THE CONTEXT: On June 30th, 2021, Chief Justice N.V. Ramana delivered the 17th Justice P.D. Desai Memorial Lecture on the “Rule of Law”. According to CJI, regular participation in polls was not a guarantee against the tyranny of the elected. In his speech, he underscored the pressure of social media on institutions. Identifying Covid-19 as “an unprecedented crisis”, CJI urged the governments to evaluate how they used the rule of law or failed to ensure protection to, and, the welfare of all of our people. This article provides insights into the lecture on the Rule of Law vs. the Rule by Law.

IMPORTANT EXCERPTS OF THE LECTURE

JOURNEY FROM RULE BY LAW TO RULE OF LAW	 Our struggle for independence marked our journey towards the establishment of a state defined by the “Rule of Law”.  There was a need to give a guarantee for the laws to be framed with a human face for the benefit of the masses. A framework was needed to ensure this. The framework that forms the binding link between law and justice in this country is what “We the people” gave to ourselves in the form of the Constitution.
CONSTITUTION AND RULE OF LAW	 The framers envisaged the Constitution which not only took care of the prevailing conditions but would also continue and be relevant for all times to come. Therefore Constitution is conceived as a living document whose contents evolve over the years, as the Courts deal with new situations and question and interpret the Constitution in the light of the same.  The Constitution embodies within itself the concept of Rule of Law and the same can be witnessed from our Preamble, the Fundamental Rights, the Directive Principles of State Policy, the Separation of Powers, etc.  By situating the concept of Rule of Law at the confluence of three important values – human dignity, democracy, and justice, our founding fathers showed the path for the rest of the world too.
ADVICE TO JUDICIARY	 For the judiciary to apply checks on governmental power and action, it has to have complete freedom. The judiciary cannot be controlled, directly or indirectly, by the legislature or the executive, or else the Rule of Law would become illusory.  Judges should not be swayed by the emotional pitch of public opinion, which is getting amplified through social media platforms. Judges have to be mindful of the fact that the noise thus amplified is not necessarily reflective of what is right and what the majority believes in.  Social media is incapable of distinguishing between right and wrong, good and bad, and the real and fake. Therefore, media trials cannot be a guiding factor in deciding cases. It is therefore extremely vital to function independently and withstand all external aids and pressures.  The ultimate responsibility of a judge is to uphold the Constitution and the laws. Reason, reasonableness, and protection of human dignity are the values that will serve us well.
THE ROLE OF LAWYERS	 The “Rule of Law” demands expertise, experience, and commitment. Lawyers should perform their duties with integrity and diligence. We need social virtue rather than economically self-interested behavior.  Historically, lawyers have a rich tradition of social activism demonstrated by the number of lawyers who participated in the Indian freedom struggle.  We need now to rebuild and recreate a tradition of civic professionalism. We need a professional ideology about social responsibility.  Both young and senior counsels should extend a helping hand to those in need of justice. Extending ease of access to justice is no less a social justice.
THE ROLE OF SOCIETY	 To advance the “Rule of Law” we primarily need to create a society where “Rule of Law” is respected and cherished.  Only when the citizens believe that they have fair and equal access to justice, can we have sustainable, just, inclusive, and peaceful societies.  Citizens can strengthen the “Rule of Law” by being knowledgeable about it and by applying it to their daily conduct and pushing for justice when needed.

4 CORE PRINCIPLES OF RULE OF LAW

PRINCIPLE	DETAILS	ANALYSIS/PRESENT STATUS
‘LAWS MUST BE CLEAR AND ACCESSIBLE’	- When laws are expected to be obeyed, the people at least ought to know what the laws are. - Law should be worded in simple, unambiguous language.	- In India, we are constantly striving to make legislations and judgments accessible to the general public by translating them into various Indian languages.
“EQUALITY BEFORE THE LAW”	- An important aspect of “equality before the law” is having equal “access to justice”. - Access to justice forms the bedrock of the “Rule of Law”.	- This guarantee of equal justice will be rendered meaningless if the vulnerable sections are unable to enjoy their rights because of their poverty or illiteracy or any other kind of weakness. - There is a need for legal empowerment of women. It not only enables them to advocate for their rights and needs in society but also increases their visibility in the legal reform process.
“RIGHT TO PARTICIPATE IN THE CREATION AND REFINEMENT OF LAWS”	- The very essence of a democracy is that its citizenry has a role to play, whether directly or indirectly, in the laws that govern them.	- In the seventeen national general elections held so far, the people have changed the ruling party or combination of parties eight times, which accounts for nearly 50 percent of the number of general elections. - Despite large-scale inequalities, illiteracy, backwardness, poverty, and alleged ignorance, the people of independent India have proved themselves to be intelligent and up to the task. The masses have performed their duties reasonably well.
“STRONG INDEPENDENT JUDICIARY”	- The judiciary is the primary organ that is tasked with ensuring that the laws which are enacted are in line with the Constitution. Judicial review is one of the main functions of the judiciary.	- The Supreme Court has held this function to be a part of the basic structure of the Constitution, which means that the Parliament cannot curtail the same. - But the responsibility of safeguarding constitutionalism lies not just on the Courts. All the three organs of the State, i.e., the executive, legislature, and the judiciary, are equal repositories of Constitutional trust. - The role of the judiciary and scope of judicial action is limited, as it only pertains to facts placed before it. This limitation calls for other organs to assume responsibilities of upholding Constitutional values and ensuring justice in the first place, with the judiciary acting as an important check.

 THE RULE OF LAW BY DICEY

• A detailed analysis of the concept of Rule of Law was done by Professor A.V. Dicey who in his book “Introduction to the Study of the Law of the Constitution” published in the year 1885 tried developing the concept of Rule of Law.
• Dicey’s theory of Rule of Law consists of three basic principles:

1. The supremacy of law
2. Equality before law
3. The predominance of Legal Spirit

DIFFERENCE BETWEEN RULE OF LAW AND RULE BY LAW

	RULE OF LAW	RULE BY LAW
DEFINITION	- The term "rule of law" comes from the French phrase "la Principe de legality," which translates to "government based on legal principles." It is based on the Latin phrase "Lex is Rex," which translates to "Law is King."	- It is based on the Latin term 'Rex is Lex' which means 'King is Law'.
ORIGIN	- The Rule of Law was first originated by Sir Edward Coke, the Chief Justice in England at the time of King James I. Coke was the first person to criticize the maxims of Divine Concept. He strongly believed that the King should also be under the Rule of Law. - According to him, "Rule of Law" means the absence of arbitrary power on the part of the Government.	- In his battle against the Church and common law judges, King James I of England triumphed, twisting the phrase 'Lex is Rex' to 'Rex is Lex.'
THE CONCEPT	- The state should act as per the "Rule of Law" which is the foundation of any constitution.	- The state acts as per what it this as lawful rather than what the "Rule of Law" says like invoking section 144 without its necessity.

 RULE OF LAW AND INDIAN CONSTITUTION

• In India, the concept of Rule of Law can be traced back to Upanishads. Its traces can also be found in the epics like Mahabharata and Ramayana, Ten Commandments, Dharma Chakra, and other seminal documents.
• The Preamble to the Indian Constitution mentions Justice, Liberty, and Equality.
• As per Article 13, 14 and 21 of the Indian Constitution promote equality although there are exceptions as well.
• Some Exceptions:
• Articles 15 and 16, Article 105 and Article 194.
• Criminal immunity to President and Governor as mentioned in Article 361.
• Diplomatic Immunity as per the Vienna Convention.

JUDICIAL PRONOUNCEMENTS ON RULE OF LAW

• The judicial decisions have played an indispensable role to counter any arbitrariness on part of the state.
• In K. Kraipak V. Union of Indiathe Apex Court held that ours being a welfare State, it is regulated and controlled by the Rule of Law.
• In Maneka Gandhi v. Union of India,the court ensured that the exercise of power in an arbitrary manner by the government would not infringe the rights of the people.
• The Apex Court in Indira Nehru Gandhi Vs. Raj Narain (1975) held that the Rule of Law embodied in Article 14 of the Constitution is the “basic feature” of the Indian Constitution and hence it cannot be destroyed even by an amendment of the Constitution under Article 368 of the Constitution.
• In L Chandra Kumar v Union of India, the court declared the independence of the judiciary to be a part of the basic structure and further the court struck down the amendment to article 323A of the constitution.
• The Habeas Corpus Case (1976) held that article 21 is the sole repository of Rule of law in India.

ANALYSIS: PRESENT STATUS OF RULE OF LAW IN INDIA

• In India, the Rule of Law is not followed in stricto sensu (“In the strict sense.”). There are several instances:

1. Several guidelines have been laid down by the court to curb the practice of honor killing but still, there have been numerous instances of honor killing reported. The decision on honor killing is taken by an extra-constitutional bodyby the nomenclature of Khap Panchayat which engages in feudalistic activities has no compunction to commit such crimes which are offenses under the Indian Penal Code, 1860. No heed is paid to the basic human right of “Right to life and liberty”.
2. The Sabarimala case verdict throws light upon the discretion of men in abiding by the directions given by the Supreme Court only to the point if they are analogous to the belief they hold. After the verdict massive protests were carried out, there were also occurrences of violence against women who tried to enter the temple. The women were denied their constitutional right to worship and the principles of equality were violated even after the practice was declared unconstitutional by the Apex Court.
3. Another evil practice pertinent in society is that of mob lynching. Supreme Court described it as horrendous acts of mobocracy and stated that “the law is the mightiest sovereign in a civilized society”.

In fact, the present debate has started due to increase in the incidences of RULE BY LAW like:

1. Internet shutdown in J&K for over one year
2. Arbitrary application of laws against media and journalists
3. Arbitrary application of UAPA, sedition law and NSA against protesters, dissenters, activists, etc.
4. Gagging criticisms on the mishandling of covid second wave

Such developments give a feeling of an authoritarian state and not of a democratic state. The CJI in his lecture has also highlighted how the people have largely plaid their role through 17 general elections and have rejected the governments if they have failed to withstand the rule of law. No government is permanent. Hence, it is the duty cast upon the three organs to play their role in upholding the rule of law.

THE CONCLUSION: The work of ensuring complete justice can never be said to be completed. The mandate of our Constitution is to work tirelessly to surpass our expectations, to make India a country wherein rights are cherished, and which sets an example for other countries to follow.

“Desamamte Matti Kadoi, Desamamte ManushulOi” (“A nation is not merely a territory. A nation is essentially its people. Only when its people progress, the Nation progresses”)

                                                                                                                                  ———– Maha Kavi Gurajada Appa Rao

Questions to Ponder

1. Differentiate between the Rule of law and Rule by law. Discuss the role of the judges and lawyers in ensuring Rule of law.
2. “The responsibility of safeguarding constitutionalism lies not just on the Courts.” Analyze.
3. Discuss why electoral democracy is prone to tyranny of those who are elected and what should be the safeguards?
4. Social media is incapable of distinguishing between right and wrong, good and bad, and the real and fake. Comment.

THE CONTEXT: In July 2021, Government of India announced creation of a new ministry, the Ministry of Cooperation, which is headed by the Union Home Minister. The aim of the Ministry is to implement the vision of ‘Sahkar se Samriddhi’ or prosperity through cooperation to give a new push to the cooperative movement in India. This article analyses about the topic comprehensively as follows.

WHAT WILL BE THE NEW MINISTRY’S OBJECTIVES?

• The Ministry will provide a separate administrative legal and policy framework for strengthening the cooperative movement in the country.
• It will help deepen co-operatives as a true people-based movement reaching upto the grassroots.
• In our country, a co-operative based economic development model is very relevant where each member works with a spirit of responsibility.
• The Ministry will work to streamline processes for ‘Ease of doing businesses for co-operatives and enable development of Multi-State Co-operatives (MSCS).

WHAT IS A COOPERATIVE SOCIETY?

• According to the Cooperative Societies Act, 1912, at least 10 adult members are needed to form a Cooperative Society solely based on mutual aid and self-help principles. The members should work for a common benefit with a motive to help each other.
• Cooperatives are enterprises which are owned, controlled and run by its members to realize their common economic, social, and cultural needs and aspirations.
• Cooperative societies function for a common benefit with a motive to help its members.
• These societies in have played a significant role in strengthening the rural economy.
• Cooperative societies in India expanded from agricultural market to the credit sector, and later to large scale sectors, housing, fisheries, banking, etc. This led to the formation of different types of cooperative societies in India.

WHAT IS THE HISTORY OF THE COOPERATIVE MOVEMENT IN INDIA?

PRE-INDEPENDENCE ERA

• In response to the agrarian distress and overall indebtedness, the first cooperative society legislation came into existence with the Cooperative Credit Societies Act, 1904. The next landmark Act came in 1919 under the Montague-Chelmsford Reforms, under which cooperation was made a provincial subject. It allowed the provinces to come up with their own legislation for governing cooperatives.
• Later, in 1942, the British government announced the Multi-Unit Cooperative Societies Act to cover cooperative societies whose membership extended beyond one province.

POST-INDEPENDENCE ERA

• In 1958, the National Development Council (NDC) had recommended a national policy on cooperatives and for training personnel and setting up cooperative marketing societies.
• In 1984, Parliament enacted the multi-state cooperative societies Act to remove the plethora of laws governing the same types of societies.
• In 2002, the then NDA government, under the leadership of Atal Bihari Vajpayee, announced a National Policy on Cooperatives to support the promotion and development of cooperatives. It is also aimed at reducing regional imbalances and strengthening cooperative education, training and human resource development.

WHAT ARE THE LAWS GOVERNING THE SOCIETIES AND WHICH GOVERNMENT BODIES OVERSEE THE SECTOR?

1. Cooperation comes under the state list of the under the schedule seven of Indian Constitution; which mean states can make rules to govern them.
2. The 97th Constitutional Amendment, which was passed in 2011, categorically dealt with issues related to the effective management of co-operative societies. It added a new provision in the Constitution under Article 19(1)(c) to provide protection to cooperatives.
3. Article 43B of Part IV states that it is the duty of the State to promote self-reliance, democratic management, voluntary training and professional management of cooperatives in order to improve the economic activity of India.
4. In 2002, the Centre passed a Multi-State Cooperative Societies Act that allowed for registration of societies with operations in more than one state. These are mostly banks, dairies and sugar mills. The Central Registrar of Societies is their controlling authority, but on the ground the State Registrar takes actions on his behalf.
5. The National Cooperative Development Corporation (NCDC) works for the promotion of the cooperative movement in India. It is tasked with planning, promoting, coordinating and financing cooperative development programs at the national level. Also, it provides financial, insurance and technical support to cooperative institutions of farmers and other weaker sections.
6. Most cooperative societies are governed by the laws in the respective states, with a Registrar of Societies and a Cooperation Commissioner as their governing office.

TYPES OF COOPERATIVE SOCIETIES IN INDIA

Based on the members and the kind of business, Cooperative societies in India are classified mainly as 6 types.

1. Farming Cooperative Society: The agriculture sector in India is the largest sector, the country’s farmers need to gain profit for their produce. Unfortunately, this sector is economically weaker because of many causes, some of them being indebtedness of farmers, expensive equipment, agents or middlemen, etc.
   The farmers put in the capital for consolidating farming equipment, seeds, fertilizers, etc.They earn more via cooperative farming as compared to individual farming as the profit is divided according to their land shares.
2. Credit Cooperative Society: The cooperatives which provide financial services to its members like deposits, short term loans, etc. All those who deposit in these societies are their members. These societies raise finance with deposits from its members and provide them with short term loans on a low rate of interest.
3. Producer Cooperative Society: These societies play an essential role in the development of medium and small enterprises in India. These cooperatives are for producers like owners of fisheries, farmers, handicraft and local artisans, and many more such businesses. The best example is one of the largest cooperative in India, AMUL dairy.
4. Consumer Cooperative Society: These cooperatives are formed by consumers. For obtaining household goods at an affordable price, the consumers for such cooperatives buy the goods in bulk to reduce the cost and sell them to its members (and non-members also) at lower prices. For example, Apna bazaar is a consumer cooperative in India.
5. Marketing Cooperative Society: Just like farming cooperatives support farmers for pre-farming requirements, marketing cooperatives support them for marketing or selling their produce. These cooperatives help farmers to sell their produce profitably. Fruits, vegetables, cotton, and sugarcane cooperatives are the largest and most demanded marketing cooperatives.
6. Housing Cooperative Society: Housing is a big issue for the common man in cities and towns with skyrocketing prices of land. In such a situation, people form cooperatives to buy the land, construct houses, and sell them to the members. To become a part of the cooperative, a member either has to buy a house or buy shares in the cooperative.

Characteristics of Cooperative Societies:
1. Voluntary Formation and Participation
2. One vote per member
3. Independent body
4. Mutual benefit
5. No financial risks

Objective: The principal aim of cooperative societies is to help people tide through financial situations and gather support and assistance from nearby communities. This strengthens community relationships.
Distribution of Profits: The surplus produce or profits generated in the cooperative sector is distributed amongst its members rightfully according to their shares.
Professional Management: All cooperatives are supposed to be managed awfully and professionally. Audits must be performed periodically. The regulation is under a central Registrar.

EXAMPLES OF COOPERATIVE SOCIETIES AND HOW THEY FUNCTION

AMUL

• Amul is a leading example of an Indian dairy cooperative society. It is managed by the Gujarat Co-operative Milk Marketing Federation Ltd and is jointly owned by around 36 million milk producers.
• The produce is pooled and distributed by the cooperative itself, thereby, eliminating the need for a middle-man.

Jal Shakti Mission

• While the Jal Shakti Mission may not necessarily fall under the co-operative society definition, however, the mission does follow similar principles.
• Under Jal Shakti Abhiyan, the government is training the community as well as working with them together towards water conservation in water-stressed areas. Men and women of the community are being trained to maintain the systems.

Others

• Some other prominent examples of cooperative societies are Kendriya Bhandar and Sahkari Bhandar, which buy goods directly from producers/ manufacturers, thus removing middlemen and delivering the produce at lower costs to the end-consumers, thereby protecting the interests of both the producers and the customers.
• Cooperative societies are not restricted to agriculture alone. In banking and finance, cooperative institutions are spread across rural and urban areas as credit societies.
• As per NABARD’s 2019-20 report, there are 95,238 primary agricultural credit societies (PACSs), 363 district central cooperative banks (DCCBs) and 33 state cooperative banks in India.
• Apart from credit societies, there are also cooperative housing societies in urban areas and cooperative marketing societies in rural areas.
• Now the union government is trying to replicate the Amul model in other sectors of the economy, especially in the agriculture and livestock sector. Dairy farmers in the country have already benefitted hugely by the cooperative movement, and if the same can be replicated in the other areas, it will help in increasing the income of the farmers.

HURDLES FACED BY CO-OPERATIVE SOCIETIES

1. Non-accountability:  The government gave too many benefits to cooperatives like reservation of items extra benefits like finance facilities so also it was also provided with other support this was a good thing to do, but then there was no further accountability which led to these cooperatives becoming more and more lethargic.
2. Vested interest of some people: A lot of times people who are in position in control of cooperatives are actually people who have joined cooperatives for personal gains.
3. Lack of coordination: Generally, what happens in cooperatives is that different cooperatives at different level don’t coordinate this makes the work of cooperatives difficult.
4. The Internal Free Rider Problem: This problem arises when:
   a) New members who provide very little capital enjoy the same benefits as long-standing or founding members.
   b) When the patronage of new members does not make the cooperative much more efficient or competitive by producing significant economies of scale.
5. Quality more than Quantity:  This is another major problem faced by different cooperatives who go in for quantity this causes a major problem because they think it’s a quick way to earn money so this basically affects the productivity.
6. No Balanced Growth: The cooperatives in northeast areas and in areas like West Bengal, Bihar, Orissa are not as well developed as the ones in Maharashtra and the ones in Gujarat.
7. Political Interference: This is the biggest problem of cooperatives as politicians use them to increase their vote bank. They also get their own favorites on the boards of such boards so they are on control these cooperatives.

NEED FOR THE NEW MINISTRY

• Till now, the cooperative structure has managed to flourish and leave its mark only in few states like Maharashtra, Gujarat, Karnataka etc. Under the new Ministry, the cooperative movement would get the required financial and legal power needed to penetrate into other states.
• Cooperative institutions get capital from the Centre, either as equity or as working capital, for which the state governments stand guarantee. This formula had seen most of the funds coming to a few states such as Maharashtra, Gujarat, Karnataka while other states failed to keep up.
• The cooperative sector has witnessed drying out of funding. Under the new Ministry, the cooperative structure would be able to get a new lease of life.

Vaidyanathan Committee submitted its report in 2005 regarding financial hurdles to the societies. The committees made following observations:

• There is need to have a broad roadmap for revival of the short-term cooperative credit structure
• Equal importance be assigned to all the components as an inter-related and integrated package to ensure synergetic impact in improving the health and viability of the short-term cooperative credit structure, through the following revival package:

1. Special financial assistance to bring the short-term cooperative credit structure to an acceptable level of health;
2. Introduce legal and institutional reforms necessary for their democratic, self-reliant and efficient functioning;
3. Qualitative improvement in personnel in all tires through capacity building.

• The committee proposed a unified national model to incorporate the old state laws into a new law. The key reforms proposed by the CAS include: a bank can grant full voting rights to all users; reducing the State government’s participation in cooperative actions to 25 per cent; and restricting the power of States to replace the board of directors.
• In her Budget speech, Finance Minister Nirmala Sitharaman had mentioned the need to strengthen cooperatives.

AN ANALYSIS OF THE MOVE

Is the creation an assault on federalism?

• PROS: After the formation of the Cooperation Ministry, many contended that the move would countermand cooperative societies, which form a part of the State List under Entry 32 of Schedule 7 of the Constitution, and will go against the basic contours of cooperative federalism.
• CONS: But it is not an assault. As many societies are beyond one state so there is need for the center intervention for effective working, regulations and management of them.
• The Centre also cited the objective as streamlining the whole process and easing the doing of business.

Is it politically motivated move?

• PROS: It is being said that most of the cooperatives (especially in Maharashtra) are under the control of the opposition parties and ruling party just want to control them. It is also being said that Cooperative sector is related to the economy. How the home minister can be the head of the Ministry?
• CONS: But the truth is that the control over the sector and its close link with power has led to lot of malpractices and corruption.
• There have been a number of episodes of corruption and mismanagement in running cooperative banks and sugar factories. The mismanagement and irregularities in the Maharashtra State Cooperative Bank – the state’s apex cooperative bank – compelled to dissolve the board of directors of the banks and appoint an administrator.
• The directors of the bank were mostly local politicians.

Is it really helpful for the cooperative societies?

• PROS: The government created a separate ministry for cooperatives when a department of cooperation already existed.
• There are many possible reasons for this. The first is the sheer size of the cooperative sector measured in monetary terms.
• According to NABARD’s Annual Report of 2019-20, state cooperative banks have deposits worth Rs 1,35,392 crore and district central cooperative banks have disbursed loans to the tune of Rs 3,00,034 crore.
• There are, thus, considerable financial resources to be controlled.
• There is the opportunity for the Union government to tap these resources to offer lucrative schemes to placate the agitating farmers in northern India, including those in western Uttar Pradesh.
• CONS: In any case, the ministry of cooperation is likely to engender greater control and not autonomy of over cooperatives.

CONCLUSION: The real effects of the Cooperation Ministry can be construed more clearly if one takes into account recent occurrences such as the farmers’ protests. In order to remove the deadlock and ensure a more comprehensive approach, the government will ensure that the farming and livestock cooperative movements in other parts of the country following the new agricultural law are successful, increasing thereby farmers’ incomes and land productivity.

Questions to Ponder

1. How far do you agree that the creation of Ministry of Cooperation is an assault on federal structure of India? Justify your view.

2. What are the challenges faced by co-operative societies in India? How the new Ministry of Cooperation will help these societies to overcome such challenges?

3. Can we consider the establishment of the ministry of cooperation as a watershed development for rural economy in India? Justify your view.

THE CONTEXT: The Centre has taken complete control of the district mineral foundation (DMF) funds, negating states’ right to sanction or approve any expenditure out of the funds accrued from mandatory contribution from mining lease holders

Analysis:

• Since their inception in 2015-16, over Rs 49,400 crore have flown into the DMF funds.
• The move is seen by many states as yet another bid by the central government to usurp the states’ fiscal powers and undermine their constitutionally defined role in governance, so might spark a political storm.
• In a notification issued on July 12, the ministry of mines said the move was necessitated as “there are instances where a part of the funds of the DMF are being transferred to the treasury/consolidated fund of the state or state level funds (by whatever name called) or Chief Minister’s Relief Fund or other funds or schemes,” thereby “defeating the very purpose” of the creation of the DMF.

WHAT IS THE ISSUE?

• The Centre’s unhappiness with the way the states use the DMF kitty or the states being the custodian of these funds came to the fore in March 2020.
• Finance minister Nirmala Sitharaman suggested, as part of the first tranche of the Atmanirbhar package, that, “We will request the state governments to utilise the funds which are available at the DMF at the district level so that medical testing, medical screening and also providing of health attention will not suffer”.
• Though she did not allege fund diversion clearly, industry and mines ministry officials were in the know of fund diversion by the states.
• The order said, “In fact, such transfer of funds from DMF to state level agency defeats the very purpose of depositing the contribution and setting DMF at district level. Therefore, transfer of any part of the fund of DMF to any state level entity for its utilisation is violation of the provision of section 9B of the Act.”
• While the guidelines say that 60% of the DMF funds have to be utilised for ‘high priority sectors’ such as drinking water supply and education, 40% is earmarked for ‘other priority sectors’ such as physical infrastructure, energy and cowshed development.
• According to the MMDR Rules, 2015, “every holder of a mining lease or a prospecting licence-cum-mining lease shall, in addition to the royalty, pay to the DMF of the district in which mining operations are carried on, an amount at the rate of 10% of the royalty in respect of mining leases or prospecting licence cum-mining lease granted on or after January 12, 2015, and 30% of the royalty in respect of mining leases granted before January 12, 2015”.
• The DMF fund collections have been the highest in mineral-rich Odisha (Rs 13,336 crore), followed by Chhattisgarh (Rs 6,995 crore), Jharkhand (Rs 6,856 crore), Rajasthan (Rs 5,008 crore) and Madhya Pradesh (Rs 4,015 crore)

ABOUT DMF

• As per the MMDR (Amendment) Act, 2015, state governments must establish DMFs in all districts for the interest and benefits of the persons affected by mining-related operations;
• Lease holders are required to contribute to these not-for-profit foundations as a defined percentage of royalty, in addition to the royalty paid to state governments.
• While the sub-section 3 of Section 9(B) of the MMDR Act brought in through the 2015 amendment says, “The composition and functions of the DMF shall be such as may be prescribed by the state government”, an earlier amendment to the Act added a proviso to the sub-section that, “provided that the central government may give directions regarding composition and utilisation of fund by (the DMF)”.
• However, going a step ahead, the July 12 order said, “No sanction or approval of any expenditure out of the fund of the DMF shall be done at the state level by the state government or any state level agency.”
• Clearly, the idea is to deprive the states of discretion in the utilisation of DMF funds.
• The DMFs are required to use these funds for the welfare of persons and areas affected by mining-related operations, the tribal population being the principal intended beneficiaries.
• The scheme is called Pradhan Mantri Khanij Kshetra Kalyan Yojana.

THE CONTEXT: Ministry of Labour and Employment, Government of India has notified the draft rules relating to Employee’s Compensation under the Code on Social Security, 2020 on 03.06.2021 for inviting objections and suggestions, if any, from the stakeholders.

Analysis:

• Such objections and suggestions are required to be submitted within a period of 45 days from the date of notification of the draft rules.
• The Code on Social Security, 2020 amends and consolidates the laws relating to social security with the goal to extend social security to employees and workers in the organised as well as unorganised sectors.
• Chapter VII (Employee’s Compensation) of the Social Security Code, 2020 envisages, inter-alia, provisions relating to employer’s liability for compensation in case of fatal accidents, serious bodily injuries or occupational diseases.
• The draft Employee’s Compensation rules notified by the Central Government provide for the provisions relating
  • to manner of application for claim or settlement,
  • rate of interest for delayed payment of compensation,
  • venue of proceedings and transfer of matters,
  • notice and manner of transmitting money from one competent authority to another
  • and arrangements with other countries for the transfer of money paid as compensation.
• The draft rules under the Code on Social Security, 2020 relating to Employees’ Provident Fund, Employees’ State Insurance Corporation, Gratuity, Maternity Benefit, Social Security and Cess in respect of Building and Other Constructions Workers, Social Security for Unorganised Workers, Gig Workers and Platform Workers and Employment Information were notified on 13.11.2020.

CODE ON SOCIAL SECURITY: SALIENT FEATURES

• The Second National Commission on Labour (2002) suggested the amalgamation of central labour laws into broader groups such as: (i) Wages, (ii) Industrial Relations, (iii) Social Security, and (iv) Occupational Safety, Health and Working Conditions.
• The Code on Social Security 20 is enacted to amend and consolidate the laws relating to social security with the goal to extend social security to all employees and workers either in the organised or unorganised sector.
• The SS code defines various terms such as, aggregator, gig worker, platform worker, unorganised worker (home based worker and self-based workers).
• Further, the definition of the employee has been widened to include maximum number of employees and workers.
• The SS code provides the social security and protection to the workers in the unorganized sector to ensure access to health care and to provide income security, particularly in cases of old age, unemployment, sickness, invalidity, work injury, maternity or loss of a breadwinner etc.
• The Code provides right to the Central Government and State Government to frame and notify the social security schemes.
• The schemes may be funded by the combination of Central Government, State Government, aggregators, beneficiaries of the scheme, or funded from corporate social responsibility.
• The code places an obligation on the Central Government to constitute the National Social Security Board for the welfare of the unorganised worker as well as for the gig workers and platform workers and can recommend and monitor the schemes for such worker.
• The Central Government will setup and administer the social security fund for the welfare of such workers
• The code provides the compulsory registration of the every unorganised worker, gig worker and platform workers to avail the benefit of the concerned scheme framed under this code.
• The code has revised the applicability of the Employees Provident Fund Scheme (“EPF”). The EPF will apply to the establishment employing 20 or more employees
• ESI scheme will apply to establishment employing 10 or more employs.
• It is also be applicable to an establishment, which carries on such hazardous or life threatening occupation as notified by the Central Government, even a single employee is employed.
• The code covers the gig workers and platform workers under the ESI scheme

The Social Security Code (SS Code) has replaced the following enactments

• The Employee’s Compensation Act, 1923;
• The Employees’ State Insurance Act, 1948;
• The Employees’ Provident Funds and Miscellaneous Provisions Act, 1952;
• The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959;
• The Maternity Benefit Act, 1961;
• The Payment of Gratuity Act, 1972;
• The Cine-Workers Welfare Fund Act, 1981;
• The Building and Other Construction Workers’ Welfare Cess Act, 1996;
• The Unorganised Workers Social Security Act, 2008.

NOTE: THE RULE MAKING POWER OF THE EXECUTIVE/GOVERNMENT IS TERMED AS ‘DELEGATED LEGISLATION/SUB ORDINATE LEGISLATION’.  In 2014, the Central government introduced the Pre-Legislative Consultation Policy. Under this, it has been mandated that every Ministry must place draft bills in the public domain for comments/feedback for 30 days. The document put out for public consultation should also provide reasons for the need of the law, financial considerations and explanation of legal terms in simple language. The document is also required to cover the possible impact it could have on the citizens and their fundamental rights. It is only after the completion of this process that the draft is sent for approval to the Cabinet. THIS PRACTICE MAKES LAW MAKING A MORE INCLUSIVE AND PARTICIPATIVE EXERCICE. But of late, this practice has been observed more in its breach according to PRS legislative research study

THE CONTEXT: Union Education Minister Shri Ramesh Pokhriyal announced the release of the report of All India Survey on Higher Education 2019-20 on 10 June.

Analysis:

• This Report provides key performance indicators on the current status of Higher education in the country.
• In the last five years from 2015-16 to 2019-20, there has been a growth of 11.4% in the student enrolment.
• The rise in female enrolment in higher education during the period is 18.2%.
• This report is the 10th in the series of All India Survey on Higher Education (AISHE) annually released by D/o Higher Education.

Key features of All India Survey on Higher Education Report 2019-20

• Total Enrolment in Higher Education stands at 3.85 crore in 2019-20 as compared to 3.74 crore in 2018-19, registering a growth of 36 lakh (3.04 %). Total enrolment was 3.42 crore in 2014-15.
• Gross Enrolment Ratio(GER), the percentage of students belonging to the eligible age group enrolled in Higher Education, in 2019-20 is 27.1% against 26.3% in 2018-19 and 24.3% in 2014-2015.
• Gender Parity Index (GPI)in Higher Education in 2019-20 is 1.01 against 1.00 in 2018-19 indicating an improvement in the relative access to higher education for females of eligible age group compared to males.
• Pupil Teacher Ratio in Higher Education in 2019-20 is 26.
• As on 2019, the total number of universities in India stands at 1043 which was 993 in 2018-19.

MAJOR ISSUES WITH HIGHER EDUCATION IN INDIA AS PER UGC

• A severely fragmented higher educational ecosystem;
• Less emphasis on the development of cognitive skills and learning outcomes;
• A rigid separation of disciplines, with early specialisation and streaming of students into narrow areas of study;
• Limited access particularly in socio-economically disadvantaged areas, with few HEIS that teach in local languages
• Limited teacher and institutional autonomy;
• Inadequate mechanisms for merit-based career management and progression of faculty and institutional leaders;
• Lesser emphasis on research at most universities and colleges, and lack of competitive peer-reviewed research funding across disciplines;
• Suboptimal governance and leadership of HEIS;
• An ineffective regulatory system; and
• Large affiliating universities resulting in low standards of undergraduate education.

NATIONAL EDUCATION POLICY 2020 AND HIGHER EDUCATION

• Increase GER in higher education to reach at least 50%by 2035
• The policy envisages a broad-based multi-disciplinary holistic education at the undergraduate level for integrated exposure to science, arts, humanities, mathematics and professional fields having flexible curricular structures, integration of vocational education and multiple entry/exit points.
• The undergraduate degree will be of either 3 or 4-year duration, with multiple exit options within this period, with appropriate certifications-
• An Academic Bank of Credit (ABC) shall be established which would digitally 8 8 store the academic credits earned from various recognized HEIs so that the degrees from an HEI can be awarded taking into account credits earned
• Multidisciplinary Education and Research Universities(MERUs) will be set up and will aim to attain the highest standards for multidisciplinary education across India
• The system of affiliation will be phased out over 15 years and a state-wise mechanism for granting graded autonomy to colleges, through a transparent system of graded accreditation, will be established.
• National Research Foundation (NRF) will be set up to catalyze and expand research and innovation across the country.
• Internationalization of education will be facilitated through both institutional collaborations, and student and faculty mobility and allowing entry of top world ranked Universities to open campuses in our country.
• Faculty will be given the freedom to design their own curricular and pedagogical approaches within the approved framework.
• Excellence will be 10 10 further incentivized through appropriate rewards, promotions, recognitions, and movement into institutional leadership.
• Faculty not delivering on basic norms will be held accountable.
• There will be a single overarching umbrella body for promotion of higher education- the Higher Education Commission of India (HECI)
• With independent bodies for standard setting- the General Education Council; funding-Higher Education Grants Council (HEGC); accreditation- National Accreditation Council (NAC); and regulation- National Higher Education Regulatory Council (NHERC).
• Regulation will be ‘light but tight’ to ensure financial probity and public-spiritedness to eliminate conflicts of interest with transparent self-disclosure as the norm not an inspectorial regime.
• An autonomous body, the National Educational Technology Forum (NETF), will be created to provide a platform for the free exchange of ideas on the use of technology to enhance learning, assessment, planning, administration
• The Centre and the States will work together to increase the public investment in Education sector to reach 6% of GDP at the earliest
• The Central Advisory Board of Education will be strengthened to ensure coordination to bring overall focus on quality education

THE CONTEXT: On May 28, the department of personnel and training (DoPT) under Ministry of Personnel directed that West Bengal Chief Secretary AlapanBandyopadhyay report to its office at North Block in Delhi by 10 a.m. on May 31.

Analysis:

• The order came hours after West Bengal Chief Minister Mamata Banerjee allegedly skipped a review meeting on Cyclone Yaas with Prime Minister NarendraModi at Kalaikunda.
• The order read that the appointments committee of the Cabinet has approved the “placement of services” of Mr. Bandyopadhyay as per provisions of the Indian Administrative Service (cadre) Rules, 1954 with the Government of India with “immediate effect”
• The ACC is headed by the Prime Minister, and Home Minister Amit Shah is the other member.
• The 1987 batch IAS officer has never been on Central deputation and is to superannuate on May 31.
• Earlier, on the request of the State government, Centre had approved three-month extension in service to the officer, top bureaucrat in West Bengal.

WHAT IS THE RULE CITED BY DOPT?

• The DoPT order said that the ACC has approved Mr. Bandyopadhyay’s transfer to Delhi under Rule 6(I) of the IAS (cadre) Rules, 1954.
• The said rule pertains to “deputation of cadre officers”
• It says that a cadre officer may, with the concurrence of the State governments concerned and the Central government, be deputed for service under the Central government or another State government.
• It however adds, “provided that in case of any disagreement, the matter shall be decided by the Central government and the State government or State governments concerned shall give effect to the decision of the Central government.”

WHEN WERE THE RULES FRAMED?

• After the All India Services Act, 1951 came into existence, the IAS cadre rules were framed in 1954.
• The said rule on deputation giving more discretionary powers to the Centre was added in May 1969.
• Before any officer of All India Services (AIS) is called for deputation to the Centre, his or her concurrence is required.
• The Establishment Officer in DoPT invites nominations from State governments.
• Once the nomination is received, their eligibility is scrutinized by a panel and then an offer list is prepared, traditionally done with the State government on board.
• Central Ministries and offices can then choose from the list of officers on offer
• AIS officers are recruited by the Centre and they are lent to States.
• The publication of offer list on DoPT’s website was discontinued by the government in 2018 amid reports that not many State government officers were willing to come to Centre for deputation.

IS THE CURRENT ORDER ONE OF ITS KIND?

• According to VappalaBalachandran, former Special Secretary, Cabinet Secretariat, the order is not only “unprecedented” but also vindictive.
• “Legally speaking it is the Centre that holds ultimate control. But there is also a custom that an officer will not be deputed against his/ her own will.
• This order is unilateral and an awkward step, unbecoming of the Central government especially after they gave due extension.
• This officer superannuates on May 31, if he refuses to join, can the Centre exercise its right on a retired officer? Mr. Balachandran asked.
• Earlier in December 2020, the Home Ministry had attached three Indian Police Service (IPS) officers of West Bengal cadre — Rajeev Mishra, Praveen Kumar Tripathi and Bholanath Pandey — but the State government did not relieve them.
• The attachment order came after the cavalcade of BharatiyaJanta Party (BJP) President J.P Nadda was attacked in Diamond Harbour area.
• Home Ministry is the cadre controlling authority of IPS officers.

WHAT IF THE OFFICER REFUSES TO COMPLY WITH THE ORDER?

• The All India Services (Discipline and Appeal) Rules, 1969 are not clear on the punishment in such cases.
• But Rule 7 says the authority to institute proceedings and to impose penalty will be the State government while he or she was “serving in connection with the affairs of a State.”
• The case is peculiar as Mr. Badyopadhyay retires on May 31 and is not on deputation to the Central government.
• The Chief Minister can write to the Centre to reconsider its decision.

ABOUT ALL INDIA SERVICES

• The All India Services comprises the three prestigious civil services of India and they are the Indian Administrative Service (IAS); Indian Police Service (IPS); and Indian Forest Service (IFS).
• The common exceptional feature of the All India Services is that the candidates selected for these civil services are recruited by the Center (Union Government in federal polity), however, their services are allotted under various State Cadres and they have the accountability to serve both under the State and the Centre.
• Because of the federal polity of the country, this is regarded as one of the mechanisms that make the Union Government stronger than the State Governments.
• The officers of these three civil services act in accordance with the All India Services rules that includes paying, deportment, leave, several allowances and etc.

THE CONTEXT: Underlining that sexual autonomy is an essential aspect of the right to privacy, the Madras High Court  issued far-reaching guidelines aimed at mainstreaming LGBTIQA+ persons.

Analysis:

• The order was issued by Justice N Anand Venkatesh on a plea filed by a lesbian couple whose relationship was being opposed by their parents.
• The petitioners had moved the Madras High Court seeking protection against police harassment and from any threat or danger to their safety and security.
• Saying LGBTQIA+ persons are entitled to their privacy and “have a right to lead a dignified existence, which includes their choice of sexual orientation, gender identity, gender presentation, gender expression and choice of partner thereof”, the court said, “This right and the manner of its exercise are constitutionally protected under Article 21 of the Constitution.”
• With the order prohibiting “any attempts to medically cure or change the sexual orientation of LGBTIQA+ people to heterosexual or the gender identity of transgender people to cisgender”, Tamil Nadu is set to be the first state to ban ‘conversion therapy’, a widely available procedure that hospitals as well as religious institutions offer to change the sexual orientation of LGBT people.
• Issuing the order, the court said action, including withdrawal of licence to practice, should be taken against professionals involving themselves in any form or method of conversion therapy.
• The court added that government departments should implement the guidelines “in letter and spirit not for the sake of complying with a judicial fiat but to ensure that this society evolves, and the LGBTQIA+ community is not pushed out of the mainstream of the society.”
• The court said if police, while inquiring into any missing person’s complaint, finds that the case involves consenting adults belonging to the LGBTQIA+ community, they shall close the complaint without subjecting them to any harassment.
• Earlier, in April 2019, the Madras HC had banned forced sex selection surgeries on intersex infants.

GUIDELINES ISSUED BY THE COURT

• The use of Parent Teachers Association (PTA) in schools to sensitise parents on issues of the LGBTQIA+ community and gender nonconforming students;
• Necessary amendments to be made in policies to include students belonging to the community in all spheres of school and college life;
• Availability of gender-neutral restrooms;
• The option of change of name and gender on academic records for transgender persons;
• Inclusion of ‘transgender’ in addition to M and F in the gender columns of application forms, competitive entrance exams, etc;
• Appointment of counselors who are LGBTQIA+ inclusive, conducting awareness programmes for judicial officers and programmes for police and prison officials for protection from and prevention of offences against the LGBTQIA+ community.

TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019

• It defines a transgender person as one whose gender does not match the gender assigned at birth.
• It includes trans-men and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar and hijra.
• It prohibits the discrimination against a transgender person, including denial of service or unfair treatment in relation to: (i) education; (ii) employment; (iii) healthcare; (iv) access to, or enjoyment of goods, facilities, opportunities available to the public; (v) right to movement; (vi) right to reside, rent, or otherwise occupy property; (vii) opportunity to hold public or private office; and (viii) access to a government or private establishment in whose care or custody a transgender person is.
• Every transgender person shall have a right to reside and be included in his household. If the immediate family is unable to care for the transgender person, the person may be placed in a rehabilitation centre, on the orders of a competent court.
• A transgender person may make an application to the District Magistrate for a certificate of identity, indicating the gender as ‘transgender’.
• The Act states that the relevant government will take measures to ensure the full inclusion and participation of transgender persons in society.
• It must also take steps for their rescue and rehabilitation, vocational training and self-employment, create schemes that are transgender sensitive, and promote their participation in cultural activities.
• National Council for Transgender Persons will advise the central government as well as monitor the impact of policies, legislation and projects with respect to transgender persons. It will also redress the grievances of transgender persons.
• The draft of the Transgender Persons (Protection of Rights) Rules, 2020, stated that a District Magistrate would issue a transgender identity certificate and card based on an affidavit by the applicant, but without any medical examination

THE CONTEXT: Foundations of our nation cannot be shaken by a protest organised by a tribe of college students, said the Delhi High Court on June 16 as it opined that prima facie, no offence under the Unlawful Activities (Prevention) Act was made against the college students charged under UAPA with respect to Delhi Riots.

Analysis:

• Cautioning against the frivolously invocation of the “extremely grave and serious penal provisions“ under UAPA, the Court added that such an approach “would undermine the intent and purpose of the Parliament in enacting a law that is meant to address threats to the very existence of our Nation”.
• “Wanton use of serious penal provisions would only trivialise them“, the Court said.
• In the bail orders of the students, the Court discussed in detail the scope of the phrase ‘terrorist act’ under section 15 of UAPA and opined that the term cannot be used so lightly that it would “trivialise the extremely heinous offence of terrorist act”.
• The Court clarified that terrorism under UAPA ought to be understood differently from conventional, heinous crimes that fall within the Indian Penal Code.
• The Court thus opined that the intent and purport of UAPA is to deal with matters of profound impact on the ‘Defence of India’, nothing more and nothing less.

SIGNIFICANT ASPECTS OF THE JUDGMENT

• The intent and purport of the Parliament in enacting the UAPA, and more specifically in amending it in 2004 and 2008 to bring terrorist activity within its scope, was to deal with matters of profound impact on the ‘Defence of India’(List 1, Entry 1) nothing more and nothing less
• It was neither the intent nor purport of enacting UAPA that other offences of the usual and ordinary kind, however grave, egregious or heinous in their nature and extent, should also be covered by UAPA.
• Such conventional matters would have fallen within Entry 1 of List-II (State List, public order) and/or Entry 1 of List-III (Concurrent List, criminal law) of the Seventh Schedule to our Constitution.
• In order to lean in favour of constitutionality of the provisions of section 15, 17 and 18 of the UAPA, it must be taken that the Parliament acted within the realm of its legislative competence and that UAPA came to be enacted and amended in 2004 and 2008 to address issues relating to the ‘Defence of India’.
• The Court further held that there was “absolutely nothing”in the charge sheet that would show the possible commission of a ‘terrorist act’ within the meaning of section 15 UAPA; or an act of ‘raising funds’ to commit a terrorist act under section 17; or an act of ‘conspiracy’ to commit or an ‘act preparatory’ to commit, a terrorist act within the meaning of section 18 UAPA.
• “The court should not wait till the appellant’s right to a speedy trial guaranteed under Article 21 of the Constitution is fully and completely negated, before it steps in and wakes-up to such violation and it is not a desirable course of action.
• Apart from weighing in the three cardinal concerns against grant of bail pending trial i.e. evidence tampering, witness intimidation and abscondence, the Court also considered that pre-trial detention would not only lead to needless psychological and physical deprivations but also seriously hamper the under trials participation in preparation of his defence at the trial.

IMPLICATIONS OF THE JUDGMENT

• This judgment stands as a beacon of hope for people who believe in liberties, especially civil liberties of the citizens.
• It is very important in another context, because these are cases in which the UAPA is invoked where there is a presumption that bail cannot be granted unless the court comes to the conclusion that a prima facie case is made out that bail has to be granted.
• What the Delhi High Court has today basically held is that bail for an offence under UAPA can be granted even when a prima facie case (for bail) is not made out. So, the judgment stands for liberty.
• It cautions against casual invocations of UAPA for offences which can be dealt by ordinary criminal laws.
• It reaffirms the fundamental rights under Article 19 1(a), 19 1 (b) and holds that even if the exercise of these rights may be illegal, they are not terrorist acts (in this case) to be tried under UAPA.
• It reminds the Executive that in a democratic country the right to dissent is sacrosanct.
• More importantly, the verdict stems the tide of “jail not bail” rule in UAPA and brings back the maxim “Bail not Jail” jurisprudence.
• Also, it brings a rare moment of Judicial Assertion in the face of a strong executive that alleged to have impunity in punishing its critics.
• The judgment places importance of the Rights of under trials languishing in Indian jails for want of speedy trials (NCRB 2017 report, 66% of inmates are under trials and not convicted).
• The court castigated the Police for not applying its mind while adding charges under UAPA where none is made out.
• The judgment operationalizes the principle of “checks and balances/judicial review” while rejecting the claims of the State with respect to “UAPA’ offences.
• The judgment provides hope for scores of individuals incarcerated unjustifiably under the UAPA provisions to get bail if other high courts take a leaf out of the Delhi HC’s verdict

ABOUT UAPA

• The Unlawful Activities (Prevention) Act, 1967 enables more effective prevention of certain unlawful activities of individuals and associations and for dealing with terrorist activities, and other related matters.
• Till the year 2004, unlawful activities referred to actions related to secession and cession of territory.
• Following the 2004 amendment, “terrorist act” was added to the list of offences.
• The Act assigns absolute power to the central government, by way of which if the Centre deems an activity as unlawful then it may, by way of an Official Gazette, declare it so.
• Under the UAPA, the investigating agency can file a charge sheet in maximum 180 days after the arrests and the duration can be extended further after intimating the court.
• Both Indian and foreign nationals can be charged. It will be applicable to the offenders in the same manner, even if crime is committed on a foreign land, outside India.
• It has death penalty and life imprisonment as highest punishments.
• Section 13 of UAPA punishes anyone who aids, abets, advices or incites unlawful activities.
• As per Section 43D(5), bail cannot be granted to a person accused of being involved in terrorist activities if the Public Prosecutor has not been given a reasonable opportunity of being heard.
  • The proviso to the provision provides for a condition when the accused would not be released on bail.
  • It mandates that if the court is convinced, after receiving evidence from the case diary or report, that the accusations against the person are prima facie true, bail would not be granted to the accused.
  • Since the latter provision has been frequently misused by the State and misinterpreted and misapplied by the courts
  • In National Investigating Agency Zahoor Ahmad Shah Watali, 2019 the Supreme Court opined that in order to determine whether the charges are prima facie true, an elaborate examination of the evidence produced before the court does not need to be conducted.
  • The SC held that the financial records of the accused, which indicated funding from questionable foreign sources were sufficient to hold that the accusations against the accused were prima facie 
• Thus, this judgment of the SC has provided substantial leeway for the executive to keep its critics in jail and jurists opine that the Watali judgment needs to be revisited by the SC.
• In Najeeb vs. Union of India, 2021, the SC held that “Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, courts would ordinarily be obligated to enlarge them on bail.”

THE UAPA AMENDMENTS 2019

• • In August 2019, Parliament cleared the Unlawful Activities (Prevention) Amendment Bill, 2019 to designate individuals as terrorists if the individual commits or participates in acts of terrorism, prepares for terrorism, promotes terrorism or is otherwise involved in terrorism.
  • The Act empowers the Director General of National Investigation Agency (NIA)to grant approval of seizure or attachment of property when the case is investigated by the said agency.
  • The Act also empowers the officers of the NIA, of the rank of Inspector or above, to investigate cases of terrorism in addition to those conducted by the DSP or ACP or above rank officer in the state.

  “What a Constitution does is to give the people a government and to protect the same people from the same government”

This article expounds on the most important instrument the constitution provides to protect the people from the government: The Rights of Citizens and Communities. The Rights whether fundamental or otherwise are the cornerstones of individual liberty and dignity .More specifically; the Fundamental Rights under Part III of our constitution limits the powers of the legislature and the executive. They enable a “government of laws and not by men/women”. Thus these rights are bulwarks of constitutional government.

There is an emerging trend of emphasizing upon the Duties of citizens to the exclusion of their rights. The attempt to create a narrative of making these rights contingent upon the citizens performing their duties is based on a false premise. Because, the rights and duties are not two sides of the same coin and they are not situated in the same continuum. The citizens’ rights are not conditional on fulfilling the duties but are standalone. It means that whether the citizens carry out the duties or not, the rights would be available to them. Otherwise, citizens would be rendered a subject people like those of non democratic countries of Middle East, China, North Korea, Myanmar, etc.

 There is also a demand being raised for balancing the Fundamental Rights and Fundamental Duties. Though the need for doing one’s duties towards society and polity must be stressed, the attempt to make Rights and Duties (Both Fundamental) correlative is highly problematic. A few important arguments in this regard are summarized below.

1. Conflating duties of citizens with Fundamental duties (FD) are illogical because these are not the same. Duties can be legal, moral etc.

2. The origin of the FDs does not give much confidence about the intention of the government. The product of an Emergency Era, these provisions were conceived in sin

.

3. The constitution makers wanted the Fundamental Rights (FR) to act as the   bulwark of citizens’ liberty and to protect it from being encroached upon by government. Thus Part III was enacted and because of their wisdom and commitment to freedom, these rights were not made conditional. That means enjoyment of these entitlements is not contingent upon citizen performing their duties whether fundamental or otherwise.

4. Rights are claims against the State ( A political entity having sovereignty over a territory and governs the people within it through the machinery of government). State and government are not the source of the Rights. In general, rights are pre- State and in India also they are not post –State. Rather they are post-constitution. It means the FRs are not handouts of the State. The constitution is the source of rights not the State. Thus the State cannot and should not apply the Hobbesian or Hegelian logic and demand duties as pre conditions for exercising the Rights.

5. When Gandhi philosophized about the duties,   he surely would not have had the concept of FDs in mind.  His notion of duties is not fundamental that they are to be enforced by the State through coercion. His idea of Oceanic Circle is rooted in the concept of autonomy, self governance and self control and here he categorically rejects any unnecessary restriction on individual freedom. So to use Gandhi to further the notion of FDs and make it conditional for Rights enjoyment is a disservice to His original thinking.

6. Regarding the Judicial zeal towards enforced patriotism, one fails to understand how the apex court came to the conclusion that Indians are less patriotic( Recall the Supreme Court direction on the National Anthem) . The assumption that citizens should be taught patriotism. and patriotism should also be displayed presupposes a flawed understanding of Rights and Duties.   Justice Cardoso has warned judges not to be knight errands running around with a whip to enforce their own moral world view. Apart from clear impracticality of implementation of such an ivory tower order, it also gave rise to vigilantism and police excesses on innocents.  It’s highly demeaning and indignifying for us to be told by a Judge that we do not love our nation. The modification of the judgment reflects the sheer falsity of the order in the first place. Patriotism is a feeling of love towards ones nation and its people and not a displaying commodity.

7. Hardly any functioning democracy in the world has the concept of FDs in their Constitution nor do they demand Citizens to conform to them for Rights enjoyment. True, totalitarian and dictatorship regimes do have them as these FDs can be used to hide their failure across all fronts and also as sledge hammers to curb dissent and critical voices.

8. The very fact that these FDs are not enforceable by themselves shows they are not meant to be restrictions on citizens. The FDs are placed as appendage to Part IV not to Part III. This also emphasizes the high pedestal on which the Fundamental Rights are placed in the constitution.

9. Even if we concede the importance of duties, the pertinent question would be what lies at the core of duties of citizen in a Constitutional Democracy? Democratic government is an accountable government. Public Accountability is the summum bonum of Indian polity. So the ” FD’ of the citizen should be relentless questioning of the powers that be. Eternal vigilance is the price of liberty. Thus citizens must seek answers from those exercising popular sovereignty and also from their attendant institutions.

10. Even those running the government are citizens of this country. So the political executives and bureaucracy must also carry out the various duties including constitutional, legal, moral and other conventional duties.  Unfortunately, their actions or inactions do not inspire much confidence. It’s highly idealistic to expect when the fish starts rotting from the head, the tail will remain immune and fresh.

11. Finally, the ideals of Dharma have been integral to Indian ways of life from time immemorial. The Artha shastra explains the duties of the king towards the people and kingdom. Buddhist philosophies cast upon duties on individuals to find their own salvation. Duties towards family and community and the ideal of Karma have been expounded in Gita. Thus Indians have always been conscious of their duties even though these were not “Fundamental” or the government wanted them to be fulfilled by the people.

To conclude, Rights of citizens in a constitutional democracy should have precedence over Duties. This is a must for realizing the goal of rule of law, equality, freedom and justice. Simultaneously, we must be conscious of our duties arising out of different roles we perform. We carry out these duties and are also committed to them so are most of our country men and women. These duties are products of socialization, socio economic back grounds, education, political awareness, feeling of fraternity, role modeling, political culture etc.  It is the ” opportunity and capacity to enjoy ones Fundamental Rights that make us capable and willing to be duty abiding and not vice versa.