Explained: What NHRC, SC have said on encounter killings

Headline : Explained: What NHRC, SC have said on encounter killings

Details :

In News:

  • All four accused in the rape-and-murder of a 25-year-old woman veterinarian in Hyderabad were recently killed in an encounter by the police.
  • While several voices, including senior officials and public figures, have hailed the killing, questions have also been raised over the legality and propriety of the police action.
  • Extra-judicial or “encounter” killings have been a contested and divisive police procedure for decades.

 

NHRC chairman in 1997 raised concern over extradjudicial killings or ‘encounters’:

  • In 1997, Justice M N Venkatachaliah, then chairperson of the National Human Rights Commission (NHRC) wrote to all Chief Ministers after receiving complaints about ‘fake’ encounters by the police.
  • The complaints highlighted that the instances of fake encounters by the police were on the increase and that police kill persons instead of subjecting them to due process of law, if offences are alleged against them.
  • Justice Venkatachaliah, who was Chief Justice of India in 1993-94, underlined that “under the laws the police have not been conferred any right to take away the life of another person”. And if, by his act, the policeman kills a person, he commits the offence of culpable homicide unless it is proved that such killing was not an offence under the law.
  • When extrajudicial cases are not an offence:
  • The only two circumstances in which such killing would not constitute an offence are
    • If death is caused in the exercise of the right of private defence.
    • Section 46 of the CrPC authorises the police to use force, even to the extent of causing death, in order to arrest the person accused of an offence punishable with death or imprisonment for life.

 

NHRC guidelines in cases of ‘encounters’:

  • In the light of this, the NHRC asked all states and Union Territories to ensure that police follow a set of guidelines in cases where death is caused in police encounters.
  • When the in-charge of a police station receives information about the deaths in an encounter between the police party and others, that information should be registered in the appropriate register.
  • Information as received shall be regarded as sufficient to suspect the commission of a cognizable offence.
  • And immediate steps should be taken to investigate the facts and circumstances leading to the death to ascertain what offence was committed and by whom.
  • As the police officers belonging to the same Police Station are the members of the encounter party, it is appropriate that the cases should be investigated by some other independent investigation agency, such as the CID.
  • Question of granting of compensation to the dependents of the deceased may be considered in cases ending in conviction, if police officers are prosecuted on the basis of the results of the investigation.

Expansion of the guidelines by NHRC:

  • In 2010 NHRC noted that most of the States are not following the recommendations issuedby it in the true spirit. Thereafter, the NHRC expanded the guidelines, adding several new procedures, including:
    • Whenever a specific complaint is made against the police alleging commission of a criminal act, which makes out a cognisable case of culpable homicide, an FIR must be registeredunder appropriate sections of the IPC.
    • magisterial enquiry must be held in all cases of death which occurs in the course of police action, as expeditiously as possible, preferably within three months.
    • All cases of deaths in police action in the states shall be reported to the Commission by the Senior Superintendent of Police/Superintendent of Police of the District within 48 hours of such death in a given format.
    • second report must be sent in all cases to the Commission within three months including the post mortem report, inquest report, findings of the magisterial enquiry/enquiry by senior officers.

 

Directives by the Supreme Court

  • In ‘People’s Union for Civil Liberties & Anr vs State of Maharashtra and Ors’ case, the bench issued a detailed 16-point procedure in 2014 as the standard procedure for thorough, effective and independent investigation.
  • Whenever the police receive any intelligence regarding criminal movements or activities pertaining to the commission of grave criminal offence, it shall be put into writing in some form preferably into case diary or in some electronic form.
  • If based on the intelligence received an encounter takes place and death occurs, an FIR must be registered and forwarded to the court under Section 157 of the Code without any delay.

Inquiry:

  • An independent investigation into the incident/encounter shall be conducted by the CID or police team of another police station under the supervision of a senior officer (at least a level above the head of the police party engaged in the encounter).
  • Magisterial inquiry under Section 176 of the Code must be held in all cases of death which occur in the course of police firing and a report must be sent to Judicial Magistrate having jurisdiction under Section 190 of the Code.

Involvement of NHRC:

  • The involvement of NHRC is not necessary unless there is serious doubt about independent and impartial investigation.
  • However, the information of the incident without any delay must be sent to NHRC or the State Human Rights Commission, as the case may be.
  • The court directed that these “requirements/norms must be strictly observed in all cases of death and grievous injury in police encounters by treating them as law declared under Article 141 of the Constitution of India”.
Section : Polity & Governance

Explained: Jammu and Kashmir state to two UTs — today, later

Headline : Explained: Jammu and Kashmir state to two UTs — today, later

Details :

In News

  • The state of Jammu and Kashmir will be officially bifurcated into the Union Territories of J&K and Ladakh on October 31. The day will mark the beginning of the functioning of the two UTs at a bureaucratic level.
  • This marks an important milestone in the history of J&K and culminates the process that started on August 5 with the landmark announcement for emasculation of Article 370 as well as end of statehood for J&K
  • The period between August 5 and October 31 has been used by the state administration and the Home Ministry to put a basic bureaucratic structure in place to implement the Jammu and Kashmir Reorganisation Act.
  • This is the first time that a state is being bifurcated into two UTs. In the past, there have been instances of a UT becoming a full state or a state being reorganised into two states.

 

Slow process of Reorganization

  • As of now, the state administration has implemented all that is mentioned in the Reorganisation Act as it is.
  • For full-fledged bifurcation of States, the Reorganisation Act gives a period of one year. But, reorganisation of states is a slow process that at times can take years.
  • Issues relating to reorganisation of erstwhile Andhra Pradesh, which was bifurcated into Andhra and Telangana in 2013, are still being brought to the Union Home Ministry for resolution.

 

Implication of the official bifurcation

  • Post the official bifurcation the Centre will be in direct control of police and law & order in J&K from 31st October.
  • It also puts an end to J&K’s flag and constitution, symbols of the state’s special status.
  • The Lieutenant Governors of the two UTs will take oath of office along with the Chief Justice of the Jammu and Kashmir High Court.
  • On the ground, the two UTs will get their own Chief Secretaries and other top bureaucrats, their own police chiefs and key supervisory officers.

 

Impact on laws that governed the state of Jammu & Kashmir

  • Legislative restructuring is a work in progress, with a lot remaining to be done. While 153 state laws are to be repealed, 166 have been retained.
  • The exercise of repealing Acts that mention “applicable to all of India but not the state of Jammu and Kashmir” will also have to be undertaken.
  • Further, there is a massive legislative exercise of making state-specific insertions into the 108 central laws that would now be applicable to the two Union Territories.

 

Impact on staff

  • While the bureaucratic structures are in place, the staff of the state administration are yet to be divided.
  • As of now, the Home Ministry has issued an interim order to maintain the station of all staff in the lower bureaucracy as it is.
  • This is to ensure that the two UTs keep on functioning without any hiccups beginning October 31. However, a subsequent reorganisation of staff will take place in due course.

 

Filling the political void

  • It is early days, but the Centre hopes to slowly fill the political void created following the arrest of almost all notable politicians and prominent workers of mainstream parties in the Valley.
  • A new political alternative being catalyzed by the Centre is starting to take shape in Kashmir.
  • Several young aspiring politicians are ready to look beyond the abrogation of Article 370, and willing to start afresh a dialogue with the people and engage with the Centre.
  • The government is also banking on the emergence of a new crop of political leaders from panchayats and municipal bodies.

 

EU MPs in J&K

  • European Union parliamentarians visiting Kashmir termed the dilution of Article 370 an internal issue of India and said they stand by the country in its fight against terrorism.
  • The 23-member delegation also condemned the killing of five labourers from West Bengal by militants in Kulgam district.
  • They also acknowledged that terrorism is a severe problem in Kashmir and named Pakistan as its source.

 

 

Section : Editorial Analysis

Who are the 19 lakh excluded from Assam NRC, and what next for them?

Headline : Who are the 19 lakh excluded from Assam NRC, and what next for them?

Details :

In News:

  • The recently published final list of people in updated National Register of Citizen (NRC) has stripped nearly 19 lakh people in the north-eastern state of Assam of their citizenship.

About: NRC

  • The NRC for a state is the list of Indian citizens of that state.
  • It was created in 1951 to determine who was born in Assam and is therefore Indian, and who might be a migrant from neighbouring Bangladesh.
  • It is a list of people who can prove that they came to Assam before 24 March 1971, a day before India’s neighbouring country Bangladesh declared independence from Pakistan.
  • Objective: to control unabated migration from Bangladesh.
  • The Register is meant to establish the credentials of a bona fide citizen as distinguished from a foreigner.
  • Assam is the country’s only state to create such a document.
  • The NRC has been updated for the first time.

Background of the NRC updation:

  • The NRC updating exercise started in 2013 under the Supreme court’s watch.
  • The process of NRC update in Assam differs from the rest of the country and is governed by Rule 4A and the corresponding Schedule of the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003.
  • These rules were framed as per the cut-off date of the midnight of March 24, 1971, enshrined in the Assam Accord of 1985.
  • First draft of Assam NRC:
    • In accordance with the top court’s direction, the Registrar-General of India published the list on the night of 31-December-2017 to distinguish Indian citizens living in Assam from those who illegally entered the State.
    • Names of 1.9 crore people out of the 3.29 crore applicants were incorporated then.
  • Second draft:
    • In July 2018, a draft was published in which 2.89 crore residents were included as Indian citizens, while 40 lakh were left out.
    • Those who were left out were allowed to file claims for inclusion and citizens could object against anyone who they felt was wrongly included.
  • Excluded in additional list:
    • In June 2019, another 1 lakh, originally among the 2.89 crore included in that draft, were removed after subsequent verification.
  • Claims filed against exclusions:
    • As many as 36 lakh of those excluded filed claims against the exclusion, while four lakh residents did not apply.
  • Final NRC:
    • The latest NRC is the result of all those included and excluded.

What will happen to those 19 lakh people excluded from the NRC?

  • The excluded people will have to appeal against it at Foreigners’ Tribunals (FT), a quasi-judicial court and subsequently in the high court or Supreme Court.
  • The government has given 120 days time to appeal in the court.
  • Those excluded from NRC will have to prove that they or their ancestors were living in Assam on or before March 24, 1971.
  • Various other documents such as birth certificates and land records are admissible, as long as these were issued before the cutoff date.
  • However, if a person looses to prove his/her identity in Foreigners’ Tribunal as well as in higher courts, he or she will face a possible arrest and can be sent to a detention centre (However, the prospects sending a large number of people to detention centres is low).
  • If not deported or detained in a camp, such people would officially be entitled as non-citizens.

Foreigners Tribunal: Foreigners Tribunal (FT) was set up in Assam in 1964 through the Foreigners Tribunal Order 1964. The tribunals have been mandated with identifying the legal status of suspected foreigners in Assam.

Key Challenge:

  • The courts , limited in numbers, will be burdened and get exhaustive as the appeal period is short and cases are far too many which may further clog the process.

What makes deportation so uncertain?

  • For a country to be able to deport a mass of individuals to another country, the second country has to accept that they were its citizens who entered the first country illegally.
  • However, Bangladesh has never officially acknowledged that any of its citizens migrated illegally to Assam.
  • Besides, India has no treaty with Bangladesh that would facilitate their deportation.
  • Also, there have been no visible recent efforts by India to push the matter with Bangladesh.

India’s Policy for “stateless” persons:

  • India has no fixed policy for “stateless” persons.
  • The only aspect which is clear is that “stateless” person will not have voting rights.
  • As of now, nothing is clear about their rights to work, housing and government healthcare and education.
  • In India, being “stateless” is not the same as being a refugee.

Refugees in India:

  • India has refugees from Tibet, Sri Lanka (Tamils) and West Pakistan.
  • Among them, only the refugees from West Pakistan has the right to vote in Lok Sabha elections but not in Assembly polls.
  • For Tibetans, the government allows Indian citizenship with a rider that they move out of Tibetan settlements and forgo refugee benefits.
  • Under the Tibetan Rehabilitation Policy, 2014, adopted in part by a few states, refugees are eligible for certain benefits under government schemes for labour, rations, housing and loans.

Road ahead: Citizenship (Amendment) Bill, 2019

  • The Citizenship (Amendment) Bill, 2019 provided for granting citizenship to immigrants of six non-Muslim faiths from three countries, including Bangladesh.
  • However, the Bill lapsed, but is expected to be reintroduced.
  • If the Bill passes Parliament, Hindus from Bangladesh would be eligible for citizenship, even if detected as illegal immigrants, while Muslims who illegally entered from Bangladesh would be treated as illegal immigrants.
  • The Bill has faced protests in Assam on the ground that it runs contrary to the NRC’s objective, which is to detect all illegal immigrants.
  • Whatever the fate of the Bill, a very long battle awaits those who are excluded from the NRC but claim to be Indian citizens.

About: Assam Accord, 1985

  • Assam witnessed a range of law and order problems and political turbulence driven by the anti-foreigners movement, in the early 1980s.
  • The Assam Accord (1985) was a Memorandum of Settlement (MoS) signed, signed by the Centre and the All Assam Students’ Union (AASU).
  • Accordingly, those foreigners who had entered Assam between 1951 and 1961 were to be given full citizenship, including the right to vote while the entrants between 1961 and 1971were to be denied voting rights for ten years but would enjoy all other rights of citizenship.
  • In addition to economic development, the Accord also had assured to safeguards the cultural, social, and linguistic identity and heritage of the Assamese people.

Section : Polity & Governance

Can Pakistan get the ICJ to undo India’s decision on J&K’s special status?

Headline : Can Pakistan get the ICJ to undo India’s decision on J&K’s special status?

Details :

In News:

  • Pakistan has decided to approach the International Court of Justice (ICJ) over the recent revocation of Jammu and Kashmir’s special status by India.

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Theme of the topic: The topic analysis the ICJ’s Jurisdiction over the Jammu and Kashmir case

About/; International Court of Justice (ICJ)

  • The International Court of Justice (ICJ) is the main judicial organ of the United Nations (UN), established in 1945, after World War II to resolve international disputes.
  • The seat of the Court is in The Hague (Netherlands).
  • Of the six principal organs of the United Nations, it is the only one not located in New York(USA).
  • The Court’s role is to settle, the cases in accordance with international law, legal disputes submitted to it by States.
  • It gives advisory opinions on legal questions referred to it, but is not a criminal court.
  • Composition: The Court is composed of 15 judges, who are elected for terms of office of nine years by the United Nations General Assembly and the Security Council.
  • Official Languages: English and French

Note: Only countries are eligible to appear before the ICJ, and  individuals, non-governmental organisations, corporations or any other private entities are not eligible .

ICJ’s jurisdiction:

  • The nature of the ICJ’s jurisdiction is twofold:
    • Jurisdiction in contentious Cases: Contentious jurisdiction involves States that submit the dispute by consent to the Court for a binding decision. It decides, in accordance with international law, disputes of a legal nature that are submitted to it by States.
    • Advisory Jurisdiction: It gives advisory opinions on legal questions at the request of the organs of the United Nations, specialized agencies or one related organization authorized to make such a request.

Basis of ICJ’s Jurisdiction:

  • The ICJ’s jurisdiction takes three forms: compulsory, special agreement, and treaty-based.
    • Compulsory Jurisdiction: Any international legal dispute involving the UN Member States that have accepted the ICJ’s compulsory jurisdiction may be submitted to the Court, provided that all the States party to the dispute before the ICJ have accepted its compulsory jurisdiction.
    • Special Agreement Jurisdiction: States may also submit a dispute to the ICJ by special agreement, accepting the ICJ’s jurisdiction only with regard to the specific dispute at issue.
    • Treaty-based Jurisdiction: States may accept the ICJ’s jurisdiction with regard to particular areas of international law when they join a treaty that specifically provides that disputes will be submitted to the ICJ for resolution, such as the Convention on the Prevention and Punishment of the Crime of Genocide.

Is the ICJ’s Jurisdiction compulsory in Jammu and Kashmir case?

  • India and Pakistan have filed compulsory declarations in 1974 and 2017, respectively.
  • Filing such a declaration means that the concerned country (which acknowledges the compulsory jurisdiction of the ICJ) has the right to move the ICJ against any other country, which also accepts the same obligation, by filing an application instituting proceedings with the ICJ.
  • However, it is not clear if the jurisdiction of the ICJ will be compulsory in the J&K case since India has repeatedly said that it is an “internal matter”.

Procedure for filing a case in the ICJ:

  • In case of a unilateral application, the applicant state (Pakistan, in this case) will have to specify the legal grounds for ICJ’s jurisdiction.
  • In addition, it will need to state the precise nature of the claim, “together with a succinct statement of the facts and grounds on which the claim is based”.
  • However, Proceedings cannot begin until the country, against whom the application has been made (India. in this case), consents to the ICJ’s jurisdiction over the matter.
  • Furthermore, to determine its jurisdiction in the early stages of the proceedings, the ICJ can request the parties concerned to “argue all questions of law and fact” and cite evidence about the issue.
  • The proceedings can be instituted by way of a special agreement as well, which is bilateral in nature and in which the application can be filed by either party.

What happens when the jurisdiction of the ICJ is disputed?

  • In case there is a dispute related to the ICJ’s jurisdiction, the matter is settled by the decision of the ICJ itself guided by provisions given under Article 36 of the statute.
  • The purpose of the statute is to “organise the composition and functioning of the court”.

Can the ICJ’s judgments be revised?

  • A judgment can be revised only if there is discovery of a fact important to the matter which was not known to the ICJ and the party claiming revision when the judgment was first delivered.
  • The party asking for a revised ruling needs to assure the ICJ that the presence of the fact wasn’t simply neglected.

Section : International Relation

Headline : Explained: Sikkim, from Chogyal rule to Indian state

Headline : Explained: Sikkim, from Chogyal rule to Indian state

Details :

In News:

  • Recently, Sikkim’s longest serving Chief Minister, Pawan Chamling, became the sole elected Opposition representative in the Assembly after the remaining 12 Sikkim Democratic Front (SDF) MLAs defected, with 10 joining the BJP and another two joining the ruling Sikkim Krantikari Morcha (SKM).

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Context of the topic:

  • The current political instability follows a unique event: the voting out of a government in power for the first time in Sikkim’s history.
  • However, since joining India in 1975, Sikkim has seen its government changed only twice and in both cases, the government had fallen before the new one was voted in.
  • The current events has been described as a departure from monarchic psychology to strengthening democracy.

Theme of the Topic: The topic gives a background on the transition of Sikkim from monarchy to full Indian statehood.

In Focus: History of Sikkim

Sikkim under Chogyal rule:

  • Sikkim was under the rule of Chogyals (or kings) of the Namgyal dynasty of Tibetan descent for 333 years before 1975.
  • The first ruler of Sikkim, Penchu Namgyal, was installed as king by Tibetan lamas in 1642.
  • At its zenith, the Sikkim kingdom included the Chumbi valley and Darjeeling. However, after 1706, there were a series of conflicts between the powers of the region, which included Sikkim, Nepal, Bhutan, and Tibet, resulting in a shrinking of Sikkim’s territorial boundaries.

Alliance with East India Company (EIC):

  • In 1814, Sikkim allied with the East India Company (EIC) in the EIC’s campaign against Nepal.
  • In reward, Company restored to Sikkim some of the territories that Nepal had wrested from it in 1780.

EIC purchased Darjeeling

  • In 1841, the Company purchased Darjeeling from the Namgyal rulers.

Treaty of Tumlong of 1861:

  • The Treaty of Tumlong effectively made Sikkim a de facto protectorate of the British India.

Anglo-Chinese Convention, 1890:

  • The Convention also known as Calcutta Convention demarcated the border between Sikkim and Tibet, and was signed by Viceroy Lord Lansdowne and Qing China’s Imperial Associate Resident in Tibet.
  • Later, the Lhasa Convention of 1904 affirmed the Calcutta Convention.

Indo-Sikkim Treaty, 1950:

  • Under the Indo-Sikkim Treaty of 1950, Sikkim was to become a protectorate of the Indian Government while maintaining its autonomy.

Formation of Sikkim State Congress:

  • The gaping income inequality and feudal control over key resources led to popular discontent against the Chogyal rulers.
  • In December 1947, diverse political groupings came together to form the Sikkim State Congress.
  • In 1949, the Chogyal agreed to appoint a five-member Council of Ministers, with three Congress nominees, and two of his own.

Introduction of a new Constitution and elections in the state:

  • In 1953, the Chogyal introduced a new Constitution, and four general elections were held based on separate electorates in 1957, 1960, 1967, and 1970.
  • However, plagued by distrust between the Chogyal and the Congress, none of these elections helped further democracy.

Break down of law and order:

  • In the early 1970s, violent protests took place in the state, demanding a more democratic constitution for Sikkim, as well as more powers for the elected representatives.
  • This led to a breakdown of law and order in the princely state.

May 8 Agreement of 1973:

  • This was an agreement entered into by the Chogyal, the Government of India and leaders of the political parties of Sikkim following complete breakdown of the law and order situation.
  • Both the demands of the agitators (i.e. “a more democratic constitution” and “greater legislative and executive powers for the elected representatives of the people”) were provided in the Agreement.
  • In addition, the Indian Government was “requested” to take “responsibility” for law and order and appoint a chief executive or head of administration in Sikkim.
  • Elections on the basis of one-man one-vote were introduced.
  • The Indian chief executive held complete administrative authority.
  • If any difference of opinion rose between him and the Chogyal, it was to be “referred to the political officer in Sikkim, who shall obtain the advise of the Government of India, which shall be binding”.

New Government in state:

  • In 1974, elections were held, in which the Congress led by Kazi Lhendup Dorji emerged victorious over pro-independence parties.

Abolition of institution of the Chogyal:

  • In 1974, a new constitution was also adopted, which restricted the role of the Chogyal to a titular post.
  • The Chogyal resented this, and refused to deliver the customary address to the elected Assembly.

Protectorate to associated State

  • Also, in 1974, India upgraded Sikkim’s status from protectorate to “associated state”, allotting to it one seat each in the Lok Sabha and Rajya Sabha.

Referendum in 1975:

  • The Chogyal was unhappy with this move, and sought to internationalise the issue. This did not go down well with Sikkim’s elected leaders, and a referendum was held in 1975.
  • A total 59,637 voted in favour of abolishing the monarchy and joining India, with only 1,496 voting against.
  • Subsequently, India’s Parliament approved an amendment to make Sikkim a full state.

Special Constitutional provisions regarding Sikkim:

  • Article 371(F) of the Constitution, provides special status to the Sikkim.

The important Special Provisions include:

  • It states that the Legislative Assembly shall consist of not less than 30 members.
  • In order to protect the rights and interests of the different sections of the population in the state of Sikkim, seats in the assembly are provided to people of these different sections.
  • The Governor shall have special responsibility for peace and equitable arrangement for ensuring the social and economic advancement of different sections of the population of Sikkim.
    • The Governor of Sikkim shall, subject to such directions as the President may, from time to time, deem fit to issue, act in his discretion
  • Neither the Supreme Court nor any other court shall have jurisdiction in respect of any dispute or other matter arising out of any treaty, agreement, engagement or other similar instrument relating to Sikkim.

Section : Polity & Governance

Polity & Governance : People’s Plan Campaign, also known as Sabki Yojana Sabka Vikas

Headline : Coming, digital push to Gram Panchayats

Details :

In News:

  • The Union government has decided to start People’s Plan Campaign, also known as Sabki Yojana Sabka Vikas in September, after consultations with the representatives of 16 key ministries.
  • Earlier, from October to December, 2018, the government conducted a similar exercise in 2.48 lakh Gram Panchayats (GPs) across the country, which showed several GPs have improved vastly on many indicators while some have slipped. Therefore, a fresh survey is significant.

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News Summary:

  • Sabki Yojana Sabka Vikas aims to draw up a development plan for each Gram Panchayat (GP) in the country and place it on a website where the development status can be viewed by anyone.
  • Gram Panchayats will be mandated for the preparation of Gram Panchayat Development Plan (GPDP) for economic development and social justice utilizing the resources available to them.

How the Gram Panchayat Development Plans will be created?

  • Each Gram Panchayat (GP) will be scored out of 100 based on an array of 48 indicators covering various aspects such as health and sanitation, education, agriculture, housing, roads, drinking water, electrification, poverty alleviation programmes, social welfare etc.
    • Out of 100 marks, 30 marks will be for infrastructure, 30 marks for human development, and 40 marks for economic activity.
  • Based on the marks scored, the GPs will be ranked and the score for each GP will reflect the local needs and priorities.
  • The ranking exercise will identify the gaps at the GP level, making an assessment of where it stands, and accordingly plan the interventions.
  • For example, for a drought-prone area, water conservation would be accorded the highest priority.
  • Within this ranking, households suffering the worst deprivations would be prioritised further.

Source of data on the indicators: The data on the 48 indicators would come from:

  • Census 2011 (for physical infrastructure),
  • Socio-Economic Caste Census 2011 (for Household-level deprivation data), and
  • Fresh survey starting September that will be carried out by local facilitators.

GPs performance in 2018:

  • A majority of the GPs scored between 41 per cent and 50 per cent on a scale of 100: This shows glaring deficiencies.
  • Merely 0.1 per cent and 0.6 per cent GPs fell in the high 91-100 and 81-90 score respectively.
  • Top Scorers:
    • Kerala
    • Tamil Nadu
    • Andhra Pradesh
  • Bottom Performers:
    • Jharkhand
    • Assam
    • Bihar
    • Madhya Pradesh

Section : Polity & Governance

Polity: Federalism- Debate, landmark cases, Types of Federalism, J&K and more

Headline : The forms of federalism in India

Details :

Why in News?

  • The Union government has withdrawn the special status conferred on Jammu and Kashmir (J&K) under Article 370 of the Constitution. It has also divided the State into two regions and declared them as Union Territories.

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The debate concerning with federalism:

Nations are described as ‘federal’ or ‘unitary’, depending on the way in which governance is organized.

  • In a unitary set-up, the Centre has plenary powers of administration and legislation, with its constituent units having little autonomy.
  • In a federal arrangement, the constituent units are identified on the basis of region or ethnicity, and conferred varying forms of autonomy or some level of administrative and legislative powers.

As the current political status of J&K — as two Union Territories — is a form of demotion from the sort of autonomy it enjoyed, it becomes an issue concerning federalism.

Is India a federal state?

Article 1 of the Constitution states, “India, that is Bharat, shall be a Union of States”. While the Constitution doesn’t mention the term “federal”, it does provide for a governance structure primarily federal in nature. It provides for separate governments at the Union and in the states. Further, it specifies and demarcates the powers, functions and jurisdictions of the two governments. Last, it details the legislative, administrative and financial relations between the Union and the states.

S.R. Bommai v. Union of India, it has been held that “Democracy and federalism are essential features of our constitution and are part of its basic structure”. With increased political decentralization, India was ripe to evolve from a “union of states” to a “federation of states”.

There exist certain provisions in the Constitution which are considered to be going against the principle of federalism.

  • For example, article 200 of the constitution in which it is said that certain bills passed by state legislatures may be reserved by the governors for the consideration of the president of India.
  • The another article which is considered to be a deviation from the principle of federalism is Articles 356, 352 and 360 which gives the power to the president to declare emergency, which can transform federal system into a unitary system.
  • There are many circumstances in which the central government has used this power to dissolve the state governments of the opposite parties and to remain in power at the centre.

A disconcerting trend has been observed since 1950. While the Union and Concurrent Lists have expanded, the State List seems to have shrunk. This has led many to question the structure of Indian federalism and to propose its remodeling.

Why India is called ‘quasi-federal’:

The Supreme Court has commented on the nature of the Indian Union in several judgments. It has noted that the essence of a ‘federation’ is the existence of the Union of the States, and the distribution of powers between them.

  • In India, on the other hand, Parliament has the power to admit new States, create new States, alter their boundaries and their names, and unite or divide the States. The concurrence of States is not needed for the formation and unmaking of States and Union Territories.
  • Several provisions of the Constitution allow the Centre to override the powers of the States. For example existence of Concurrent List in Legislature.
  • In India, the residuary powers of legislation, that is the power to make law in a field not specified in the Constitution, is vested in Parliament, whereas in the U.S., residuary powers are with the States.
  • Further, in fiscal matters, the power of the States to raise their own resources is limited, and there is a good deal of dependency on the Centre for financial assistance.

Even though the States are sovereign in their prescribed legislative field, and their executive power is co-extensive with their legislative powers, it is clear that “the powers of the States are not coordinate with the Union”. This is why the Constitution is often described as ‘quasi-federal’.

Why is it said that India has asymmetric federalism:

  • The main forms of administrative units in India are the Centre and the States. But there are other forms, too, all set up to address specific local, historical and geographical contexts.
  • Besides the Centre and the States, the country has Union Territories with a legislature and Union Territories without a legislature. Parliament has overriding powers over any law made by the Assembly in the Union Territories.
  • Just as the Centre and the States do not have matching powers in all matters, there are some differences in the way some States and other constituent units of the Indian Union relate to the Centre. This creates a notable asymmetry in the way Indian federalism works.

Special status for J&K and how it worked:

The foremost example of asymmetry among Centre-State ties was in the way J&K related to India until August 6, 2019.

  • Under Article 370, the State was allowed to have its own Constitution, its own definition of ‘permanent residents’, the right to bar outsiders from holding property, and the privilege of not having any Indian law automatically applicable to its territory.
  • Indian laws had to be specifically permitted by its Assembly before it could operate there. It was allowed to have its’ own Penal and Criminal Procedure Codes.
  • The President was empowered to notify, from time to time, the provisions of the Constitution that could be extended to the State, with or without modifications.

What does Article 371 provide?

Special status is not unique to Kashmir. However, the sort of asymmetry seen in J&K’s relationship to the Centre is not seen in other States. The ‘special provisions’ applicable to some other States are mainly in the form of empowering the Governors to discharge some special responsibilities. These States are Maharashtra, Gujarat, Manipur, Nagaland, Sikkim and Arunachal Pradesh.

  • Article 371 says the Governor of Maharashtra has a special responsibility to establish separate development boards for Vidarbha, Marathwada, and the rest of the State, while the Governor of Gujarat has a similar responsibility towards Saurashtra, Kutch and the rest of Gujarat. The responsibilities cover equitable allocation of funds for development expenditure, and providing facilities for technical education and vocational training.
  • Article 371A confers special status on Nagaland. Under this provision, no law made by Parliament in relation to Naga customary law and procedure, including civil and criminal justice matters, and ownership or transfer of land and resources will apply to Nagaland, unless the Legislative Assembly of Nagaland decides so. Further, the Governor of Nagaland has a ‘special responsibility’ regarding law and order in the State.
  • Article 371B contained a special provision for Assam under which a committee of legislators from the tribal areas was formed to look after their interest. The tribal areas later became Meghalaya State.
  • Under Article 371C, the Hill Areas of Manipur ought to have a committee of legislators. The Governor has a special responsibility to make an annual report to the President on the administration of the Hill Areas. The Centre is empowered to give directions to the State as far as these areas were concerned.
  • Article 371D is a detailed provision under which the President can pass an order to provide equitable opportunities and facilities to people belonging to different parts of Andhra Pradesh in public employment and education. In particular, the President can create local cadres in various classes of employment and allot civil posts to specified local cadres only.
  • Article 371F incorporated special provisions after the addition of Sikkim to India. One major objective was to grant protection to existing laws in Sikkim so that they are not declared unconstitutional after being brought under the Constitution of India.
  • Article 371G contains special provisions to preserve the religious and social practices of Mizos in Mizoram and their customary law and procedure and administration of criminal and civil justice, besides ownership of land.
  • Article 371H vests a special responsibility on the Governor of Arunachal Pradesh with respect to law and order. It makes clear that the Governor shall discharge this function after consulting the Council of Ministers, but exercise his individual judgment as to the action taken.

Other examples of decentralization of power:

There is another significant tier of administration under the larger framework of asymmetric federalism.

  • The Sixth Schedule to the Constitution contains provisions for the administration of tribal areas in Assam, Meghalaya, Tripura and Mizoram. These create autonomous districts and autonomous regions administered by District Councils and Regional Councils respectively. These Councils can make laws with respect to allotment, occupation and use of land, management of forests other than reserve forests and water courses. Besides they can regulate social customs, marriage and divorce and property issues.
  • In Assam, the Karbi-Anglong Autonomous Council, Dima Hasao Autonomous District Council and the Bodoland Territorial Council have been set up under the Sixth Schedule. Another six autonomous councils have been formed by Acts of the legislature.
  • Ladakh has two autonomous hill development councils (Leh and Kargil).
  • The Darjeeling Gorkha Hill Council is in West Bengal.

Recent Developments:

Typically, two opposite forces seem to operate: cooperative federalism and competitive federalism. Promoting both cooperative and competitive federalism has been an overarching theme of the government.

  • Cooperative federalism implies the Centre and states share a horizontal relationship, where they “cooperate” in the larger public interest.
  • Competitive federalism gained significance in India post the 1990s economic reforms.
  • The disbandment of the Planning Commission (PC) and its replacement by the NITI Aayog is specifically designed to promote cooperative federalism.
  • Institutional innovations such as the NITI Aayog and the GST council that now dominate Centre-state deliberations, and India today has a new framework for negotiating Centre-state relations.

Way Forward:

  • Cooperative and competitive federalism may be two sides of the same coin. Their complementarities are contingent on many affirmative steps.
  • Efforts at cooperative federalism have commenced but need to be strengthened.
  • An institutional mechanism like Inter-State Council must be reactivated where important issues are appropriately discussed with states for better policy coordination.

Section : Polity & Governance

Incisive interventions that blunt the RTI’s edge Editorial 10th Aug’19 TheHindu

Headline : Incisive interventions that blunt the RTI’s edge Editorial 10th Aug’19 TheHindu

Details :

Meaning of Democracy:

  • Democracy has to percolate beyond the bare promises of formal political equality.
  • Along with a system of popular sovereignty founded in universal adult franchise, it also assures a set of rights, among others, to a freedom of expression, life and personal liberty, and equal opportunity and status.
  • India’s Constitution provides a framework for governance by pledging to people a set of inviolable guarantees.

Need to negotiate with the State to realize the rights of democracy:

  • Realising the full value of those guarantees at times requires a negotiation with the state.
  • Lead to RTI:
    • One such negotiation resulted in the enactment in 2005 of the Right to Information Act (RTI Act).
    • The law proved transformative to India’s democracy; it revolutionised the citizen’s ability to engage with the state, and bring out uncomfortable truths about the government.

Telegram: https://t.me/UpscExpress           www.upscexpress.com

Importance of RTI Act

Information fundamental to freedom of expression:

  • Information often acts as a great leveller, and helps in taking up democratic action.
  • Therefore, for democracy to be valuable, citizens must possess a right to freely express themselves.
  • It ought to follow then that it is only when citizens have a right to know what the state is up to, where governance is transparent, can their speech have genuine meaning; only then can they constructively participate in the veritable marketplace of ideas.

Empowerment of citizens:

  • Citizens are also empowered under the RTI Act to seek and obtain any information from public authorities, barring a few exempted categories.
  • This freedom to secure information that the law provides has helped open the government up to greater scrutiny.

 

Important role of CIC and ICs in effectiveness of RTI Act:

  • It is when a plea for information goes unheeded that the CIC and the ICs play an especially vital role.
  • Should the initial request for information made to a public information office fails, the petitioner is entitled to lodge an appeal to an authority within the department concerned.
  • Should that also fail, a further appeal can be made to the office of the CIC or the State Information Commission.

 

Right to Information (Amendment) Bill, 2019

  • The government recently got the Right to Information (Amendment) Bill, 2019 passed in Parliament, to amend the RTI Act to dilute the statutorily fixed tenure and service conditions of Information Commissioners.

Term of Information Commissioners:

At Present:

  • The Chief Information Commissioner and Information Commissioners (appointed at the central and state level) have a fixed term of five years.

Proposed Amendment:

  • The amendment bill proposes to change the period of office of Chief Information Commissioner and Information Commissioner as for such term as may be prescribed by the Central Government.

Determination of salary:

At Present:

  • The Act states that the salary of the CIC and ICs (at the central level) will be equivalent to the salary paid to the Chief Election Commissioner and Election Commissioners, respectively.
  • Similarly, the salary of the CIC and ICs (at the state level) will be equivalent to the salary paid to the Election Commissioners and the Chief Secretary to the state government, respectively.

Proposed Amendment:

  • The salary, allowances, and terms and conditions of service of the CIC and the ICs will be determined by executive guidelines.

 

Reason for the amendments:

  • The government said tha thte Information Commission was a statutory body and it was an anomaly to equate it to a constitutional body like Election Commission.
  • The mandate of Election Commission of India and Central and State Information Commissions are different. Hence, their status and service conditions need to be rationalised accordingly.

 

Criticism of the amendments

It undermines the Freedom of Expression:

  • At the first look, the amendments might not strike as being especially harmful.
  • But the RTI Act is not an ordinary statute. It is a law that provides the basic right to freedom of information. Although such a right is not enumerated in the Constitution, the Supreme Court has repeatedly affirmed its position as intrinsic to the right to freedom of expression.
  • Citizens have a right to know what the state is up to, and take decisions or express themselves, and RTI enables this. If it is ineffective, freedom of expression of citizens is undermined.

ICs may come under political influence:

  • Until now, the RTI Act granted an acceptable level of independence to ICs.
  • By placing their terms of service on a par with those of the ECs the law insulated the ICs from political influence.
  • The idea is that security in office is imperative if members must intervene without fear or favour to ensure that the law’s mandate is met.

 

Conclusion:

  • The RTI Act, in its original form, was far from flawless, especially in that it did not do enough to open up public authorities to complete scrutiny. But the present amendments, far from strengthening the existing regime, subvert the independence of the information commission.
  • With the withering of that independence, the right to freedom of information also begins to lose its thrust.

 

Importance:

GS Paper II: Polity & Governance

 

Section : Editorial Analysis

J&K Statehood and 370 Article: Analysis

Headline : The state has its reasons Editorial 7th Aug’19 IndianExpress

Details :

Telegram : https://t.me/SimplifiedIAS

Status of J&K stuck in ambiguity:

  • For over seven decades, the status of the state of Jammu and Kashmir has been masked in ambiguity and deceit.
  • Successive governments of both India and Pakistan had tried but failed to arrive at an amicable “final solution” because of the play of vested interests on both sides.

Two potential routes to a resolution:

  • The resolution attempts over time shaped two potential routes to a resolution.
  • One may be termed the “hard” option and the other the “soft” option.

 

Pakistan tried the hard option of war first:

  • Pakistan tried the hard option of occupying the territory as early as in 1947 when it sent troops into the erstwhile kingdom of Jammu and Kashmir and grabbed territory.
  • It tried the hard option a second time but failed, in 1998 when it crossed the Line of Control (LoC) at Kargil.

Then it was ready for soft option:

  • It was only after these attempts at a military soluti on on the part of Pakistan failed that the two countries began considering the “soft” options.

 

Soft option of LoC as IB pursued: 

  • Prime Minister Atal Bihari Vajpayee took the first step in defining a final “soft” solution when he was open to the idea that the LoC could be defined as the “international border” (IB).
  • Later, Prime Minister Manmohan Singh pursued that option through dialogue with Pakistani President Pervez Musharraf, conducted largely through a back channel.
  • The Manmohan-Musharraf formula:
    • It was based on the premise that terrorism and cross-border attacks would cease, and the LoC would become the IB.
    • In Kashmir, it would be a soft border that would enable Kashmiris on both sides to travel to and fro.
    • It advocated free trade across the border, and “self-governance for internal management in all areas on the same basis on both sides of the LoC”.
    • Once such a benign environment was established, both sides would reduce to the bare minimum the presence of their respective militaries on their side of the border.

The soft option did not work out:

  • All those ideas did not progress.
  • Musharraf in Pakistan and then Singh in India lost the already little support to pursue this “soft” solution.
  • The Mumbai terror attack in November 2008 and other events ultimately increased pressure for the burial of the soft solution.
  • Pakistan’s military and hardline political leadership went against the soft solution.
  • In India, the changed government also rejected the Manmohan-Musharraf formula.

End of pursuit of soft solution:

  • Since 2014, there have been no takers for the soft solution both in India and Pakistan.
  • On the contrary, attitudes began to harden on both sides.
  • No credible political leader in Pakistan or India seems interested any longer in pursuing the now abandoned soft solution.

 

India’s pursuit of hard solution – End of Article 370:

  • India tried all options to resolve the Kashmir issue but nothing yielded a convincing result.
  • Having exhausted soft options, a hard solution has been opted for.
  • The Indian leadership was convinced that change needs to be brought in Kashmir and this was an opportune moment.
  • The result was the end of Art 370 in Kashmir and the change of its position to that of a Union Territory.

 

Despite criticism, securing borders as important as the minds of the people:

  • Critics of the government’s action have said it was motivated by a desire to secure land rather than its inhabitants.
  • Every state has to be as mindful of its territory as of its inhabitants.
  • More wars have been fought between nations over land than only over the interests of its peoples.
  • Even Abraham Lincoln did not wage a civil war only to define the rights of US citizens but to also define the territorial limits of the US state.
  • A state that cannot define its borders and protect them has no reason to survive.
  • Significantly, most political parties have backed the government’s action. They are not necessarily defending the government but are defending the interests of the Indian state.

Conclusion:

  • India has tried both soft and hard solutions to define its borders.
  • The only remaining unresolved issues are with Pakistan and China.
  • With China, a negotiated settlement is still possible since its leadership has demonstrated greater maturity in dealing with India.
  • Pakistan too could have secured a peaceful resolution by ceasing to make India more anxious about its security.
  • In choosing not to do so, Pakistan forced India into a hard solution.

Importance:

GS Paper II: International Relations

Section : Editorial Analysis

River water disputes: Disputes Resolution Committee (DRC), Inter State Water Dispute Act, 1956

Headline : One tribunal for all river water disputes: why the proposal, how it will work

Details :

In News:
  • The Inter-State River Water Disputes (Amendment) Bill, 2019 has been passed by Lok Sabha.
  • It seeks to streamline the adjudication of disputes relating to waters of inter-State rivers and river valleys.
News Summary:
  • The Bill cleared by Lok Sabha seeks to make amendments to the Inter-State River Waters Disputes Act of 1956, that provides for setting up of a separate tribunal every time a dispute arises.
  • Once it becomes law, the amendment will ensure the transfer of all existing water disputes to the single Inter-State River Water Disputes Tribunal with different Benches in states.
  • All five existing tribunals under the 1956 Act would cease to exist.
What changes after the amendment?
Dispute resolution system:
Earlier:
  • Under the 1956 Act, a separate tribunal was needed to be set up every time a dispute arises.
Now:
  • Once it becomes law, the amendment will ensure the transfer of all existing water disputes to the single new tribunal.
  • The current system of dispute resolution would give way to a new two-tier approach:
    • Disputes Resolution Committee (DRC):
      • Under the new system, the Centre would set up a DRC once states raise a dispute.
      • The DRC would be headed by a serving or retired secretary-rank officer with experience in the water sector and would have other expert members and a representative of each state government concerned.
      • The DRC would try to resolve the dispute through negotiations within a year (extendable by another 6 months) and submit a report to the Centre.
      • Only if the DRC fails to resolve the dispute will the matter be referred to the tribunal.
  • Bench constituted by the tribunal:
    • If the DRC fails to settle the dispute, it would be referred to the permanent tribunal.
    • The chairperson would then constitute a three-member bench that would consider the DRC report before investigating on its own.
    • It would have to finalise its decision within two years (extendable by another year).
  •  The decision of the tribunal would carry the weight of an order of the Supreme Court.
 
Time taken to settle the disputes:
Earlier:
  • Under the 1956 Act, nine tribunals have so far been set up. It has taken 17 to 27 years to resolve disputes by these tribunals.
  • Only four of them have given their awards.
  • Though the tribunal was supposed to give its award within three years (extendable by another two years), the tribunals have taken much longer to give their decisions.
    • For example, the dispute over Cauvery waters between Karnataka and Tamil Nadu took 28 years to settle.
    • The Ravi and Beas Waters Tribunal was set up in April 1986 and it is still to give the final award.
    • The minimum a tribunal has taken to settle a dispute is seven years, by the first Krishna Water Disputes Tribunal in 1976.
  • The multiplicity of tribunals has led to an increase in bureaucracy, delays, and possible duplication of work.
Now:
  • The amendment is bringing a time limit for adjudicating the disputes.
  • All disputes would now have to be resolved within a maximum of four-and-a-half years.
About: Inter State Water Dispute Act, 1956
  • The Parliament has enacted Inter-State River Water Disputes (ISRWD) Act, 1956 for adjudication of disputes relating to waters of inter-State rivers and river valley thereof.
  • Setting up of Tribunal: When any request under the said Act is received from any State Government in respect of any water dispute on the inter-State rivers and the Central Government is of the opinion that the water dispute cannot be settled by negotiations, the Central Government constitutes a Water Disputes Tribunal for the adjudication of the water dispute.
    • Note: The 2019 amendment Bill seeks to modify this to have a single permanent Tribunal with multiple benches constitutes as and when necessary to adjudicate the disputes.
  • Make recommendations to government: The Tribunal so constituted investigates the matters referred to it and forward to the Central Government a report setting out the facts as found by it and giving its decision on the mattes referred to it.
  • Sole body to adjudicate disputes: Notwithstanding anything contained in any other law, neither the Supreme Court nor any other Court shall have or exercise jurisdiction in respect of any water dispute which may be referred to a Tribunal under this Act.
  • Final and Binding: The Central Government shall publish the decision of the Tribunal in the Official Gazette and the decision shall be final and binding on the parties to the dispute and shall be given effect to by them.
    • Judicial Review: However, the Supreme Court, while hearing a civil suit in the Cauvery dispute, had said the decision of that tribunal could be challenged before it through a Special Leave Petition under Article 136 of the Constitution.
  • Implementation: The Central Government may establish any authority/body for the implementation of the decision or directions of the Tribunal.
Section : Polity & Governance