dignity.
3. The Supreme Court declared that the right to free speech under Article 19(1)(a) had to be “balanced” against the right to “reputation” under Article 21.
4. It has been part of statutory law for over 70 years. It has neither diluted our vibrant democracy nor abridged free speech
5. Protection for “legitimate criticism” on a question of public interest is available in the Civil law of defamation & Under exceptions of Section 499 IPC
6. Mere misuse or abuse of law can never be a reason to render a provision unconstitutional rather lower judiciary must be sensitized to prevent misuse
7. Monetary compensation in civil defamation is not proportional to the excessive harm done to the reputation
8. Editors have to take the responsibility of everything they publish as it has far-reaching consequences in an individual and country’s life
9. Since there is no mechanism to censor the Internet from within, online defamation could only be adequately countered by retaining defamation as a criminal offence.
10. Also, criminalisation of defamation is part of the state’s “compelling interest” to protect the right to dignity and good reputation of its citizens.
11. Unlike in the U. S, defamation in India cannot be treated only as civil liability as there is always a possibility of the defamer being judgment free, i.e., not having the adequate financial capability to compensate the victim.

Why it should be deleted?

1. These restrictions have a chilling effect on freedom of speech; they create an anomaly whereby the threshold for criminal prosecution for defamation is now possibly lower than the threshold for civil damages;
2. “Constitutional fraternity” is not a part of Article 19(2) of the Constitution, which specifically limits the circumstances under which the state can restrict speech to eight enumerated categories.
3. It is also nowhere in the fundamental rights chapter of the Constitution, so the question of “balancing” free speech against constitutional fraternity does not arise.
4. Article 21 which is a shield to protect the individual against State persecution or indifference, is used as a sword to cut down the fundamental right to freedom of speech and expression because of this provision.
5. Freedom of speech and expression of media is important for a vibrant democracy and the threat of prosecution alone is enough to suppress the truth. Many times the influential people misuse this provision to suppress any voices against them.
6. Considering anecdotal evidence, every dissent may be taken as unpalatable criticism. Sections 499 and 500 of IPC prescribes two years’ imprisonment for a person found guilty of defamation.
7. The right to reputation cannot be extended to collectives such as the government, which has the resources to set right damage to their reputations.
8. The process in the criminal cases itself becomes a punishment for the accused as it requires him to be personally present along with a lawyer on each date of hearing.

Given that a civil remedy to defamation already exists, no purpose is served by retaining the criminal remedy except to coerce, harass and threaten.

It goes against the global trend of decriminalizing defamation

1. Many countries, including neighbouring Sri Lanka, have decriminalized defamation.
2. The United Kingdom abolished criminal defamation altogether
3. More recently, the Constitutional Court of Zimbabwe struck it down as an unconstitutional restriction upon the freedom of speech.
4. In 2011, the Human Rights Committee of the International Covenant on Civil and Political Rights called upon states to abolish criminal defamation, noting that it intimidates citizens and makes them shy away from exposing wrongdoing
5. Investigative journalism can be curtailed and ombudsman would be threatened.
6. The dozens of defamation cases filed in Tamil Nadu to silence journalists show that criminal defamation can fetter democratic accountability.

Conclusion

1. While the right to reputation may be protected by the Constitution, it should not be at the cost of freedom of speech.
2. Free speech is necessary because, it enables the media to hold governments and individuals accountable. Freedom of speech should also protect the right to offend within reasonable limits.
3. If the ability to legitimately criticize is not protected, voices throwing light on important issues will continue to be silenced by the rich and powerful

Questions

Do you think there a need for reform of India’s defamation laws? Critically comment

“Supreme Court’s judgment on criminal defamation is the latest illustration of a syndrome” Critically comment

“The Supreme Court verdict upholding the provisions of the Indian Penal Code that make defamation a criminal offence is retrograde and out of tune with the times”. Discuss

 

Note4Students:

There lies a very thin line between the judicial overreach and judicial activism. Considering the recent pronouncements of SC, this topic has become important for mains.

Context

1. Some time back, it was commented that  judiciary must draw its own ‘Lakshman rekha (inviolable boundary)’ and not take decisions that fall in the domain of executive, highlighting the increasing friction between the judiciary and executive over a perceived overreach by the courts.

What is judicial activism and judicial overreach?

1. Judicial Review” is the process by which a court reviews the constitutionality of a statue or the application of a statute, and rules either for it or against it on that basis.
2. “Judicial Activism” is the view that courts make political rather than legal decisions to further some agenda, rather than strictly reviewing the legality of a law under the letter of the law and prior precedent. It refers to the process in which judiciary steps into the shoes of legislature and comes up with new rules and regulations, which the legislature ought to have done earlier.
3. Judicial Overreach refers to an extreme form of judicial activism where arbitrary, unreasonable and frequent interventions are made by judiciary into the legislature’s domain, often with the intention of disrupting the balance of powers between executive, legislature and judiciary.

What is the need of judicial activism?

Failure of other organs to discharge their duties:

1. When the other political branches of the government viz. the legislature and the executive fail to discharge their respective functions, it leads to an erosion of the confidence of the citizens in the constitutional values and democracy. In such a scenario, the judiciary steps into the areas usually earmarked for the legislature and executive.

Taking proactive steps by the judiciary:

1. In case the fundamental rights of the people are trampled by the government or any other third party, the judges may take upon themselves the task of aiding the ameliorating conditions of the citizens cited as judicial activism.

To fill the vacuum created by other organs of government:

1. To fill the legislative vacuum and to meet the societal needs, the courts often indulge in judicial legislation thereby encroaching in the domain of legislature.

What does constitution say about judicial activism?

1. The Indian judiciary has been constitutionally vested with the power of review to keep the Executive and Legislature within constitutional boundaries. The Judiciary can strike down any law that is beyond Parliament’s legislative competence or is violative of the Constitution. Similarly, it can strike down any Executive action, if there is any patent illegality or arbitrariness to it.
2. While Articles 13, 21, 32, 226 and 227 encompass this power, Article 142 extends a unique, extraordinary power to our Supreme Court to do ‘complete justice’ in any matter before it.

Criticism of this idea:

Disturbs the balance between organs of government:

1. According to some critics, judicial overreach is upsetting the constitutional balance among the three organs of state – the legislature, the executive and the judiciary.

Viewed as a challenge to basic structure:

The judicial activism, at one point of time, was considered necessary to correct the failings of the legislature and the misdeeds of the executive. But it has now grown into a situation where the idea of separation of powers, which should be considered a feature of the basic structure of the Constitution, is challenged.

Judiciary must perform its judicial functions:

1. Activism can deteriorate into overreach if the judiciary considers itself the sole custodian of public interest, interprets public interest in its own fashion and seeks to force the legislature and the executive to implement its version of it. Judiciary has only got to interpret the laws and decide whether they conform to the Constitution and not more than that.

Understanding thin line between activism and overreach:

1. There is a thin line between activism and overreach. While judicial activism is considered positive to supplement the fallings of the executive, but the overreach into the executive’s domain is considered an intrusion into the proper functioning of democracy.
2. Just as independence of the judiciary is part of basic structure, the primacy of the legislature in policy making is also part of basic structure and interference by the courts into their domain is not justified.

Way Forward

1. Although,  judicial review is legitimate domain of judiciary but then a limit or boundary has to be drawn. Judiciary, like all institutions in a democracy, should be accountable and know its own limits. It should not become a super parliament that frames laws and a super executive that seeks to implement them.
2. The quality and speed of the mainstream judicial system can be improved by a comprehensive and integrative approach, focussed on improving judicial infrastructure and reducing indiscipline. Following points define the way in which judicial activism can prove constructive:
3.  Improving judicial infrastructure
4.  Develop discipline in the judicial system
5.  Improve strength of judges
6. Develop judicial competence, effective case management and use of information technology
7. Review media role.

Question:

(Q) This is not the first time when questions have been raised on the judicial overreach and activism in India. Is judicial activism when executive is not able to efficiently perform its duties justified? Give arguments.

(Q) Judicial activism and judicial overreach are separated by very thin line, and the judiciary has to be careful of it. If that line is crossed, judicial activism may be  considered an encroachment on legislature? Discuss.

Sources

http://www.thehindu.com/todays-paper/tp-opinion/Judicial-activism-romanticism-amp-overreach/article15177963.ece

http://www.thehindu.com/opinion/lead/Disturbing-trends-in-judicial-activism/article12680891.ece

http://indianexpress.com/article/opinion/columns/arun-jaitley-judicial-activism-supreme-court-2828018/

http://www.livemint.com/Opinion/lPqfldPjTc9t4aBYupFZKK/The-judiciary-is-shifting-the-balance-of-power.html

http://www.livemint.com/Opinion/hB3zoJOiAEKkUd6YUxw0rM/Judicial-boundaries.html

Note4Students

Article 35A triggers the discussion of special privileges of Kashmir. Kashmir had been stirred with terrorism and other unrest.  Another political controversy will drag the region into unrest again. It is important to find a solution. This article looks into various aspects of article 35A. In last, few years UPSC has asked a number of Questions on controversial constitutional articles and SC judgements, for example in 2013 UPSC asked a Question on Article 371 A and last year it asked a question on Article 239AA . Thus a question can be expected from this topic in Mains 2017.

Introduction

What is it?

1. Article 35A is a provision incorporated in the Constitution giving the Jammu and Kashmir Legislature the authority to decide who all are ‘permanent residents’ of the State and confer on them special rights and privileges in public sector jobs, acquisition of property in the State, scholarships and other public aid and welfare
2. The provision mandates that no act of the legislature coming under it can be challenged for violating the Constitution or any other law of the land.

Implications

1. Article 370 grants special status to J&K, while Article 35A, added to the Indian Constitution through a presidential order, empowers the J&K legislature to define the state’s “permanent residents” and their special rights and privileges.
2. Article 35A was incorporated into the Constitution in 1954 by an order of the then President Rajendra Prasad on the advice of the Jawaharlal Nehru Cabinet. The controversial Constitution (Application to Jammu and Kashmir) Order of 1954 followed the 1952 Delhi Agreement entered into between Nehru and the then Prime Minister of Jammu and Kashmir Sheikh Abdullah, which extended Indian citizenship to the ‘State subjects’ of Jammu and Kashmir.
3. So Article 35A was added to the Constitution as a testimony of the special consideration the Indian government accorded to the ‘permanent residents’ of Jammu and Kashmir.

Recent Developments

1. The threat of abrogation of Article 35A is leading to unprecedented political developments in the Valley. For instance, it is the first time in recent past that all major political parties in Kashmir, including the ruling People’s Democratic Party and the opposition National Conference, independent MLAs and even the Hurriyat have come together on an issue.
2. Attorney General KK Venugopal telling Supreme Court, during a hearing on 35A, that the Centre was in favour of a ‘larger debate’ sent alarm bells ringing through the Valley
3. Recently, a Kashmiri woman called Charu Wali Khan, settled outside the state, challenged the legality of Article 35A of the Indian Constitution that allows J&K to define its “permanent residents”. She claimed in her petition to the Supreme Court that such a law takes her succession rights away and disenfranchises her.
4. In 2014, NGO approached the Supreme Court challenging Article 35A on the grounds that it was illegally added to the Constitution as it was never floated before Parliament.

ANALYSIS

WHAT’S THE CHALLENGE TO IT?

1. Article 14 of the Constitution gives a fundamental right to equality before law. But 35A is heavily loaded in favour of males because even after marriage to women from outside, they will not lose the right of being permanent residents
2. Outsider vs insider: while a woman from outside the state shall became a permanent resident on marrying a male permanent resident of the state, a daughter who is born state subject will lose her permanent resident status on marrying an outsider.
3. 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).
4. Children of non-state subjects do not get admission to state colleges.
5. 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.
6. 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.
7. At this juncture, it may be important to recall a landmark judgment delivered on October 2002, by the Jammu and Kashmir High Court, which held that women married to non-permanent residents, will not lose their rights, though children of such women will not enjoy succession rights.

Why does it matter?

1. The parliamentary route of lawmaking was bypassed when the President incorporated Article 35A into the Constitution.
2. Article 368 (i) of the Constitution empowers only Parliament to amend the Constitution. So did the President act outside his jurisdiction? Is Article 35A void because the Nehru government did not place it before Parliament for discussion? A five-judge Bench of the Supreme Court in its March 1961 judgment in Puranlal Lakhanpal vs. The President of India discusses the President’s powers under Article 370 to ‘modify’ the Constitution. Though the court observes that the President may modify an existing provision in the Constitution under Article 370, the judgment is silent as to whether the President can, without the Parliament’s knowledge, introduce a new Article. This question remains open.
3. A writ petition filed by NGO We the Citizens challenges the validity of both Article 35A and Article 370.
4. It argues that four representatives from Kashmir were part of the Constituent Assembly involved in the drafting of the Constitution and the State of Jammu and Kashmir was never accorded any special status in the Constitution.
5. Article 370 was only a ‘temporary provision’ to help bring normality in Jammu and Kashmir and strengthen democracy in that State, it contends. The Constitution-makers did not intend Article 370 to be a tool to bring permanent amendments, like Article 35A, in the Constitution.
6. The petition said Article 35 A is against the “very spirit of oneness of India” as it creates a “class within a class of Indian citizens”. Restricting citizens from other States from getting employment or buying property within Jammu and Kashmir is a violation of fundamental rights under Articles 14, 19 and 21 of the Constitution.

Issues Involved

1. The major political parties of the Kashmir Valley, NC and PDP have remained in support to the preservation and safeguarding of Article 370 and Article 35A.
2. In defense of Article 35-A, the Jammu and Kashmir state Government in November 2015, prepared a report which read, “though Article 368 has been applied to State of Jammu and Kashmir, that would not curtail power of President under Article 370 to amend any provision of Constitution of India in its application to Jammu and Kashmir”.
3. The constitutional validity of Article 35A is, therefore, well established as 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. Thus this provision is in the nature of a proviso to the 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.
4. The ruling party believes that the special status, certain rights and privileges are enjoyed only by the residents of the state which has given rise to alienation and separatist identity to the people of Jammu and Kashmir.
5. Scrapping the Article 35A is seen as an assault on the special status of the Jammu and Kashmir by the state government.
6. Article 35A cannot be challenged on the ground that they affect the fundamental rights of the other Indian Citizens.
7. The rights of the state legislature are not unlimited and can be given only in the case of – Employment, Property, Settlement and Scholarship.
8. Former chief minister Omar Abdullah also stated that this would create a bigger agitation as was witnessed in 2008 over the transfer of land to the Amarnath Shrine Board.
9. Any alteration to Article 35A may leave the government at the Centre with a hot mess in its hands, damaging the vestiges of goodwill that ordinary Kashmiris may still have towards the Union of India.
10. Any attempt to undermine, or dilute, these principles, already enshrined in the Constitution and wrenched after many decades of violence and bloodshed, can only serve to perpetuate the current cycle of unrest. In any case, it won’t act as a deterrent to terrorism in the valley.

Conclusion

Kashmir has been on the boil since last July, after Hizbul Mujahideen leader Burhan Wani was killed by the Indian Army. Since then, hundreds of ordinary people have been injured or killed in clashes with the armed forces and regular Internet shutdown has crippled normal life in the state. Taking a hasty step to deal with Article 35A under such dire circumstances, out of purely jingoistic or ideological concerns, may prove to be the last straw in the Centre’s relationship with the state.

Question

Article 35A undermines the unity of our nation. Critically analyse

What is article 35A. what are the issues involved in it??

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With that objectivity in hand and UPSC’s changing patterns in mind, we sat together to write down Explainers on some 100+ probable topics for this years’ IAS Mains.

Each explainer has an N4S and a parting question for you to attempt and review. All the blue links that you see here are LIVE hyperlinks where you can go and study. Rest will be up in no time.

Note: A PDF compilation of these 100+ issues is available to the subscribers of our MegaCombo99 subscription. (Click2buy). The PDF is available in the dropboDropboxr/ google drive along with the monthly magazines and prelims daily compilations.

 

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Economy

1. Advance in date of budget (pros and cons)
2. A-Z of GST
3. All about the Bankruptcy code 
4. All about the NPA problem in India
5. All about Cashless Economy
6. Merger of Banks: Need & Challenges
7. MPC an evaluation 
8. Hydrocarbon exploration licensing policy
9. Port Led Development growth (Focus on Sagarmala)
10. UDAN scheme : Opportunities and Challenges
11. Should PDS system be replaced by DBT
12. Demonetization (An analysis)
13. Labour reforms in recent years
14. Banking reforms in recent years
15. Recent PPP models (EPC, HAM ) an analysis
16. Do India require High speed rail
17. Air India disinvestment: Need & Challenges
18. Abolition of FIPB
19. Twin balance sheet problem
20. Proposed wage code bill: Significance & issues
21. Concept of PARA : Need & Challenges
22. Should Agriculture be taxed
23. Should India adopt Universal Basic income Model
    

Polity and Governance

1. Right to privacy Debate
2. Should no detention policy be Scrapped
3. Proxy voting for NRI
4. HEERA To Replace UGC, AICTE As A Single Higher Education Regulator
5. Should Lateral entry be allowed in civil services
6. Swatch bharat mission (performance appraisal) 
7. Skill India (performance appraisal) 
8. Setting up of common water disputes settlement tribunal
9. Should Criminal defamation law be amended
10. Should section 124 be amended
11. Judicial activism and Judicial overreach 
12. VVPAT debate
13. Curb on VIP Culture 
14. Should there be simultaneous elections for Lok Sabha and Rajya Sabha 
15. Should  Liquor be banned on highways 
16. Should national anthem be Made mandatory in cinema halls 
17. Enemy protection ordinance: issues and analysis 
18. Proposal for National court of appeal
19. Do India require All India Judicial Services
20. Issue of Paid news
21. Article 35 A debate
22. Should First past the post system be replaced with Proportional Representation system

Social Issues

1. Should Section 498 be amended
2. Child labour amendment bill 
3. Surrogacy Bill 
4. HIV Aids bill
5. Mental Health Care Bill 
6. Transgender bill 
7. Demand for smaller states (in context of Gorkhaland issue)
8. Maternity benefit amendment bill
9. New Health policy 
10. Why Dominant castes are asking for reservation 
11. Prevention of Cruelty to Animals (Regulation of Livestock Markets) Rules, 2017
12. Proposed medical termination of pregnancy amendment bill 
13. Should Marital rape be criminalized
14. National strategic plan for Malaria

International Relations

1. Qatar crisis and impact on India
2. India Israel relations
3. effect of US president Trump on India 
4. Should India fight for membership of NSG 
5. Doklam plateau issue
6. BBIN agreement  
7. BIMSTEC as counter to SAARC 
8. Rohingaya Issue 
9. Indo-Myanmar Relations 
10. India-Japan Nuclear Deal : Significance & Challenges
11. Model Bilateral Investment Treaty
    

Science and tech

1. Li-Fi
2. CRISPR
3. Reusable Launch vehicle
4. ISRO soft power
5. Cloud seeding
6. IPR policy 2016
7. GM Mustard debate
8. Indian Neutrino observatory controversy
9. Artificial intelligence
10. Big data
11. Internet of things
12. Block Chain Technology and Bitcoins
13.  Gravitational Waves
14. Hyperloop
15. Agri Research (role of ICAR)
16. DNA profiling bill
17. Hybrid electric vehicle
18. Pressurized Heavy water Reactor

Security

1. Why India should have an evacuation plan for Overseas workers 
2. Do we require a security policy 
3. Naxalism Problem faced by India 
4. Cyber security threats Faced by India 
5. Fake news menace 
   

Environment 

1. Should Culling of animals be allowed
2. Kigali agreement: Prospects and Issues
3. Should we Adopt Polluters pay model
4. A Direct Shift from BS-1V to BS-VI by 2020: Issues & Challenges
   
5. Declaring river as living entity
   
6. Compensatory Afforestation Fund Bill: Significance & Challenges
   
7.  E-waste management Rules 2016
   
8.  Plastic waste management Rules, 2016
9. Solid waste management rules, 2016
10.  Interlinking of rivers: Significance & Challenges