1.

Aadhaar and Privacy issues

Why in News?

Recently, Unique Identification Authority of India (UIDAI) first issued a warning to the public not to
share a photocopy of their Aadhaar with any organisation, and then withdrew the warning over
worries that it was open to “misinterpretation”.

What is the Unique Identification Authority of India?

▪ Statutory Authority: The UIDAI is a statutory authority established on 12th July 2016 by the
Government of India under the jurisdiction of the Ministry of Electronics and Information
Technology, following the provisions of the Aadhaar Act 2016.

o The UIDAI was initially set up by the Government of India in January 2009, as an
attached office under the aegis of the Planning Commission.

▪ Mandate: The UIDAI is mandated to assign a 12-digit unique identification (UID) number
(Aadhaar) to all the residents of India.

o As of 31st October 2021, UIDAI had issued 131.68 crore Aadhaar numbers.

What was the Initial Warning from UIDAI?

▪ The UIDAI warned the “general public not to share photocopy of one’s Aadhaar with any
organisation, because it can be misused”.

o Rather, it recommended using "a masked Aadhaar, which displays only the last four
digits of the Aadhaar number,".

▪ It also asked the public to avoid using public computers to download their e-Aadhaar.

o In that case, they were reminded to "permanently delete" any downloaded copies
of the same.

▪ Only those organisations that have obtained a User License from the UIDAI can use Aadhaar
to establish the identity of a person.

o Moreover, hotels and movie theatres are not allowed to collect or maintain copies of
the Aadhaar cards, due to the Aadhaar Act.

What are the Concerns related to Aadhaar?

▪ Misuse of Aadhaar Data:

o Many private entities in the country insist on an Aadhaar card, and users often
share the details.

o There’s no clarity on how these entities keep these data private and secure.

o More recently with Covid-19 testing, many would have noticed that most labs insist
on Aadhaar card data, including a photocopy.

• It should be noted that it is not mandatory to share this for getting a Covid-
19 test done.

▪ Excessive Imposition:
 o In 2018, the Supreme Court ruled that Aadhaar authentication can be made
mandatory only for benefits paid from the Consolidated Fund of India and that
alternative means of identity verification must always be provided when Aadhaar
fails.

• Children were exempt but aadhaar continues to be routinely demanded

from children for basic rights such as anganwadi services or school
enrolment.

▪ Arbitrary exclusions:

o Central and state governments have made routine use of the “ultimatum
method” to enforce the linkage of welfare benefits with Aadhaar.

o In this method, benefits are simply withdrawn or suspended if the recipients fail to
comply with the linkage instructions in good time, such as failing to link their job
card, ration card or bank account with Aadhaar.

▪ Fraud-prone Aadhaar-enabled Payment System (AePS):

o AePS is a facility that enables someone who has an Aadhaar-linked account to

withdraw money from it anywhere in India through biometric authentication with a
“business correspondent” – a kind of mini-ATM.

• There have been rampant abuses of this facility by corrupt business

correspondents.

Which Issue has Recently Arisen?

▪ The Comptroller and Auditor General (CAG) of India, has pulled up the Unique
Identification Authority of India (UIDAI) over a range of issues related to the issuance of
Aadhaar cards.

▪ In 2018, the Supreme Court had struck down Section 57 of the Aadhaar Act.

o Section 57 of the Aadhaar Act essentially allowed private entities to collect citizens’
Aadhaar details. While reading down the provision, the top court had called it
“unconstitutional”.

o Later, the Aadhaar and Other Laws (Amendment) Ordinance, 2019 was issued
which allowed banks and telecom operators to collect Aadhaar details as a proof of
identity.

What is the Significance of Aadhaar?

▪ Promoting Transparency and Good Governance: Aadhaar number is verifiable in an online,

cost-effective way.

o It is unique and robust enough to eliminate duplicates and fake identities and thus
used as a basis/primary identifier to roll out several Government welfare schemes
thereby promoting transparency and good governance.

▪ Helping Bottom of the Pyramid: Aadhaar has given identity to a large number of people
who did not have any identity earlier.
 o It has been used in a range of services and has helped in bringing financial inclusion,
broadband and telecom services, direct benefit transfers to the bank account of
citizens in a transparent manner.

▪ Neutral: Aadhaar number is devoid of any intelligence and does not profile people based on
caste, religion, income, health and geography.

o The Aadhaar number is a proof of identity, however, it does not confer any right of
citizenship or domicile in respect of an Aadhaar number holder.

▪ People-Centric Governance: Aadhaar is a strategic policy tool for social and financial
inclusion, public sector delivery reforms, managing fiscal budgets, increasing convenience
and promoting hassle-free people-centric governance.

▪ Permanent Financial Address: Aadhaar can be used as a permanent Financial Address and
facilitates financial inclusion of the underprivileged and weaker sections of the society and
is therefore a tool of distributive justice and equality.

o Thus, the Aadhaar identity platform is one of the key pillars of ‘Digital India’.

Way Forward

▪ Abide by the Supreme Court Ruling:

o The government must abide by and enforce Supreme Court directions, including (1)
restriction of mandatory Aadhaar to permissible purposes, (2) provision of an
alternative whenever Aadhaar authentication fails, (3) unconditional exemption for
children.

▪ Ensure Benefits to Needy not Withdrawn:

o Benefits should never be withdrawn or suspended without (1) advance disclosure of

the names that are likely to be deleted along with reason for proposed deletion, (2)
issuing a show cause notice to those concerned and giving them an opportunity
(with ample time) to respond or appeal, (3) ex-post disclosure of all cases of
deletion, with date and reason.

▪ Stronger Safeguards Needed:

o The National Payments Corporation of India (NPCI) must urgently put in place
stronger safeguards against the vulnerabilities of Aadhaar-enabled Payment Systems
and better grievance redressal facilities.

UPSC Civil Services Examination, Previous Year Questions (PYQs)

Q. Consider the following statements: (2018)

1. Aadhaar card can be used as a proof of citizenship or domicile.

2. Once issued, Aadhaar number cannot be deactivated or omitted by the Issuing Authority.

Which of the statements given above is/are correct?

(a) 1 only
(b) 2 only
(c) Both 1 and 2
(d) Neither 1 nor 2

Ans: (d)

Exp:

▪ The Aadhaar platform helps service providers authenticate identity of residents

electronically, in a safe and quick manner, making service delivery more cost effective and
efficient. According to the GoI and UIDAI, Aadhaar is not proof of citizenship.

▪ However, UIDAI has also published a set of contingencies when the Aadhaar issued by it is
liable for rejection. An Aadhaar with mixed or anomalous biometric information or multiple
names in a single name (like Urf or Alias) can be deactivated. Aadhaar can also get
deactivated upon non-usage of the same for three consecutive years.

2. The ban on cow slaughter/ Beef Ban

Why in News?

Recently, a cow protection law (Assam Cattle Preservation (Amendment) Act, 2021) that Assam
enforced less than a year ago has led to an acute beef crisis in Meghalaya.

It is important to note that north-eastern states such as Arunachal Pradesh, Meghalaya,

Mizoram and Nagaland do not have any such law regulating cattle slaughter

What are Key Features and Issues Associated with the Act?
 Why is Cow Slaughter Banned?

key Features key Issues

▪ The Act prohibits the slaughter of cows. ▪ The Act unduly limit the transport of cattle in
the north-eastern region of India due to
▪ It permits the slaughter of other cattle (bulls,
restrictions on transport through Assam.
bullocks and buffaloes) if the cattle is over 14
years of age or has become ▪ The Act restricts cattle transport from Assam to
permanently incapacitated due to injury or states where slaughter is not regulated.
deformity.
▪ Requirement for the accused to
▪ It also restricts intra-state and inter-state pay maintenance costs of seized cattle during
transport of cattle, and sale of beef except at trial may be onerous.
permitted locations.
▪ Restriction on places where beef can be sold
▪ The relevant authority may inspect and seize may be too broad and may, in effect, amount to
cattle and vehicles used for offences under the prohibition on sale of beef in the entire state.
Act

▪ Upon conviction, the seized cattle and vehicles

will be forfeited to the state government.

▪ The Directive Principles of State Policy (Article 48) under the Constitution provides that
the state shall endeavor to organize agriculture and animal husbandry on modern and
scientific lines, take steps to improve breeds and prohibit the slaughter of cows, calves, and
other milch and draught cattle.

▪ In pursuance of this, more than 20 states have passed laws restricting the slaughter of
cattle (cows, bulls, and bullocks) and buffaloes to various degrees.

What the Judiciary's take on this?

▪ Over time, the extent of the prohibition under these state laws has been guided by Supreme
Court judgments.

o Earlier state laws such as those in Madhya Pradesh (1949), Bihar (1955), and Uttar
Pradesh (1955) completely prohibited the slaughter of cattle.

▪ In 1958, while examining these three laws, the Supreme Court held that complete
prohibition on slaughter of cattle infringed upon the fundamental right of butchers to
practice their trade or profession.

o It held that while the complete prohibition on slaughter of cows was constitutionally
valid, the ban on slaughter of bulls, bullocks, and buffaloes can only be up to a
certain age, or be based on their usefulness (for milk, draught, or reproduction).

▪ In 1994, Gujarat passed an amended law to prohibit the slaughter of bulls and bullocks of all
ages.

▪ In 2005, a seven-judge constitutional bench of the Supreme Court upheld this

complete prohibition on slaughter of bulls and bullocks under the Gujarat amendment
law, in contrast with the earlier judgments of the Court.
 ▪ In recent years, states such as Chhattisgarh (2004), Madhya Pradesh (2004), Maharashtra
(2015), Haryana (2015), and Karnataka (2021) have also prohibited the slaughter of bulls
and bullocks of all ages.

What are Significant initiatives for Cow Protection?

▪ Rashtriya Gokul Mission

▪ Gokul Gram

▪ Pashu Sanjivni

▪ National Bovine Genomic Center

Source: TH

3. Cashless Economy

Presenting the Union Budget for 2019-20, the Finance Minister said that 2% tax deducted at source
(TDS) will be levied on cash withdrawals exceeding Rs 1 crore in a year from a bank account to
discourage the practice of making business payments in cash.

Also, the government has said that businesses with an annual turnover of over Rs 50 crore can offer
low-cost digital modes of payments and no charges on Merchant Discount Rate (MDR) will be
imposed on them or their customers.

The Reserve Bank of India and banks will absorb these costs from the savings that will accrue to
them on account of handling less cash as people move to these digital modes of payment.

Analysis of the Proposals Made in the Budget

▪ The TDS proposal is kind of a preventive measure i.e. it will not encourage one to withdraw
money from the bank account for cash payment more than a crore in the year. There is no
penal tax and its imposition implies that one’s transactions are under the scanner of the
government.

o In the year 2005, the government introduced more or less same proposal
i.e. Banking Cash Transaction Tax (BCTT). The BCTT of 0.1% was introduced for
withdrawal of cash on a single day of over Rs 25,000. The 2006 budget showed that
only 350 crores had been collected by the banks for paying government on that
account. The amount was not considered enough to continue with the
implementation of the program.

▪ The second proposal of eliminating MDR can be a bit controversial.

o This proposal will incentivise merchants to offer the option of digital payments
including UPI, credit/debit cards, RTGS, NEFT to their customers.

o It is based on the number of transactions rather than the value of transactions as in

the case of TDS proposal.

o A penalty of Rs. 5,000 a if the merchants do not offer digital modes of payments to
their customers by a particular date makes it binding to the merchants.
 ▪ The boost to digitisation should not result in losses to anyone, expecting the banks and
companies having a turnover of over Rs 50 crore to bear the cost of digitization is not fair. It
is quite possible that such companies may witness a negative impact on their transactions.

▪ There is a need to create incentives and disincentives structure by which people

automatically get encouraged to move towards more digital transactions.

Cashless Economy

▪ It is not that any economy can ever be completely cashless, cash will continue to play its role.
Even in the developed countries, the prevalence of cash is not completely being eliminated.

▪ If one reduces the use of cash, the compliance level in various things gets better. For
example, better recognition of economic activities, more efficient collection of tax etc.

▪ The GDP can get positively impacted by 0.5-0.6% due to digitization.

▪ However, using cash in small amounts has its own set of benefits. It offers security and
protects the privacy of an individual. Also, it does not have an associated cyberthreat as in
the case of digital transactions.

▪ Transition to cashless economy also has the burden of financial exclusion due to lack of
digital literacy, especially in the case of poor and elderly.

The Government’s Initiatives for Digitizing the Economy

▪ The first move taken was the demonetisation in November 2016. At the time of
demonetisation, India’s cash to GDP ratio was around 12%. After demonetisation, that ratio
came down to around 9% of the GDP. But after that, it grew at a lower pace but steadily. The
latest 2019 end figure shows that the ratio presently is around 11% of the GDP.

o The proponents of the demonetisation argue that if it had not happened, further
quick measures to encourage digital transactions like increase in the number of point
of sale machines, introduction of mobile wallets like Paytm and PhonePe had not
happened.

o There were 18 trillion rupees approximately in circulation before the

demonetisation, at the end of that fiscal it was around 13.5 million and presently, 20-
21.5 trillion, less by 4.5 around trillion.

o In the year 2013, the value of digital transactions was around 0.7 trillion, it is now 5
times i.e. 3.5 trillion. This can be the result of the 4.5 trillion rupees being less in
circulation now.

o Some see the growth of digital transactions during demonetisation as a bit of

compulsion as there was not enough cash in the economy.

▪ The National Payments Corporation of India (NPCI) created the Unified Payments Interface
(UPI) which is a payment platform in which funds can be transferred between the banks
effortlessly. It created the digital infrastructure for private players to come and offer apps
for payment services to the citizens. PhonePe, Paytms, mobiquicks are examples. The
private players also helped in popularising the digitisation in the economy.
 ▪ The government and the private sector have also started using Big Data techniques for
improving the financial services provided by them. Credit offerings are now being based on
the transaction history of the consumers.

Way Forward

▪ The number of smartphones in the country is going to increase manyfold, now it is around
30%. As the percentage increases, the number of people using digital payments would also
multiply.

o Presently, 10% of the internet users in the world are in India and per month use of
data in India is 9GB, that means that people are moving towards digitization.

o Also, India needs to have a consistent broadband network and power connection in
order to include the rural consumers. The government has already
launched Bharatnet in this direction and background infrastructure for rural area is
expanding slowly.

▪ According to the Nandan Nilekani panel, India can triple the transactions in the couple of
years. To achieve that, it has given 73 recommendations, the government can consider the
same. The recommendations include:

o All the government transactions should be done using digital payments.

o The government should facilitate payment of tolls, purchase of railway tickets,

subsidy payments to farmers through a digital medium.

o The government should create cash-in cash-out machines (CICO) instead of ATMS
which are now becoming very bulky and difficult to build and maintain. CICO
machines can operate with a sim card whereas ATMs require a broadband
connection.

▪ India’s transition to a cashless economy needs more focus on behavioral change (as observed
during demonetization). The government is moving in the right direction as supply of digital
infrastructure will eventually create demand for digitalization. This can have a multiplier
effect on the economy.

▪ Sweden and China are leading in digitization. In China, a reasonable amount of money is
transacted through ‘Wechat’. Whatsapp is trying the same in India but is suffering due
to data localisation issues. Such issues needs to be resolved soon.

The switch to digital economy should not be based on compulsions and should be left on the market
forces. Incentivizing is better than imposing financial burden on either companies or banks. Also, the
policy framing in this regard should be more inclined towards the consumer and less on the digital
companies.

India’s demographic dividend offers hope to this transition. Private sector participation and rural
inclusion should remain the focus areas while moving forward towards ‘Digital India’.
 4. Economic growth Vs Environmental conservation
Why in News

Recently, the National Highways Authority of India (NHAI) in the Karnataka High Court claimed that
the Environment Protection Act, 1986 was passed by Parliament not only for protection of
environment but also at the instance of foreign powers.

Key Points

▪ Background:

o A writ petition filed by the NGO, United Conservation Movement, against a 2013
notification of the Union Environment Ministry doing away with environment impact
assessment reports for widening national highways of over 100 km by more than
40 metres.

• The United Conservation Movement is a conglomeration of environmental

groups, and has over the last couple of years challenged NHAI projects in
the Western Ghats, a tiger reserve as well as construction activity in a
wildlife reserve.

▪ NHAI’s Claim:

o NHAI also alleged that many NGOs file petitions for upholding the norms of the
Act at the instance of foreign powers.

• Foreign entities such as Amnesty International and Peoples Union for Civil
liberties through its Indian counterparts have filed Writ Petitions
under Article 32 of the Constitution of India.

• Article 32 of the Constitution (Right to Constitutional Remedies): It

is a fundamental right, which states that individuals have the right to
approach the Supreme Court (SC) seeking enforcement of other
fundamental rights recognised by the Constitution.

o The submission alleges that many organisations in India, which function as

environmental action and human rights, are actively involved in attacking
development projects, and challenging the government. policies & notifications
and doing anti national activities.

o The Environment Protection Act, 1986 is an Act that was influenced by the United
Nations Conference on the Human Environment held at Stockholm in June, 1972
(Stockholm Conference)

• Hence, the Act has been passed by Parliament not only for protection of the
environment but also at the instance of foreign powers.
 ▪ Court’s Ruling:

o The High Court has directed the NHAI chairman to nominate a very senior officer to
look into and inquire into the manner in which the statement of objections was
filed.

o The High Court has also asked the NGO, United Conservation Movement, to
provide details of its constitution and activities carried out in environment and
conservation.

Development vs Environment

▪ Importance of Environment:

o The economic significance of the environment is evident with the range

of ecosystem services that it offers. These include:

• Provisioning services (food, irrigation, drinking water).

• Regulating services (climate regulation, water quality regulation).

• Cultural services (recreational and religious services).

• Supporting services (nutrient recycling, soil formation).

o Millions of households and developmental activities utilise these ecosystem

services for production and consumption.

▪ Relation of Environment with Development:

o Rapid industrialisation and urbanisation are inevitable to bring in desired levels of

economic development.

o This is also believed to be essential to substantially increase the per capita income.

o However, these income-generating activities are sure to have negative

environmental consequences such as pollution.

o Noticeably, environmental quality is being compromised for the goals of mass

employment generation and poverty reduction.

o It is believed that with gradual increase in income levels along with growth in
financial and technological capabilities, environmental quality could be restored.

o But the reality is that the continued growth generating activities only increasingly
deteriorates the environmental quality.

▪ Developmental Factors Affecting Environmental Sustainability:

o Lack of Environmental Compliance:

 • Neglect of environmental principles is a key reason why natural hazards end
up causing a significant number of avoidable casualties.

• Any exercise to scientifically ascertain the risk from natural hazards to a

region are barely implemented in the right spirit.

• Unregulated quarrying and the unscientific cutting of slopes into hills

aggravates the risk of soil erosion and subsequently increases the risk of
landslides.

o Ill-effects of Subsidies:

• In pursuit of providing welfare to vulnerable sections of society, the

government has provided a bulk of subsidies.

• However, subsidised nature of services like energy and electricity leads to

their overuse and undermines environmental sustainability.

• Further, subsidies also undermine the revenue base and limit the
government’s capacity to invest in new, cleaner technologies.

o No Cost to Environmental Resources:

• Access to natural resources is entirely open and no individual user bears the
full cost of environmental degradation and resources are consequently
overused.

o Complexity of Population Dynamics:

• Increasing population tends to exacerbate the linkages between

underdevelopment and environmental degradation.

• Further, poverty generates significant incentives to raise large families and

stimulate migrations, which makes urban areas environmentally
unsustainable.

• Both outcomes increase pressure on resources and consequently worsen

environmental quality, diminish productivity and reinforce poverty.

Way Forward

▪ Development remains the greatest pursuit as well as a challenge, faced by humanity.

However, despite the unprecedented economic and social progress that has been made
over the last century, poverty, famine and environmental degradation still persist on a
global scale.

▪ Moreover, environmental deterioration and climate change have started to show

irrevocable damages to the developmental progress made so far.

▪ Thus, development goals must be pursued without breaching environment regulations.

Source:IE
 5. Issues in Electoral Funding in India

Introduction

The Association of Democratic Reforms (ADR) recently released an analysis report on Sources of
Funding of National and Regional Political Parties. The report has provided some startling
observations. The total income of national and regional parties from unknown sources for FY2020-21
stood at INR 690.67 crore. Between 2004-05 and 2020-21, the national political parties have
collected more than INR 15,077 crore from unknown sources. Political experts rue that the opacity in
electoral funding is the single biggest factor in political corruption in India. Money is central to the
issue of political corruption and political parties are suspected to be the largest and most direct
beneficiaries. Corruption in elections reduces accountability, distorts representation, and introduces
asymmetry in policymaking and governance. Critics say that reforms in the electoral fundings are not
forthcoming as all political parties, irrespective of their ideology, benefit from the current opaque
set-up.

What is the meaning of Electoral Funding?

Money received by the political parties and the expenditure done by them in the process of election
(directly or indirectly) come under the ambit of Electoral Funding/Financing. Laws governing these
financial aspects are known as electoral funding/financing law. Electoral financing law can be
studied under three broad sub-groups: (a) Limits on political contributions and party and candidate
expenditure; (b) Disclosure norms and requirements; (c) State funding of elections.

Electoral funding in India is broadly governed by the provisions of the Representatives of People Act
(RoPA), 1951; the Conduct of Election Rules, 1961; the Companies Act, 2013; and the Income Tax
Act, 1961.

What are the findings of the ADR Report on Electoral Funding?

For the FY2020-21, 8 national political parties have declared INR 426.74 crore income from unknown
sources. 27 regional parties received INR 263.928 crore income from unknown sources.
Source: The Hindu

31% income of national parties and ~50% income of regional parties have come from ‘unknown
resources’. The report has treated unknown income as the income declared in the IT returns without
giving source of income for donations below INR 20,000.

Source: The Hindu

Overall, the combined income of national and regional political parties from unknown sources
amount to 36%.

Source: ADR

ADR has also scrutinized the IT Returns of the political parties and found that between FY2004-05
and 2020-21, the National Parties have collected INR 15,077.97 Crore from unknown sources.

What are the issues with Electoral Funding in India?

Lack of Transparency: Large proportion of electoral funding comes from unknown sources. This is
basic violation of transparency principles as electorate has a right to know whether the funds are
being raised through legitimate means. The electoral bonds also suffer from this lacuna, and citizens
are unaware about who is funding the political parties.

Corruption and ‘Regulatory Capture’: Activists argue that the unknown ‘donors’ include large
corporate houses, or corrupt local businessmen who fund local political leaders. This makes the
political leadership amenable to business interests. The current system tolerates lobbying and
capture. The industry / private entities use money to ensure less stringent regulation, and the money
used to finance elections eventually leads to favourable policies.

According to American political activist, Lawerence Lessig, even legal (but large) campaign donations,
amount to ‘institutional corruption‘ which compromise the political morality norms of a republican
democracy. Instead of direct exchange of money or favours, political candidates alter their views and
convictions in a way that attracts the most funding. This change of perception leads to an erosion of
public trust, which in turn affects the quality of democratic engagement.

No Limit on Funding: Earlier there was a cap on how much funds a corporate can donate to a
political party out of the profits it earns. That upper limit has been removed. This has opened an
avenue for corporates to increase funding to political parties and consequently increase their
influence on the political system.

Lack of Fairness: Access to large financial resources translates into electoral advantage. Richer
candidates and parties have a greater chance of winning elections. This distorts the level playing
field. The Supreme Court has also supported this view in the Kanwar Lal Gupta v Amar Nath
Chawla.

Contravention of Laws: Lack of disclosures contravenes various laws and ECI notifications. In spite of
the Central Information Commission (CIC) ruling, all political parties have refused to submit
themselves to the transparency that comes with Right to Information. There is widespread
prevalence of black money, bribery, and quid pro quo corruption. The Supreme Court, affirmed the
conclusions of the 2002 report of the National Commission to Review the Working of the
Constitution, recognized this reality in PUCL v Union of India.

What are the issues with Electoral Bonds?

First, Before electoral bonds were introduced, it was mandatory for political parties to make public
all donations above INR 20,000 and no corporate entity was allowed to make donations amounting
to more than 7.5% of the average net profits of a company in the preceding 3 years. The introduction
of electoral bonds not only increased the number of anonymous donors, but also the number of
shell companies donating to political parties.

Second, Electoral bonds lead to information asymmetry; only the ruling government can access the
information on who lends and to whom, leading to issues of moral hazard and adverse selection.

Third, Since the identity of the donor has been kept anonymous, it could lead to an influx of black
money; and there is a threat to the spirit of democracy. The Election Commission in April 2019 told
the Supreme Court that it did not approve of anonymous donations made to political parties,
though it was not against the Electoral Bonds Scheme.
Fourth, one of the arguments for introducing electoral bonds was to allow common people to easily
fund political parties of their choice, but more than 90% of the bonds have been of the highest
denomination (Rs 1 crore).

What should be done going ahead?

There is a need to bring reforms in electoral funding

First, the funding process should be made completely transparent. Rules regarding funding and
expenditure need to be tightened by placing an absolute cap on anonymous donations. The ADR
Report has recommended that full details of all donors should be made available for public scrutiny
under the RTI. Some countries where this is done include Bhutan, Nepal, Germany, France, Italy,
Brazil, Bulgaria, the US and Japan.

Second, There should be an upper limit on the amount that can be donated to parties (like the limit
of 7.5% of profits set under Companies Act, 2013). This will restrict influence of big corporate houses.

Third, electoral rules should be amended to regulate political advertisements, outline permissible
categories of expenditure, prevent foreign sources of donations and lay down a limited base for
public funding. The Law Commission of India in its 255th Report has recommended to cap the entire
donation received through anonymous sources at Rs. 20 crores or 20% of the total funding of a
political party.

Fourth, the ADR Report has recommended that scrutiny of financial documents submitted by the
political parties should be conducted annually by a body approved by CAG and ECI so as to enhance
transparency and accountability of political parties with respect to their funding.

Fifth, the ECI has recommended that tax exemption be awarded only to those political parties which
contest and win seats in Lok Sabha/Assembly elections. The Commission has also recommended that
details of all donors who donate above INR 2,000 be declared in public domain.

Sixth, violation of rules and transparency provisions should be stringently penalized. The Election
Commission must be provided with greater powers in this regard.

Seventh, some provisions of the Electoral Bond scheme has been questioned in the Supreme Court.
The Court must adjudicate on the issue quickly and bring more clarity.
 Some Important Reports/Commission related to Electoral Reforms

Law Commission 170th Report (1999) ‘Reform of the Electoral Laws’.

Law Commission 255th Report (2015) ‘Electoral Reforms’.

Election Commission of India (2004) ‘Proposed Electoral Reforms’.

The Goswami Committee on Electoral Reforms (1990).

The Vohra Committee Report (1993).

The Indrajit Gupta Committee on State Funding of Elections (1998).

The National Commission to Review the Working of the Constitution (2001).

What are the global best practices?

European countries such as France and Belgium have curtailed private spending on elections through
a series of legislations since the 1990s, thereby successfully negating the influence of rich corporates
in elections. France banned all forms of corporate funding in 1995 and capped individual donations
at 6,000 Euros.

Brazil and Chile have banned corporate donations after a series of corruption scandals emerged
related to corporate funding.

Conclusion

Former Judge of the US Supreme Court Justice Louis Brandeis once wrote, “We can have democracy
in this country, or we can have great wealth concentrated in the hands of a few, but we cannot have
both“. A clean, transparent electoral funding process is vital to ensure a fair electoral democracy.
Most developed countries in the West have robust mechanisms to ensure transparency in their
political systems. As India aspires to emulate the West by setting the ambition of achieving
developed country status by 2047, it must aspire for similar standards of transparency in the political
sphere. Cleaning up electoral finance can be the first step in this regard.

Syllabus: GS II, Salient features of the Representation of People’s Act

Source: The Hindu, The Hindu, ADR, ORF

6. Free Speech: Rights & Limits

Freedom of Speech and expression means the right to express one’s own opinions freely through
speech, writing, printing, pictures or any other mode. In India, under Article 19(1), the Constitution
of India guarantees to all its citizens the right to freedom of speech and expression. However, this
freedom is not absolute and under Article 19(2) reasonable restrictions can be imposed on the
exercise of this right for certain purposes.
Significance of freedom of expression enshrined under Article 19 (1) of the Constitution:

1. Societal good: Liberty to express opinions and ideas without hindrance, and especially
without fear of punishment plays a significant role in the development of a particular society
and ultimately for that state. It is one of the most important fundamental liberties
guaranteed against state suppression or regulation.

2. Self-development: Free speech is an integral aspect of each individual’s right to self-

development and fulfilment. Restrictions inhibit our personality and its growth. The
reflective mind, conscious of options and the possibilities for growth. Freedom of speech is
also closely linked to other fundamental freedoms. Thus, for full-fledged development of
personality, freedom of speech and expression is highly essential.

3. Democratic value: Freedom of speech is the bulwark of democratic Government. This

freedom is essential for the proper functioning of the democratic process as it allows people
to criticise the government In a democracy, freedom of speech and expression open up
channels of free discussion of issues. Freedom of speech plays a crucial role in the formation
of public opinion on social, political and economic matters.

4. Ensure pluralism: Freedom of Speech reflects and reinforces pluralism, ensuring that
diversity is validated and promote the self-esteem of those who follow a particular life-style.

Safeguards outlined under Article 19 (2): Article 19(2) allows the state to make laws that restrict
freedom of speech so long as they impose reasonable restrictions in the:

1. Interests of the sovereignty and integrity of India: Sovereignty and integrity of India as a
ground under Article 19 (2) was added by 16th constitutional amendment act. This was as a
reaction of the tense situation prevailing in different parts of the country. Its objective is
giving appropriate powers to impose restrictions against those individuals or organisations
who want to make secession from India or disintegration of India as political purposes for
fighting elections.

2. The security of the state: The term security of state refers only to serious and aggravated
forms of public order e.g. rebellion, waging war against the State, insurrection and not
ordinary breaches of public order and public safety. Thus speeches or expression on the part
of an individual, which incite to or encourage the commission of violent crimes, such as,
murder are matters, which would undermine the security of State.

3. Friendly relations with foreign states: This ground was added by the First Amendment Act,
1951. The object behind the provision is to prohibit unrestrained malicious propaganda
against a foreign friendly state, which may jeopardise the maintenance of good relations
between India, and that state. It is to be noted that members of the commonwealth
including Pakistan is not a foreign state for the purposes of this Constitution. The result is
that freedom of speech and expression cannot be restricted on the grounds that the matter
is adverse to Pakistan.

4. Decency or morality: Sections 292 to 294 of the Indian Penal Code provide instances of
restrictions on the freedom of speech and expression in the interest of decency or morality.
These sections prohibit the sale or distribution or exhibition of obscene words, etc. in public
places. The standard of morality varies from time to time and from place to place.
 5. Contempt of court: Restriction on the freedom of speech and expression can be imposed if it
exceeds the reasonable and fair limit and amounts to contempt of court. According to the
Section 2 of Contempt of court it may be either civil contempt or criminal contempt.

6. Defamation or incitement to an offence: A statement, which injures a man’s reputation,

amounts to defamation. Defamation consists in exposing a man to hatred, ridicule, or
contempt. The civil law in relating to defamation is still uncodified in India and subject to
certain exceptions.

Need and significance of these safeguards:

1. Social Balance: In a modern State, absolute and unrestricted individual rights cannot exist.
Freedom is more purposeful if it is coupled with responsibility. Like any other freedom, the
freedom of speech and expression has to be balanced with other social values. The liberty of
the individual is not absolute and subject to common good of all.

2. Public interest: Certain permitted prior restraints and restrictions on the freedom of speech
and expression, are made in the collective interest of society. Freedom of speech and
expression has to be reconciled with the collective interest of the society, which is known as
public interest.

3. Other’s rights: Freedom of speech and expression is inherently restricted by the rights of
other individuals of society. Any speech that can harm a large group of people and their
rights need restriction by state. In Maneka Gandhi v. Union of India, Court held
that reasonable restrictions should be such that others’ rights should not be hindered or
affected by the acts of one man.

4. State security: Restrictions are needed in order to safeguard state security and its
sovereignty. A speech may lead to secessionist tendencies and can be used against state as a
tool to spread hatred. Reasonable restrictions ensure, security of the state and its citizens.

Way forward: The Constitution does not define the expression reasonable restrictions. The following
are some of the principles which the Supreme Court of India has affirmed in Narottamdas v. State of
M.P. for ascertaining the reasonableness of restrictions:

1. Non-arbitrary: The phrase reasonable restriction connotes that the limitation imposed upon
a person in the enjoyment of a right should not be arbitrary or of an excessive nature.

2. Nature of restriction: In determining the reasonableness of statute, the court should see
both to the nature of the restriction and procedure prescribed by the statue for enforcing
the restrictions on the individual freedom. Not only substantive but also procedural
provisions of a statute also enter into the verdict of its reasonableness.

3. Objectivity: The reasonableness of a restriction has to be determined in an objective manner

and from the standpoint of the interests of the general public and not from the point of view
of persons upon whom the restrictions are imposed or upon abstract considerations.

4. Enforcing DPSP: A restriction that is imposed for securing the objects laid down in the
Directive Principles of State Policy may be regarded as reasonable restriction.
India is a democracy and citizens have a constitutionally guaranteed right to a freedom of speech and
expression which they can enforce via the Indian court system. The people of India gave to
themselves, the Constitution of India, and provided for freedom of speech and expression to ensure
free and equal society. The judiciary has upheld the restrictions that can be imposed but have also
held that the government’s interference in this right has to also be kept in check. Freedom of
Expression is among the foremost of human rights.

7. Frequent promulgation of Ordinance

This article is based on “The ordinance route is bad, repromulgation worse” which was published
in The Hindu on 20/04/2021. It talks about the Associated issues with the frequent promulgation
and repromulgation of the ordinance route.

Recently, the central government has repromulgated the Commission for Air Quality
Management in the National Capital Region and Adjoining Areas Ordinance, 2020. The ordinance
establishes a commission for air quality management in the National Capital Region.

This raises questions about the practice of issuing ordinances to make law and that of re-issuing
ordinances without getting them ratified by Parliament.

Historically, in the 1950s, central ordinances were issued at an average of 7.1 per year. However, the
number peaked in the 1990s at 19.6 per year. The last couple of years has also seen a high spike in
ordinance promulgation (16 in 2019, 15 in 2020).

The ordinance was originally conceived as an emergency provision. However, in recent times the
frequent use of ordinance route has led to the undermining the role of the legislature and the
doctrine of Separation of powers.

Constitutional Provisions Regarding Ordinances

▪ The Constitution permits the central and state governments to make laws when Parliament
(or the State Legislature) is not in session.

▪ The Indian Constitution, in Article 123, authorizes the executive to promulgate ordinances if
certain conditions are satisfied.

o Ordinances may be promulgated only if at least one House of Parliament is not in

session.

o President is satisfied that “immediate action” is necessary.

▪ The Constitution states that the ordinance will lapse at the end of six weeks from the time
Parliament (or the State Legislature) next meets.

▪ Similar provisions also exist for state governments under article 213.

Supreme Court’s Judgement on Ordinances

 ▪ RC Cooper Case 1970: Supreme Court in RC Cooper vs. Union of India (1970) held that
the President’s decision to promulgate ordinance could be challenged on the grounds that
‘immediate action’ was not required, and the ordinance had been issued primarily to bypass
debate and discussion in the legislature.

▪ DC Wadhwa Case 1987: The issue of frequent promulgation of ordinances was again brought
up in the Supreme Court through a writ petition.

o The petition was regarding the promulgation of 256 ordinances between 1967 and
1981 in Bihar.

o This included 11 ordinances that were kept alive for more than 10 years and
famously dubbed as ordinance raj.

o The Supreme court held that the legislative power of the executive to promulgate
ordinances is to be used in exceptional circumstances and not as a substitute for the
law-making power of the legislature.

▪ Krishna Kumar Singh Case 2017: Supreme Court in Krishna Kumar Singh v. the State of Bihar
held that the authority to issue ordinances is not an absolute entrustment, but is
“conditional upon satisfaction that circumstances exist rendering it necessary to take
immediate action”.

o It further stated that the re-promulgation of ordinances is a fraud on the

Constitution and a subversion of democratic legislative processes.

Associated Issues with the Ordinance Route

▪ Usurpation of Legislative Power: As lawmaking is a legislative function, this power is

provided for urgent requirements, and the law thus made has an automatic expiry date.

o An ordinance “ceases to operate” six weeks after the two Houses reassemble, except
if it is converted into an Act by then. Repromulgation sidesteps this limitation.

o To repromulgate is to effectively extend the life of an ordinance and lead to the

usurpation of legislative power by the executive.

▪ Undermining the Doctrine of Separation of Powers: In the Kesavananda Bharati v State of

Kerala case 1973, the Supreme Court listed the separation of powers as a “basic feature” of
the Constitution.

o The ordinance mechanism, in effect, is designed to remedy situations of legislative

urgency when Parliament is not in session; it is not an alternative to parliamentary
legislation.

o However, article 123 places no numeric limits on ordinances.

o In this way, the repromulgation undermines the separation of powers, as it

effectively allows the executive to make permanent legislation without legislative
input or approval.
 ▪ Ignoring Supreme Court’s Judgements: Even after tough judgments on the use of
ordinances, both the Centre and state governments have ignored the Supreme Court’s
observations.

o For example, in 2013 and 2014, the Securities Laws (Amendment) Ordinance was
promulgated three times.

o Similarly, an ordinance to amend the Land Acquisition Act was issued in December
2014, and repromulgated twice – in April and May 2015.

Conclusion

Indian Constitution has provided for the separation of powers among the legislature, executive, and
judiciary where enacting laws is the function of the legislature. The executive must show self-
restraint and should use ordinance making power only in unforeseen or urgent matters and not to
evade legislative scrutiny and debates.

Drishti Mains Question

Ordinances though were meant to be temporary, but repromulgation sidesteps this limitation and makes them
permanent. Discuss.

8. Statehood for Delhi

Context:

The Aam Admi Party has launched a campaign for full statehood for Delhi

Constitutional Debate and Constitutional Provisions:

• There has been considerable debate over statehood issue of Delhi. Lala Deshbandhu Gupta
advocated for statehood for Delhi

• However, the constituent assembly in the Constitution of India (1950) constituted four
categories of states in the First Schedule – Part A, B, C and D.

• All provinces under the rule of a presidential Chief Commissioner (except Andaman and
Nicobar Islands) were incorporated in Part C.

• Article 239-every UT shall be administrated by the president through an administrator

appointed by him/her.

• 69th Constitutional Amendment Act, 1991-Government of National Capital Territory Act

• Inclusion of Article 239AA- Granted Special Status to Delhi among Union Territories (UTs)
(also Pondicherry)

• Provided Legislative Assembly and a Council of Ministers responsible to such Assembly

• Empowered to make laws for Delhi on all matters in the State and Concurrent Lists
Exception:

1. public order and police

2. municipal services like water, drainage, electricity, transport

3. land

4. Jurisdiction of courts.

• The Council of Ministers will aid and advise the LG in the exercise of his functions in relation
to matters with respect to which the Legislative assembly has power to make law.

• In the case of a difference the LG can refer it to the president

Important Court Judgements:

2016:

• The Delhi High Court held that Lieutenant Governor had primacy in administering the NCT
Delhi

• The Court upheld the Centre’s notification of 2015 which overruled the 1998 notification
(The 1998 notification stated that the LG of Delhi should consult the chief minister on
matters of public order, police and services).

• The notification said the administrative powers of the L-G was not only in matters pertaining
to public order, land, and police but also in services

Criticism of the judgement:

• The Article 239 was basically designed to limitthe powers of the Lieutenant Governor.

• Chief limitation imposed on the LG was that he had to act upon the aid and advice of the
elected government

• However, the Delhi High Court judgement empowered the LG of Delhi and undermined the
powers of the government in Delhi. This might hinder the effective governance and
development in NCT as the LG might misuse its power of discretion

2017:

• The AAP led Delhi government had moved to Supreme Court alleging that the LG of Delhi has
been interfering in the administration which has proven to be detrimental in implementing
welfare measures in Delhi.

• The SC observed that constitution provides more power to the LG than governors and the
LG can act to his own discretion on matters stated under the law
 • However, the Court further added that lieutenant governor does not have the jurisdiction
to pronounce Delhi government’s decisions correct or not. He can only, in the situation of
disagreement, refer the matter to the President for decision.

Why is the demand for full statehood?

1. Delhi Development Authority (DDA): The Delhi government has no say over the affairs of
DDA. This hinders the effective allocation, use of land and implementing welfare schemes.

2. Police: Due to absence of control over the police force, the Delhi government faces problem
in proper maintenance of law and order in the state.

3. Municipal Corporation of Delhi: Government of Delhi has no control over the MCD. The
government is of the opinion that it hinders in implementing development measures.

4. Role of LG:

• The role and power of LG and Delhi government’s Council of Ministers has always been an
area of contestation.

• The LG has often been accused of delays and disruptions in the work of the elected
government

5. Delhi Cadre in UPSC:

• The ever increasing population and diverse nature of Delhi necessitates a cadre of its own
which would not be subjected to frequent transfers

Why Delhi has not been given statehood?

1. Critical infrastructure:

Being the national capital, Delhi hosts various critical infrastructures such as parliament, presidential
estates, and embassies. Maintenance of these is extremely important and cannot be handed over to
a different entity

2. Administration:

• Granting statehood might lead to various administrative problems especially in law and order
which would be detrimental for the national capital

• Quality of governance might decline due to impact on finances

3. Security concerns
 • Security of embassies, parliaments

• Further, there is issue of safety and security of visiting dignitaries of different countries and
also head of states. The responsibility of ensuring security to them lies on Centre and state
cannot be entrusted with it

4. Land:

• Control over land is required especially in areas with central government institutions,
embassies

International Cases:

Washington DC:

• The US Congress has not agreed to the demand for Statehood for Washington DC

• The citizens of Washington DC do not have any representatives in the US senate. It has only
one non-voting representative in the US House of Representatives.

• However, there are examples of city-states as well. Example: Brussels (Belgium) and Berlin
(Germany)

Way Forward:

1. Though granting absolute statehood is not desirable, there should be considerable sharing of
power.

2. The elected government in Delhi should be provided a decisive say in the municipal body for
a cohesive approach, and proper urban planning

3. The state government should also be given more authority on the police and made
accountable in controlling crime

4. The misuse of discretionary powers of the L-G of Delhi, if any, should be checked

5. Coordinated efforts by Centre and Delhi government for effective governance and to uphold
public interest

6. The dispute over the powers of L-G of Delhi and elected government of Delhi should be
resolved.

9. Cauvery River Water Dispute

Why in News

Recently, the Cauvery Water Management Authority (CWMA) directed Karnataka to immediately
release the balance quantum of water to Tamil Nadu.

▪ However, CWMA dropped discussion on the Mekedatu reservoir project following “strong
protest” from Tamil Nadu, Kerala and Puducherry.

Key Points
▪ Cauvery Water Dispute:

o About:

• It involves 3 states and one Union Territory (Tamil Nadu, Kerala, Karnataka
and Puducherry).

• The genesis of the dispute is 150 years old and dates back to the
two agreements of arbitration in 1892 and 1924 between the then Madras
presidency and Mysore.

• It entailed the principle that the upper riparian state must obtain consent of
lower riparian state for any construction activity viz. reservoir on the river
Cauvery.

o Recent Developments:

• From 1974, Karnataka started diverting water into its four newly made
reservoirs, without the consent of Tamil Nadu resulting in a dispute.

• To resolve the matter, the CWDT (Cauvery Water Disputes Tribunal) was
established in 1990 which took 17 years to arrive at the final order
(2007) on how Cauvery water should be shared between the 4 riparian
states in normal rainfall conditions.

• CWDT was constituted by the Central Government, in exercise of the

powers conferred by section 4 of the Inter-State River Water
Disputes Act, 1956.

• In distress years, a pro-rata basis shall be used, it instructed.

The government again took 6 year and notified the order in 2013.

• This was challenged in SC (Supreme Court) which directed Karnataka to

release 12000 cusecs of water to Tamil Nadu prompting protests in the State.

• The final verdict of the SC came in 2018 where it declared the Cauvery a
national asset and largely upheld the water-sharing arrangements finalised
by the CWDT and also reduced the allocation of water from Karnataka to
Tamil Nadu.

• As per the SC, Karnataka would get 284.75 thousand million cubic
feet (tmcft), Tamil Nadu 404.25 tmcft, Kerala 30 tmcft and
Puducherry 7 tmcft.

• It also directed the Centre to notify the Cauvery Management

Scheme. The central government notified the ‘Cauvery Water
Management Scheme’ in June 2018, constituting the ‘Cauvery
Water Management Authority’ and the ‘Cauvery Water Regulation
Committee’ to give effect to the decision.
 ▪ Mekedatu Reservoir Project:

o It aims to store and supply water for drinking purposes for the Bengaluru
city. Around 400 megawatts (MW) of power is also proposed to be generated
through the project.

o In 2018, Tamil Nadu approached the SC against the project even if Karnataka had
held that it would not affect the flow of water to Tamil Nadu.

• TN is opposed to any project being proposed in the upper riparian unless it

was approved by the SC.

River Cauvery

▪ It is known as ‘Ponni’ in Tamil, also known as Ganga of the south, and it is the fourth largest
river of southern India.

▪ It is a sacred river of southern India. It rises on Brahmagiri Hill of the Western Ghats in
southwestern Karnataka state, flows in a southeasterly direction through the states of
Karnataka and Tamil Nadu, and descends the Eastern Ghats in a series of great falls and
drains into Bay of Bengal through Pondicherry.

o Some of its tributaries are Arkavathi, Hemavathi, Lakshmana Theertha, Shimsa,

Kabini and Harangi.

Way Forward

▪ The states need to shed the regional approach as the solution lies in cooperation and
coordination, not in conflict. The planning must be done at the basin level to make the
solution sustainable and ecologically viable.

▪ In the long term, there is a need to recharge the river through afforestation, river linking, etc
and increased focus is needed on increasing water use efficiency viz. micro irrigation,
awareness in people to prudently use water and water smart strategies.

Source: TH
 10. Judicial activism and judicial Overreach

What does it Mean?

▪ Judicial Activism:

o Judicial activism signifies the proactive role of the Judiciary in protecting the rights of
citizens.

o The practice of Judicial Activism first originated and developed in the USA.

o In India, the Supreme Court and the High courts are vested with the power to
examine the constitutionality of any law, and if such a law is found to be inconsistent
with the provisions of the constitution, the court can declare the law as
unconstitutional.

o It has to be noted that the subordinate courts do not have the power to review
constitutionality of laws.

o Origin:

• The term judicial activism was coined by historian Arthur Schlesinger, Jr. in
1947.

• The foundation of Judicial Activism in India was laid down by Justice V.R
Krishna Iyer, Justice P.N Bhagwati, Justice O.Chinnappa Reddy, and Justice
D.A Desai.

o Criticism:

• Judicial Activism has led to a controversy in regard to the supremacy

between Parliament and Supreme Courts.

• It can disturb the delicate principle of separation of powers and checks and
balances.

▪ Judicial Restraint:

o Judicial Restraint is the antithesis of Judicial Activism.

o Judicial Restraint is a theory of judicial interpretation that encourages judges to limit

the exercise of their own power.

o In short, the courts should interpret the law and not intervene in policy-making.

o Judges should always try to decide cases on the basis of:

1.The original intent of those who wrote the constitution.

2.Precedent – past decisions in earlier cases.

3.Also, the court should leave policy making to others.

o Here, courts “restrain” themselves from setting new policies with their decisions.

▪ Judicial Overreach:

o When Judicial Activism goes overboard, and becomes Judicial Adventurism, it is

referred to as Judicial Overreach.

o In simpler terms, it is when the judiciary starts interfering with the proper
functioning of the legislative or executive organs of the government.

o Judicial Overreach is undesirable in a democracy as it breaches the principle of

separation of powers.

o In view of this criticism, the judiciary has argued that it has only stepped when the
legislature or the executive has failed in its own functions.

Why is it Required?

▪ Judicial Activism:

o Judicial activism has arisen mainly due to:

• The failure of the executive and legislatures to act.

• Since there is a doubt that the legislature and executive have failed to deliver
the desired results.

• It occurs because the entire system has been plagued by ineffectiveness and
inactiveness.

• The violation of basic human rights has also led to judicial activism.

• Due to the misuse and abuse of some of the provisions of the

Constitution, judicial activism has gained importance.

o Necessity of Judicial Activism:

• To understand the increased role of the judiciary, it is important to know the

causes that led to the judiciary playing an active role.

• There was rampant corruption in other organs of government.

• The executive became callous in its work and failed to deliver results
required.

• Parliament became ignorant of its legislative duties.

• The principles of democracy were continuously degrading.

• Public Interest Litigations brought forward the urgency of public

issues.
▪ In such a scenario, the judiciary was forced to play an active role. It was possible only
through an institution like judiciary which is vested with powers to correct the various
wrongs in society. In order to prevent the compromise of democracy, the Supreme Court and
High Courts took the responsibility of solving these problems.

o For example, in G. Satyanarayana vs Eastern Power Distribution Company

(2004), Justice Gajendragadkar ruled that a mandatory enquiry should be conducted
if a worker is dismissed on the ground of misconduct, and be provided with an
opportunity to defend himself. This judgement added regulations to labour law
which was ignored by legislation.

o Similarly, Vishaka vs State of Rajasthan (1997) is an important case that reminds the
need of Judicial activism. Here, the SC laid down guidelines that ought to be followed
in all workplaces to ensure proper treatment of women. It further stated that these
guidelines should be treated as a law until Parliament makes a legislation for
enforcement of gender equality.

▪ Some other famous cases of Judicial Activism include -

o Kesavananda Bharati case (1973): The apex court of India declared that the executive
had no right to intercede and tamper with the basic structure of the constitution.

o Sheela Barse v. State of Maharashtra (1983): A letter by Journalist, addressed to the

Supreme Court addressing the custodial violence of women prisoners in Jail. The
court treated that letter as a writ petition and took cognizance of that matter.

o I. C. Golaknath & Ors vs State Of Punjab & Anrs. (1967): The Supreme Court declared
that Fundamental Rights enshrined in Part 3 are immune and cannot be amended by
the legislative assembly.

o Hussainara Khatoon (I) v. State of Bihar (1979): The inhuman and barbaric conditions
of the undertrial prisoners reflected through the articles published in the newspaper.
Under article 21 of the Indian Constitution, the apex court accepted it and held that
the right to speedy trial is a fundamental right.

o A.K. Gopalan v. State of Madras (1950): The Indian Supreme Court rejected the
argument that to deprive a person of his life or liberty not only the procedure
prescribed by law for doing so must be followed but also that such procedure must
be fair, reasonable and just.

▪ Judicial Restraint:

o Judicial restraint helps in preserving a balance among the three branches of

government, judiciary, executive, and legislative.

o To uphold the law established by the government in the legislature.

o To show solemn respect for the separation of governmental problems.

o To allow the legislature and the executive to follow their duties by not reaching in
their arena of work.
 o To mark a respect for the democratic form of government by leaving the policy on
policymakers.

o Trends in Judicial Restraint:

• S.R. Bommai v Union of India (1994) is a famous example often stated to

show restraint practiced by Judiciary. The judgement stated that in certain
cases the judicial review is not possible as the matter is political. According
to the court, the power of article 356 was a political question, thus refusing
judicial review. The court stated that if norms of judiciary are applied on
matters of politics, then it would be entering the political domain and the
court shall avoid it.

• Similarly, in Almitra H. Patel Vs. Union of India (1998) the Supreme court
refused to direct the Municipal Corporation on the issue of assigning
responsibility for cleanliness of Delhi and stated that it can only assign
authorities to carry out duty that is assigned as per law.

▪ Judicial Overreach:

o The direct effect of legislative and executive negligence or inability is "judicial

overreach".

o Weak and injudicious results, not only in the making of laws, but also in their
application.

o The Indian judiciary has been criticized by many legal scholars, lawyers and judges
themselves, for playing an exceedingly activist role and overreaching.

o Impact of Judicial Overreach:

• Since the legislature is lagging behind in its function, the judiciary tends to
Overreach from its function causing a conflict between legislature and
judiciary. The clear impacts from such an Overreach of Judiciary are as
follows:

• There is a threat to the doctrine of separation of powers which

undermines the spirit of the constitution. There is a lack of harmony
between legislature and judiciary and an impression on the public of
inaction by the legislature.

• In certain scenarios like that of environmental, ethical, political,

expert knowledge is required which the judiciary might not possess.
If it renders judgement while having no experience in these
domains, then it not only undermines expert knowledge but also can
prove harmful to the country.
 • Judicial Overreach can lead to an expression of disregard by the
judiciary in the elective representation. This can decrease the faith
of the public in the institution of democracy.

o Hence, It is an obligation on the part of courts to remain under their jurisdiction and
uphold the principle of separation of powers. The Supreme court has itself reminded
other courts, in 2007, to practise Judicial restraint. It stated "Judges must know their
limits and must try not to run the government. They must have modesty and
humility, and not behave like emperors." Further, it said, "In the name of judicial
activism, judges cannot cross their limits and try to take over states which belong to
another organ of the state".

o Examples of Judicial Overreach:

• A famous case of Judicial Overreach is censorship of the Film Jolly LLB II. The
case was filed as a writ petition, and alleged that the film portrayed the legal
profession as a joke, making it an act of contempt and provocation. The
Bombay High Court appointed a three person committee to watch the movie
and report on it. This was viewed as unnecessary, as the Board Of Film
Certification already exists and is vested with the power to censor. On the
basis of the report of the committee, four scenes were removed by the
directors. It was seen as violative of Article 19(2), as it imposed restriction on
freedom of speech and expression.

• On a PIL about road safety, the Supreme Court banned the Sale of Liquor, at
retail shops, restaurants, bars within 500m of any national or state highway.
There was no evidence presented before the court that demonstrated a
relation of ban on liquor on highways with the number of deaths. This
judgement also caused loss of revenue to state governments and loss of
employment. The case was seen as an Overreach because the matter was
administrative, requiring executive knowledge.

How is it Manifested?

▪ Judicial Activism:

o Through Judicial Review

• Judicial review is the doctrine under which legislative and executive actions
are subject to review by the judiciary.

• Judicial review is an example of check and balances in a modern

governmental system.

• Judicial review is adopted in the Constitution of India from the Constitution

of the United States of America.

• It gives power to the Supreme Court to examine the constitutionality of any

law and if such a law is found to be inconsistent with the provisions of the
Constitution, the Court can declare the law as unconstitutional.
 o Through Public Interest Litigation:

• Public interest litigation means a suit filed in a court of law for the protection
of public interest.

• Judicial activism in India acquired importance due to public interest

litigation. It is not defined in any statute or act.

• In India, PIL initially was resorted to towards improving the lot of

the disadvantaged sections of the society who due to poverty and ignorance
were not in a position to seek justice from the courts.

• Justices P.N. Bhagwati and V.R. Krishna Ayer has played a key role in
promoting this avenue of approaching the apex court of the country.

o Through Constitutional Interpretation:

• Constitutional interpretation comprehends the methods or strategies

available to people attempting to resolve disputes about the meaning or
application of the Constitution.

• The possible sources for interpretation include the text of the Constitution,
its "original history," including the general social and political context.

o Through Access to international statutes for ensuring constitutional rights:

• The court refers to various international statutes in its judgements.

• This is done by the apex courts to ensure the citizens of their rights.

• International Law is referred to by Supreme Court's judgments in many

cases. Example: Recently, SC reaffirmed the rights of disabled person to live
with dignity in Jeeja Ghosh v. Union of India. The court underlined the
Vienna Convention on the law of treaties, 1963 which requires India's
internal legislation to comply with international commitments.

▪ Judicial Restraint:

o Through referring to the original intent of those who wrote the constitution:

• Judges look to the original intent of the writers of the Constitution.

• Judges refer to the intent of the legislatures that wrote the law and the text
of the law in making decisions.

• Any changes to the original Constitution language can only be made by

constitutional amendments.

o Through Precedent:
 • Precedent means past decisions in earlier cases.

• Judicially-restrained judges respect stare-decisis, the principle of upholding

established precedent handed down by past judges.

o Through leaving the legislature and executive to decide policies:

• Judicial Restraint is practised when the court leaves policy making to others.

• The courts generally refer to interpretations of the constitution by the

Parliament or any other constitutional body.

How do they Differ?

▪ Judicial Activism VS Judicial Restraint:

o On basis of Meaning:

• Judicial activism: interpretation of the constitution to advocate

contemporary values and conditions.

• Judicial restraint: limiting the powers of the judges to strike down a law.

o On basis of Goals:

• Judicial restraint: the judges and the court encourage reviewing an existing
law rather than modifying the existing law, whereas in judicial activism: it
gives the power to overrule certain acts or judgments.

o On the basis of Intent:

• Judicial activism judges should look beyond the original intent of the
framers.

• In Judicial restraint, Judges should look to the original intent of the writers of
the Constitution.

o On basis of Power:

• In Judicial activism, the judges are required to use their power to correct any
injustice especially when the other constitutional bodies are not acting.

• Judicial restraint is limiting the powers of the judges to strike down a law.

o On basis of their Role:

• Judicial activism has a great role in formulating social policies on issues like
protection of the rights of an individual, civil rights, public morality, and
political unfairness.
 • Judicial restraint helps in preserving a balance among the three branches of
government, judiciary, executive, and legislative.

Conclusion

▪ In India, Judiciary has played an active role through its activism, especially through PIL. This
has restored the rights of disadvantaged sections of the society.

▪ The Supreme Courts and the High Courts have worked in favour of progressive social policies
and citizens hold a high regard for the institution of judiciary.

▪ However, in a democracy, it is important to maintain the principle of separation of powers

and uphold the legitimacy of the three organs of government.

o It can be possible only when the executive and legislature are attentive and
functional.

o At the same time, the Judiciary should be cautious of stepping into spheres of
activity that does not belong to it.

11. Judicial appointment: Collegium Vs NJAC

Introduction

There has been an ongoing confrontation between the Government and the Judiciary regarding the
issue of Judicial Appointments (of Judges to Higher Judiciary). The Government has issued concerns
regarding the Collegium System, calling it opaque; and the invalidation of the National Judicial
Appointments Commission (NJAC) by the Supreme Court in 2015. There has been disagreement
between the Government and the Supreme Court regarding the names recommended by the
Supreme Court Collegium for appointments of Judges to Higher Judiciary. The Government has
reiterated the need for a National Judicial Appointments Commission (NJAC), prompting the
Supreme Court to defend the present Collegium system. The friction between two organs of the
State does not bode well for the functioning of the democratic set-up. Experts have pointed out
benefits and shortcomings with both the systems. In this context, the Government and the Judiciary
must resolve the differences amicably and arrive at a system that is a best fit between the two: NJAC
and the Collegium System.

What is the current mechanism of Judicial Appointments?

At present, the Judicial Appointments and transfers (Higher Judiciary, Supreme Court and the High
Courts) are undertaken through the ‘Collegium System’.

The Collegium of the Supreme Court is a body of 5-Judge body, headed by the Chief Justice of India.
It includes 4 senior-most Judges of the Supreme Court. The Collegium recommends the name of
Judges to be appointed to the Court.

The Government also undertakes background checks of the candidates through its agencies like
Intelligence Bureau (IB). The Government may raise objections to the choice and ask for clarification.
The Government can return the recommendations of the Collegium for reconsideration. However, if
the recommendations are reiterated, the Government must accept them (SC Judgment).

The Collegium System has not been mentioned in the Constitution. It has evolved through series of
Judgments of the Supreme Court. These Judgments are Gupta & Others v. Union of India, 1981 (First
Judges Case), Supreme Court Advocates on Record Association Vs. Union of India, 1993 (Second
Judges Case) and the In re Special Reference 1 of 1998 (Third Judges Case).

What are the concerns associated with the Collegium System?

Constitutional Status: The Collegium is not prescribed in the Constitution. Article 124 mentions
consultation, which the SC interpreted as ‘concurrence’ in Second Judges Case (1993). During the
hearing against the NJAC, the then SC Bar President had argued that the Constituent Assembly had
considered a proposal for making Judges’ appointment ‘in concurrence’ with the CJI but had
eventually rejected it. The Collegium

Transparency There is no official procedure for selection or any written manual for functioning of the
Collegium. The parameters considered for selection (or rejection) are not available in the public
domain.

Accountability: The selections of Judges by the Judges is considered undemocratic. Judges are not
accountable to the people or any other organ of the State (Legislature or Executive). It can add an
element of arbitrariness in functioning.

Criticism by Judges: Many retired Judges have criticized the working of the Collegium, especially the
lack of transparency. Several controversial appointments have been made despite objections by the
member-Judges of the Collegium.

No Checks: There are no checks on the process. Nor has there been any review regarding the
effectiveness of the process. Critics of the system argue the phenomena of ‘Uncle Judges’ wherein
near relatives, kith and kin of sitting Judges are appointed to the higher judiciary leading
to nepotism. Law Commission in its 230th Report (2012) had recommended that that the Judges,
whose kith and kin are practicing in a High Court, should not be appointed in the same High Court.
The absence of transparency, accountability and external checks creates space for
subjectivity and individual bias in appointments. In some cases, the principle of seniority has been
ignored.

No Reforms: The Supreme Court did not amend the contentious provisions of the NJAC Act or added
safeguards to the Act. Instead it struck down the whole Act. The Supreme Court reverted to the old
Collegium System. However, the Court did not take any step to address the concerns associated with
the Collegium System.

No Global Equivalent: India is perhaps the only country where Judges appoint other Judges without
involvement of any other organ of the State.

What was the National Judicial Appointments Commission (NJAC)?

The Parliament had passed the 99th Constitutional Amendment Act, 2014 and the National Judicial
Appointments Act, 2014 that proposed to create a National Judicial Appointments Commission
(NJAC). The NJAC was supposed to be an independent Commission to replace the Collegium
System to appoint Judges to the higher Judiciary.

The Commission would have consisted of 6 members: (a) The Chief Justice of India as the ex-officio
Chairperson; (b) Two senior-most Supreme Court Judges as ex-officio members; (c) The Union
Minister of Law and Justice as ex-officio member; (d) Two eminent persons from civil society. The
eminent persons were to be nominated by a committee consisting of the Chief Justice of India, Prime
Minister of India and the Leader of Opposition in the Lok Sabha. One of the eminent persons was to
be nominated from SC/ST/OBC/minorities or women.

The NJAC Act prescribed the procedure to be followed by the Commission to appoint judges. The
Act empowered any 2 members of the NJAC to veto a recommendation if they did not agree with it.

In 2015, the Supreme Court had declared the Amendment Act and the NJAC Act as unconstitutional,
as it impinged on the independence of the Judiciary and undermined the basic structure of the
Constitution

What were the issues associated with the National Judicial Appointments Commission (NJAC)?

First, the two eminent persons to be part of the NJAC need not have any expertise in Law or related
to the functioning of the Courts. This would created an avenue for the Government to appoint any
person to the Commission.

Second, Certain terms were left unexplained and ambiguous in the Acts e.g., Section 5(1) of the NJAC
Act required the NJAC to recommend the senior-most Judge of the Supreme Court as the Chief
Justice of India “if he is considered fit to hold the Office”. However the criteria for fitness has not
been defined.

Third, the veto power by any two members could have resulted in overriding of the Judicial opinion.

Fourth, the CJI had no Casting Vote. The NJAC had an even number of 6 members but the
Chairperson, the Chief Justice of India, had no casting vote. A casting vote could have been useful in
avoiding a deadlock (due to split in the even number of votes).

Fifth, The Chief Justice and two senior-most judges of every High Court had to nominate persons to
the NJAC for appointment as High Court Judges. Simultaneously, the NJAC could also nominate
persons for appointment as High Court Judges. This could have resulted in conflict if the two set of
nominees were different.
Sixth, The NJAC had the power to frame regulations laying down the criteria of suitability, and the
procedure of appointing judges of the SC and the HCs. The Parliament had the power to nullify these
regulations, thus giving over-riding powers to the Legislature over Judiciary.

What are the benefits of the Collegium System?

Checks Interference of the Executive: The system isolates Judiciary from the influence of Executive
and Legislature. It ensures independence of the Judiciary. The interference of the Executive
manifested during Emergency when several settled conventions were disrupted like appointment of
senior-most Judge as the Chief Justice.

Executive as Main Litigant: The Government is the main litigant in Courts accounting for ~50% of the
cases. Prominence to the Executive in appointments may impact impartiality of the Judiciary in
adjudication.

Expertise: Executive may lack the expertise regarding requirements of a Judge. The Judiciary may be
the best ‘judge’ in this regard.

Safeguarding the Constitution: Excessive Government control over Judiciary will make the Judges
vulnerable to external influence. Judicial Independence is absolutely essential to safeguard the
Constitution and underlying principles like Right to Life, Right to Privacy etc.

What should be done going ahead?

Revive NJAC: Many judicial experts, including former Judges contend that NJAC system can be a
better alternative than the Collegium system, provided the infirmities in the NJAC Act are rectified. In
this context, the NJAC can be revived. All stakeholders like Judiciary, Legislature, Bar
Associations should be consulted before finalization of any proposal.

Ensure Smooth Functioning: Till a new system is established, the Government should adhere to the
recommendations of the Collegium and make the appointments in a prompt manner. Delay in
appointments and needless friction should be avoided.

Finalize MoP: The Government and Judiciary should cooperate to finalize the Memorandum of
Procedure (MoP) regarding judicial appointments. The MoP should have clear guidelines like
transparency, eligibility criteria, mechanism for complaints against candidates etc.

Bring Transparency: The Judiciary should bring more transparency in the process of appointments.
Collegium must disclose the reasons for selection and rejection of a candidate.

All India Judicial Services (AIJS): Several experts have argued for establishment of All India Judicial
Services (AIJS) to improve the quality of judges in the lower Judiciary. This should be consulted and
implemented post consensus among all stakeholders.

Secretariat: Experts recommend that a well-resourced independent secretariat for judicial

appointments should be established. There should be a comprehensive candidate database as well.
It is necessary to be aware of vacancies in advance in order to facilitate quick judicial appointments.

Conclusion

The system of Judicial Appointments should be improved expeditiously. Judicial vacancy is one of the
major reason for judicial pendency. All organs of the State should cooperate with each other with
right citizen-centric spirit to ensure smooth functioning. Both the Collegium System and the NJAC
have their pros and cons. The Government, the Parliament and the Judiciary should coordinate with
each other to design the best possible system for Judicial Appointments.

Syllabus: GS II, Separation of powers between various organs; Structure, organization and functioning
of the Executive and the Judiciary.

Source: Indian Express, Indian Express, The Hindu, The Hindu

12. Was Kashmir an independent nation? Learn the history of Kashmir

Kashmir, and adjacent areas like Gilgit, Jammu, and Ladakh – were part of the different empires at
different times. Over the years, this area was under the control of Hindu rulers, Muslim emperors,
Sikhs, Afghans, and Britishers.

During the period before AD 1000, Kashmir was an important center of Buddhism and Hinduism.
Many dynasties like Gonanditya, Karkota, Lohara ruled Kashmir and surrounding areas of North-
western India.

The Hindu dynasty rule which extended until 1339 was replaced by the Muslim rule by Shah Mir who
became the first Muslim ruler of Kashmir, inaugurating the Shah Mir dynasty. A few centuries later,
the last independent ruler Yusuf Shah Chak was deposed by the Mugul emperor Akbar the Great.

Akbar conquered Kashmir in 1587, making it part of the Mughal Empire. Subsequently, the Mughal
ruler Aurangzeb expanded the empire further.

Thus, it can be seen that under the Mughal rule, which extended nearly all of the Indian
subcontinent, Kashmir was an integral part of India – however, not an independent nation.

Kashmir Region – After Mughals

Aurangzeb’s successors were weak rulers. Later Mughals failed to retain Kashmir. After Mughal rule,
it passed to Afghan, Sikh, and Dogra rule.

In 1752, Kashmir was seized by the Afghan ruler Ahmed Shah Abdali. The Afghan Durrani Empire
ruled Kasmir from the 1750s until 1819 when Sikhs, under Ranjit Singh, annexed Kashmir and ended
the Muslim rule.

By the early 19th century, Sikhs under Maharaja Renjith Singh took control of Kashmir. He had earlier
annexed Jammu. The Sikhs ruled Kashmir until they were defeated by the British (First Anglo-Sikh
War) in 1846.

After that Kashmir became a princely state of the British Empire – under the Dogra Dynasty.

Jammu and Kashmir – as a princely state of the British Empire

Maharaja Gulab Singh of Dogra Dynasty signed the ‘Treaty of Amritsar’ with the British East India
Company in 1846. Under this treaty, he paid Rs. 75 lakhs to the East India Company in 1846 in
exchange for Kashmir and some other areas. Jammu and Kashmir as a single entity was unified and
founded (1846).

Zorawar Singh, a General in the Dogra Anny later led many campaigns in the northern areas like
Ladakh, Baltistan, Gilgit, Hunza and Yagistan, consolidating smaller principalities. He expanded the
dominions of Maharaja Gulab Singh.

However, Jammu and Kashmir, from 1846 until 1947, remained a princely state ruled by Jamwal
Rajput Dogra Dynasty. Like all other princely states in India then, Kashmir too enjoyed only a partial
autonomy, as the real control was with the British.

The ruler’s stand (at the time of Partition)

During the time of partition of British India (1947), Jammu and Kashmir (J&K) was a Princely State.
Britishers had given all princely states choice – either to join India or to join Pakistan or even to
remain independent.

The ruler of Kashmir during that time (1947) was Maharaja Hari Singh, the great-grandson of
Maharaja Gulab Singh. He was a Hindu who ruled over a majority-Muslim princely state.

He did not want to merge with India or Pakistan.

Hari Singh tried to negotiate with India and Pakistan to have an independent status for his state. He
offered a proposal of Standstill Agreement to both the Dominion, pending a final decision on State’s
accession. On August 12, 1947, the Prime Minister of Jammu and Kashmir sent identical
communications to the Government of India and Pakistan.
Pakistan accepted the offer and sent a communication to J&K Prime Minister on August 15, 1947. It
read, “The Government of Pakistan agrees to have Standstill Agreement with Jammu and Kashmir for
the continuation of existing arrangements …”

India advised the Maharaja to send his authorized representative to Delhi for further discussion on
the offer.

What were Kashmiri people’s aspiration in 1947?

Kashmiri people took part extensively in the Indian Nationalist Movement. They not only wanted to
get rid of the British rule but also never wanted to be under the rule of the Dogra dynasty once the
nationalist movement achieves its mission. The Kashmiris had prefered democracy to monarchy.

Jammu and Kashmir was always a secular state – with a history of Hindu, Muslim, and Sikh rule. Even
though the majority population was Muslims, it then had a significant Hindu population as well.

India in 1947 had suggested conducting a plebiscite to know the aspirations of Kashmiri people. With
tall leaders of Jammu and Kashmir like Sheik Abdullah on its side, cherishing the common values –
secularism, democracy, and pan-India nationalism – India was confident to win the Plebiscite if it was
held in 1947.

India’s stand with Junagadh, another princely state, was also to conduct a plebiscite. In 1947, upon
the independence and partition of India, the last Muslim ruler of the Junagadh state, Muhammad
Mahabat Khanji III, decided to merge Junagadh into the newly formed Pakistan. The majority of the
population were Hindus. The conflict led to many revolts and also a plebiscite, resulting in
the integration of Junagadh into India.

However, the Pakistan attack on Kashmir in October 1947 changed all dynamics. The exact
aspirations of Kashmiri People at that time is still unknown – as a plebiscite or referendum was never
held.

The Pakistan Invasion of Kashmir in 1947

Pakistan, though entered into Standstill Agreement with Jammu and Kashmir, had an eye on it. It
broke the Standstill Agreement by sponsoring a tribal militant attack in Kashmir on October 1947.
Pashtun raiders from Pakistan invaded Kashmir in October 1947 and took control over a large area.
Hari Singh appealed to the Governor General of free-India, Lord Mountbatten for assistance.

India assured help on condition Hari Singh should sign the Instrument of Accession. Maharaja Hari
Singh signed the instrument of accession with India (1947). It was also agreed that once the situation
normalised, the views of the people of J&K will be ascertained about their future.

Jammu and Kashmir signs the Instrument of Accession with India

The Maharaja Hari Singh signed Instrument of Accession to India on 26 October 1947 in Srinagar.

As soon as the accession documents were signed, the Indian Armed Force took over the stage to
repulse Pakistan-supported tribal assault.

Indian and Pakistani forces thus fought their first war over Kashmir in 1947-48.

India successfully drove out most of the Pak-supported tribal militants from Kashmir occupation.
However, one part of the State came under Pakistani control. India claims that this area is under
illegal occupation. Pakistan describes this area as ‘Azad Kashmir’. India however, does not recognize
this term. India uses the term Pak occupied Kashmir (PoK) for the area of Kashmir under the control
of Pakistan.

India brings the United Nations (UN) into the picture

India referred the dispute to the United Nations Security Council on 1 January 1948. Following the
set-up of the United Nations Commission for India and Pakistan (UNCIP), the UN Security Council
passed Resolution 47 on 21 April 1948.

The UN Resolution was non-binding on India and Pakistan. However, this is what the UN resolution
mentioned:

UN Resolution on Jammu and Kashmir

The UN resolutions clearly said :

• Pakistan is the aggressor in the state.

 • Pakistan has to vacate all occupied territory in state and handover the vacated territory to
India.

• India has to remove all its forces leaving aside enough to maintain law and order.

• India to conduct a plebiscite in the state.

Why no Plebiscite or Referendum was held in Kashmir yet?

• The state of Jammu and Kashmir is defined as it existed on or before the invasion of Pakistan
on 22nd October 1947. This includes the present territory of Pak occupied Kashmir (POK),
Gilgit, Baltistan, Jammu, Laddhak and Kashmir valley.

• Pakistan asked for time to vacate its occupation but it never complied.

• As nearly one-third of the state of Jammu and Kashmir is still under the occupation of
Pakistan, it is a noncompliance of conditions leading to the plebiscite.

Sheikh Abdullah’s movement – Formal incorporation of Kashmir into the Indian Union

Kashmir’s first political party, the Muslim Conference, was formed in 1925, with Sheikh Abdullah as
president. Later, in 1938, it was renamed as National Conference. The National Conference was a
secular organisation and had a long association with the Congress. Sheikh Abdullah was a personal
friend of some of the leading nationalist leaders including Nehru.

National Conference started a popular movement to get rid of the Maharaja. Sheikh Abdullah was
the leader.

After the Maharaja Hari Singh signed an ‘Instrument of Accession’ with the Government of India,
Sheikh Abdullah took over as the Prime Minister of the State of J&K (the head of the government in
the State was then called Prime Minister) in March 1948.

Sheikh Abdullah was against Jammu and Kashmir joining Pakistan. However, he took a pro-
referendum stance and delayed the formal accession to India. The pro-Indian authorities dismissed
the state government and arrested Prime Minister Sheikh Abdullah.

The new Jammu and Kashmir government ratified the accession to India. In 1957, Kashmir was
formally incorporated into the Indian Union.

Kashmir Issue – External Disputes

Externally, ever since 1947, Kashmir remained a major issue of conflict between India and
Pakistan (and between India and China to a minor extent).

Pakistan has always claimed that Kashmir valley should be part of Pakistan. The conflict resulted in 3
main wars between India and Pakistan – 1947, 1965, and 1971. A war-like situation erupted in 1998
as well (Kargil war).

Pakistan was not only the illegal occupant of the Kashmir region. China too started claiming parts of
the princely state of Jammu and Kashmir.

By the 1950s, China started to gradually occupy the eastern Kashmir (Aksai Chin). In 1962, India
fought a war with China over its encroachments, however, China defeated India. To make matters
worse, Pakistan ceded the Trans-Karakoram Tract of Kashmir (Saksham valley) to China.

Kashmir Issue – Internal Disputes

Internally, there is a dispute about the status of Kashmir within the Indian union.

Kashmir was given autonomy and a special status by article 370 in the Indian Constitution. Articles
like 370, 371, 35A etc are connected with privileges given to Jammu and Kashmir.

WHAT IS THE SPECIAL STATUS GIVEN TO JAMMU AND KASHMIR?

• Article 370 gives greater autonomy to Jammu and Kashmir compared to the other States of
India.

• The State has its own Constitution.

• All provisions of the Indian Constitution are not applicable to the State.

• Laws passed by the Parliament apply to J&K only if the State agrees.

• Non-Kashmiri Indians cannot buy property in Kashmir.

This special status has provoked two opposite reactions.

A SECTION FEELS THAT ARTICLE 370 IS NOT NEEDED!

There is a section of people outside of J&K that believes that the special status of the State conferred
by Article 370 does not allow full integration of the State with India. This section feels that Article
370 should, therefore, be revoked and J&K should be like any other State in India.

ANOTHER SECTION FEELS THAT ARTICLE 370 IS NOT ENOUGH!

Another section, mostly Kashmiris, believe that the autonomy conferred by Article 370 is not
enough.

MAJOR GRIEVANCES OF KASHMIRIS:

Kashmiris have expressed at least three major grievances.

• First, the promise that Accession would be referred to the people of the State after the
situation created by tribal invasion was normalised, has not been fulfilled. They demand a
‘Plebiscite’ at the earliest.

• Secondly, there is a feeling that the special federal status guaranteed by Article 370, has been
eroded in practice. This has led to the demand for restoration of autonomy or ‘Greater State
Autonomy’.

• Thirdly, it is felt that democracy which is practised in the rest of India has not been similarly
institutionalised in the State of Jammu and Kashmir.

Politics since 1948 – Conflict between the Kashmir State Government and the Central Government
of India

After taking over as the Prime Minister, Sheikh Abdullah initiated major land reforms and other
policies which benefited ordinary people. But there was a growing difference between him and the
central government about his position on Kashmir’s status. He was dismissed in 1953 and kept in
detention for a number of years.

The leadership that succeeded him did not enjoy as much popular support and was able to rule the
State mainly due to the support of
the Centre. There were serious allegations of malpractices and rigging in various elections.
During most of the period between 1953 and 1974, the Congress party exercised a lot of influence on
the politics of the State. A truncated National Conference (minus Sheikh Abdullah) remained in
power with the active support of Congress for some time but later it merged with the Congress.

Thus the Congress gained direct control over the government in the State.

In the meanwhile, there were several attempts to reach an agreement between Sheikh Abdullah and
the Government of India.

Finally, in 1974 Indira Gandhi reached an agreement with Sheikh Abdullah and he became the Chief
Minister of the State.

The revival of National Conference (1977)

He revived the National Conference which was elected with a majority in the assembly elections held
in 1977.

Sheikh Abdullah died in 1982 and the leadership of the National Conference went to his son, Farooq
Abdullah, who became the Chief Minister.

But he was soon dismissed by the Governor and a breakaway faction of the National Conference
came to power for a brief period.

The dismissal of Farooq Abdullah’s government due to the intervention of the Centre generated
a feeling of resentment in Kashmir. The confidence that Kashmiris had developed in the democratic
processes after the accord between Indira Gandhi and Sheikh Abdullah, received a setback.

The feeling that the Centre was intervening in politics of the State was further strengthened when
the National Conference in 1986 agreed to have an electoral alliance with the Congress, the ruling
party in the Centre.

1987 Assembly Elections, Political Crisis, and Insurgency

It was in this environment that the 1987 Assembly election took place. The official results showed a
massive victory for the National Conference-Congress alliance and Farooq Abdullah returned as Chief
Minister.

But it was widely believed that the results did not reflect the popular choice and that the entire
election process was rigged.

A popular resentment had already been brewing in the State against the inefficient administration
since the early 1980s. This was now augmented by the commonly prevailing feeling that democratic
processes were being undermined at the behest of the Centre. This generated a political crisis in
Kashmir which became severe with the rise of the insurgency.

By 1989, the State had come in the grip of a militant movement mobilised around the cause of a
separate Kashmiri nation.

The insurgents got moral, material and military support from Pakistan. The balance of influence had
decisively tilted in Pakistan’s favour by the late 1980s, with people’s sympathy no longer with the
Indian union as it had been in 1947-48, 1965 or 1971.

The terrorists and militants drove out almost all the Hindus from the Kashmir valley, ensuring that a
future plebiscite (if it happens) will be meaningless.
India imposed the Armed Forces Special Powers Act (AFSPA) in Jammu and Kashmir by 1990.

For a number of years, the State was under President’s rule and effectively under the control of
the armed forces. Throughout the period from 1990, Jammu and Kashmir experienced violence at
the hands of the insurgents and through army action.

1990 and beyond – Growing Trust Deficit

After 1987, the pro-India sentiments of Kashmiri people got tilted heavily towards Kashmiri
Separatism. Pakistan, of course, added fuel to the fire – by giving moral and financial support to
terrorists, militants, and insurgents. As a result, Kashmir frequently witnessed violence, curfew,
stone-pelting, and firing between the troops of India and Pakistan across Line of Control (LoC).

Thousands of soldiers, civilians, and militants have been killed in the uprising and the Indian
crackdown since 1989.

Even though state elections are conducted, Kashmir has not returned to the normalcy before 1987.

Assembly elections in the State were held only in 1996 in which the National Conference led by
Farooq Abdullah came to power with a demand for regional autonomy for Jammu and Kashmir.

J&K experienced a very fair election in 2002. The National Conference failed to win a majority and
was replaced by the People’s Democratic Party (PDP) and Congress coalition government.

In 2015, India’s ruling BJP party is sworn into government in Indian-administered Kashmir for the first
time in coalition with local People’s Democratic Party, with the latter’s Mufti Mohammad Sayeed as
chief minister (followed by Mehbooba Mufti because of the death of her father and party founder).
However, this coalition didn’t last for long.

Even though the Government of India is taking many steps to stop the insurgency and bring Kashmir
back to normalcy, the terrorist attacks like that in Pulwama has seriously hindered the peace process.

The Current Stand of India – Regarding Kashmir Question

• No more mediation with the UN or any other other third parties.

• India and Pakistan should resolve issues through bilateral talks as agreed by the Simla
Agreement.

• No Plebiscite in Kashmir unless Pakistan reverses the situation back to what was in1947
(territory and demographics).

Who are the Kashmir Separatists?

• All Parties Hurriyat Conference

• Jammu Kashmir Liberation Front

• Harkat-ul-Jihad al-Islami

• Lashkar-e-Taiba

• Jaish-e-Mohammed

• Hizbul Mujahideen

• Harkat-ul-Mujahideen
 • Al-Badr

• Ansar Ghazwat-ul-Hind Flag.png Ansar Ghazwat-ul-Hind (Since 2017)

What do Separatists demand?

Separatist politics which surfaced in Kashmir from 1989 has taken different forms and is made up of
various strands.

• There is one strand of separatists who want a separate Kashmiri nation, independent of India
and Pakistan.

• Then there are groups that want Kashmir to merge with Pakistan.

• Besides these, there is a third strand which wants greater autonomy for the people of the
state within the Indian union.

Demand for intra-state autonomy

Even though the name of the state is Jammu and Kashmir (J&K), it comprises three social and
political regions: Jammu, Kashmir and Ladakh.

• Jammu – The Jammu region is a mix of foothills and plains, of Hindus, Muslims and Sikhs and
speakers of various languages.

• Kashmir – Kashmir Valley is the heart of the Kashmir region. The people are Kashmiri
speaking and are mostly Muslims. There is also a small Kashmiri speaking Hindu minority.
 • Ladakh – The Ladakh region is mountainous, has a very little population which is equally
divided between Buddhists and Muslims. Ladakh is divided into two main regions – Leh and
Kargil.

It should also be noted that out of the 3 main administrative divisions – Jammu, Kashmir, and Ladakh
– insurgency and demand for independence are high only in the Kashmir Valley. Most of the people
in Jammu and Ladakh still wish to be part of India, even though they demand autonomy in a different
way. They often complain of neglect and backwardness. The demand intra-State autonomy is as
strong as the demand for State autonomy in regions of Jammu and Ladakh.

Article 370: Changes made via Presidential order of 2019

On 5 August 2019, Home Minister Amit Shah announced in the Rajya Sabha (upper house of the
Indian Parliament) that the President of India had issued The Constitution (Application to Jammu
and Kashmir) Order, 2019 (C.O. 272) under Article 370, superseding the Constitution (Application to
Jammu and Kashmir) Order, 1954.

The order stated that all the provisions of the Indian Constitution applied to Jammu and Kashmir.

While the 1954 order specified that only some articles of the Indian constitution to apply to the
state, the new order removed all such restrictions.

This in effect meant that the separate Constitution of Jammu and Kashmir stood abrogated.

The President issued the order with the “concurrence of the Government of State of Jammu and
Kashmir”, which apparently meant the Governor appointed by the Union government.

Change of status: Jammu and Kashmir Reorganisation Act, 2019

The latest map of Jammu Kashmir and Ladakh

After the Government of India repealed the special status accorded to Jammu and Kashmir
under Article 370 of the Indian constitution in 2019, the Parliament of India passed the Jammu and
Kashmir Reorganisation Act, which contained provisions that dissolved the state and reorganised it
into two union territories – Jammu and Kashmir in the west and Ladakh in the east.

The two union territories came into existence on 31 October 2019, which was celebrated as National
Unity Day.

The union territory of Jammu and Kashmir was proposed to have a legislature under the bill whereas
the union territory of Ladakh is proposed to not have one.

Urge for Peace

The initial period of popular support to militancy has now given way to the urge for peace.

The Centre has started negotiations with various separatist groups. Instead of demanding a separate
nation, most of the separatists in the dialogue are trying to re-negotiate a relationship of the State
with India.

Conclusion

The Kashmir issue – has multiple dimensions – external and internal; inter-state as well as intra-state.
Not even the separatists are on the same ground – their demands are different.

The princely state of Jammu and Kashmir which was under the control of British India – is now not
entirely with India. Pakistan and China too now occupy a significant portion of the territories of the
erstwhile princely state.

Of course, the Kashmir problem also includes the issue of Kashmiri identity known as Kashmiriyat.
However, almost every state in India has its own identity – Tamil Nadu, Karnataka, West Bengal or
Kerala. However, the people in each of these states even when seeing themselves as Tamilians,
Kannadagans, Bengalis or Malayalis are also able to see the bigger picture – they identify themselves
as Indians.

Jammu and Kashmir is one of the living examples of plural society and politics. Not only are there
diversities of all kind (religious, cultural, linguistic, ethnic, tribal) but there are also divergent political
aspirations.

Unfortunately, from the perspective of the youth of Kashmir, there is a growing trust-deficit. It’s a
hard reality that Jammu and Kashmir never functioned like other Indian states since its accession to
India. It had given higher autonomy initially, however it got eroded in practice.

The first step to solve the Kashmir issue is to identify the problems behind the alienation of Kashmir.
Here are some of them:

• Mishandling of the Kashmir Issue by the successive Central governments of India – which
includes frequent dismissal of State Assemblies.

• The state governments of Kashmir failed to distribute the benefits of growth and
development to every area of the Kashmir.

• The terrorist and military outfits in Pakistan has been distancing the youth of Kashmir from
the democratic form of the Indian government.

• The regular presence of the Indian Armed Force or CAPF in the Kashmir interiors, and the
misuse of provisions like ASFPA.
To find a solution to Kashmir issue – all stakeholders should be considered.

What is the need of the hour is proper integration of Kashmir, Jammu, and Ladakh with India.
Integration should not be seen in a limited dimension of territory. India should be able to win the
heart of the people of Kashmir.

Only time can tell about the success of the changes made with respect to the provisions of Article
370.

Kashmir was and still is an integral part of India. It has a plural and secular culture – just like the rest
of India. Urgent steps should be taken to bridge the gaps of trust deficit in the minds of Kashmiri
youth. All Kashmiris should get the due share in the growth story of India. Like all other states in
India, there should be adequate political autonomy in Jammu and Kashmir.

Violence, terrorism, and killings are never the answer – be it on any side. What do you think?

13. Independent Media: A Bulwark for Democracy - Current Affair for UPSC, IAS, Civil Services
and State PCS Examinations

Context

For a country that prides itself on the strength of its democracy, India’s record in upholding the
freedom of press has been consistently poor. Currently, India ranks an abysmal 138 out of 180 in the
Press Freedom Index — the position not having changed much for over a decade. Structural issues
have limited the Indian reporter for a long time.

Introduction

“The Fourth Estate”, “Watchdog in a democracy”, “Voice of the People”, “Pillar of a Democracy” are
some of the usual terms associated with the role of media in a working democracy. It plays a pivotal
role in influencing mindsets across the country, which makes it essential for us to ensure that we are
consuming information from the right channels.

Independent media operates free of any influence from both the government and the corporate
sector. Few defining aspects of Independent media can be enlisted as report news in-depth, without
opinions; Common interest stories and events; Provide the people with facts and facts alone; Data-
driven journalism, that is, use facts and verifiable data; Offer plurality in diversity in voices; Talk
about issues that would otherwise be swept under the rug.

When people get information from independent sources, they are encouraged to think critically and
form their own opinions, making independent media vital for any democracy. Independent media
channels function without external influence – this means that they can spread word accurately
about government policies and happenings, making them responsible for democratizing access to
information and mainstream development issues.

Research has shown that there is a clear link between freedom of independent media, low levels of
corruption and overall improved delivery of public services.
Factors Dwindling Independency of Media

It is undisputed that media has the most potent influence on public opinion. It is thus the
responsibility of the media to keep the citizens informed of the state of governance. As the Code of
Ethics and Broadcasting Standards of the News Broadcasters Association (NBA) also recognizes,
media is meant to expose the lapses in the government and to give the public a sense of involvement
in the process of governance. But there are many issues which vitiates against this role of media.
Some of them are:

Censorship Begins From Within

Insecurity has become an acute ailment afflicting media professionals. Most journalists starting from
editors are employed on contracts of three years or less, with an exit clause that permits them to
leave or be fired on a notice of between one and three months. As a result, journalists have lost the
courage to speak up or write about any issue that owners and managements do not want them to,
including the issue of their own unstable working conditions. A number of media houses have been
arbitrarily closing down editions or retrenching journalist and non-journalist staff while also going
against the Majithia Wage Board recommendations but there is little coverage in the media about it.

The unstable working environments dissuade many journalists from speaking up against the
management. The Working Journalists Act of 1955 lays down service conditions for journalists, but
newspaper managements refuse to follow them.

Balancing Freedom of Trade and Freedom of Speech

The concentration of media ownership has been a growing concern in the past few years, particularly
during the 2014 parliamentary elections when the increasing influence of media was perceived.
Shortly after the elections, the corporate giant Reliance took over managerial and editorial control of
Network 18, which runs a sizeable portion of news media in India, both English and regional,
sparking fear that the Indian media was moving towards the type of concentrated ownership. Before
this, in 2011, UTV Software Communication was acquired by the Walt Disney Company, leading to
the ownership of multiple English and Hindi language entertainment channels in India in a single
entity.

What does such concentration of media ownership mean for the freedom of speech and expression
in the country? Freedom of speech and Expression is embodied as a fundamental right under Article
19(1) (a) of the Constitution. However, this is subject to reasonable restrictions under certain
specified grounds under Article 19(2). The concentration of ownership of media implies that the
influence and power which result in distribution of news and culture among other forms of
expression and opinionbuilding in the country is now vested in only a handful of people—those who
own or control the media.

Freedom of speech and expression plays a pivotal role in opinion building and consequently political
configurations in a representative democracy. But what does this idea of freedom embody and what
kinds of claims are accounted for in the legal understanding of such freedom in India? Is the
prevention of concentration of media ownership one such claim for freedom of speech and
expression? At the other end, the freedom to trade becomes an obvious claim to consider when the
issue is that of ownership of media, since ownership is patently a concern of business and trade.
Who Controls the Indian Media?

The free press is expected to uphold society’s civil and political freedom; however, the distribution of
information in our country is neither free nor fair. Industrial houses have been investing in media
companies and indirectly gaining control over them. This reinforces the view that investors are
investing in the media for their access and proximity to power and authority and thereby also
indulging in lobbying, rent-seeking behaviour—as brought out during the telecom and coal allocation
scams— and even attempting to shape political and market information by influencing editorial
content.

The consequence of ‘Big Corporate’ strengthening its association with media network is a clear loss
of heterogeneity in the dissemination of information and opinions. Media plurality in a multicultural
country like India will diminish. In particular, the space for providing factual information as well as
expressing views that are not in favour of (or even against the interests of) India’s biggest corporate
conglomerate will shrink, not just in the traditional mainstream media (print, television and radio)
but in the new media (internet and mobile telephony).

For the Indian media, it is unquestionably the best of times and it is also, unfortunately, the worst of
times. We have never seen such a flowering of TV channels and such a spreading footprint of
newspaper titles, but the market is more consolidated than ever around the top few players. The
quality of what we offer to our public has never been better but that same public can see that the
ethical foundations of our actions have plummeted to new depths.

Where are the Legal Safeguards to Protect a Whistleblower?

A journalist is only as good as their source. Thus, maintaining their anonymity must be paramount.
India, however, has a patchy record when it comes to protecting whistleblowers.

The stunted development of source protection privilege law in India has meant that newsgatherers’
interactions with confidential sources are coloured by ambiguity. Despite two sets of
recommendations by the Law Commission of India, neither the government nor the judiciary has
displayed an inclination to directly address the issue. Courts have adopted an impressionistic and ad
hoc approach in deciding cases bearing upon source protection. The casualties of the quagmire are
newsgatherers, sources, the public and the spirit of a democratic nation.

Rising Issue of Paid News

According to Press Council of India (PCI), paid news is “any news or analysis appearing in any media
(print & electronic) for a price in cash or kind as consideration”. It refers to propaganda in favour of a
candidate masquerading as news reports or articles for a price in cash or kind as consideration. The
news is much like an advertisement, but without the ‘ad tag’.

This kind of news has been considered a serious malpractice since it deceives the citizens, not letting
them know that the news is, in fact an advertisement and affecting people’s rational thinking and
opinion. Such news play a significant role in influencing voting tendency of voters as the viewer does
not get a correct picture of the personality or performance of the candidate in whose favour or
against he decides to cast his vote. This destroys the very essence of the democracy.

Advent of Social Media Posing New Challenges

Social media has become an important channel for communication in the 21st century. It is a
platform for the people to interact with each other and present their opinions and convey their
thoughts via virtual communities and networks like Facebook, Twitter etc. The facts that 1.49 billion
people on average log onto Facebook daily; every second, on average, around 6,000 tweets are
tweeted on Twitter; and since its inception, over 40 billion photographs have been posted on
Instagram shows the prevalence and its impacting potential.

While it has provided the platform to communicate it is prone to be misused by elements which has
vested interest. The ‘Menace of Fake News’ is one such example of its misuse. Fake news is a huge
problem. We live in a kind of half-truth world, where people are using clever half-truths to create
narratives. We have seen the reports of at least a dozen people losing their lives because of
WhatsApp circulated news. We cannot allow a situation in India where news circulated on WhatsApp
can become lethal and fatal. We have incidents of fake news where many people from the
Northeastern states of our country living in Bangalore felt threatened and wanted to leave the city.

Fake news has now even slipped into traditional media outlets and is often circulated by prominent
individuals. This has contributed to the echo chamber phenomenon. People seek “informed”
opinions through filters only from people they trust and look for news that confirms their world view.
This results in people cultivating rigid opinions of issues that they would have probably been more
willing to discuss in the past.

Regulation of Media in India

The modern times have seen a huge breakthrough in the reach of media with the rise of new forms,
especially of social media. People now have access to information like never before with all news
updates from across the world at their fingertips. It thus becomes all the more necessary that the
media be responsible and provide credible information to its viewers while reporting.

Media in India is mostly selfregulated. The existing bodies for regulation of media such as the Press
Council of India(PCI) which is a statutory body and the News Broadcasting Standards Authority
(NBSA), a self-egulatory organization, issue standards which are more in the nature of guidelines.

The PCI was established under the PCI Act of 1978 for the purpose of preserving the freedom of the
press and of maintaining and improving the standards of newspapers and news agencies in India. The
PCI has the power to receive complaints of violation of the journalistic ethics, or professional
misconduct by an editor or journalist. The PCI is responsible for enquiring in to complaints received.
It may summon witnesses and take evidence under oath, demand copies of public records to be
submitted, even issue warnings and admonish the newspaper, news agency, editor or journalist.

The powers of the PCI are restricted in two ways.

1. The PCI has limited powers of enforcing the guidelines issued. It cannot penalize newspapers,
news agencies, editors and journalists for violation of the guidelines.

2. The PCI only overviews the functioning of press media. That is, it can enforce standards upon
newspapers, journals, magazines and other forms of print media. It does not have the power to
review the functioning of the electronic media like radio, television and internet media

Today news channels are governed by mechanisms of self-regulation. One such mechanism has been
created by the NBA. The NBA has devised a Code of Ethics to regulate television content. The NBSA,
of the NBA, is empowered to warn, admonish, censure, express disapproval and fine the broadcaster
a sum upto Rs. 1 lakh for violation of the Code. Another such organization is the Broadcast Editors’
Association. The Advertising Standards Council of India has also drawn up guidelines on content of
advertisements. These groups govern through agreements and do not have any statutory powers.
Conclusion

The term “media freedom” is often used alongside, or as an alternative to, the terms “freedom of
speech” or “freedom of expression”, but the protection of media freedom takes a special position
due to the media’s role as a “public watchdog” as well as its function to disseminate information and
ideas, thus guaranteeing the right of the public to receive this information.

Freedom of expression and media freedom are essential foundations for open and democratic
societies. The freedom to express one’s ideas and form an opinion is an important prerequisite for
political processes to function in a democratic way. At a national level, freedom of expression is
necessary for good government and, therefore, for economic and social progress. At an individual
level, freedom of expression is vital to the development, dignity and fulfillment of every person.
Without a broad guarantee of the right to freedom of expression, protected by independent courts,
there is no democracy and no free country.

India is at the cusp of both economic and social change and it is vital that we, as citizens, remain
informed and aware of the happenings in the country. We need to think critically about events and
engage with others who are doing the same. We can begin by paying attention to the source of the
information we are consuming. When we consume independent media, we are broadening their
circulation and giving them a platform. A platform, that is vital towards sustainable, good
governance.

General Studies Paper- II

• Topic: Important aspects of governance, transparency and accountability, e-

governanceapplications, models, successes, limitations and potential; citizens charters,
transparency & accountability and institutional and other measures.

14. Triple Talaq

Why in News?

Several petitions have been listed in the Supreme Court challenging the constitutional validity of the
practice of polygamy and Nikah Halala allowed by Muslim Personal Law.

▪ A five-judge Constitution Bench has issued notices to the National Human Rights
Commission (NHRC), the National Commission of Women (NCW) and the National
Commission of Minorities.

▪ Earlier, the SC had stated the practice of divorce in Muslims through 'Talaq-e-Hasan' is not
similar to triple talaq and the women also have an option of 'Khula'.

What are the Arguments of the Petitioners?

▪ Demand and Ground:

o The petitioners have demanded a ban on Polygamy and Nikah-Halala saying it

renders Muslim wives extremely insecure, vulnerable and infringes their
fundamental rights.
 o They have also urged to declare Section 2 of the Muslim Personal Law (Shariat)
Application Act unconstitutional on grounds of violation of Articles 14 (right to
equality), 15 (discrimination on ground of religion) and 21 (right to life).

▪ Arguments against the Petition:

o The Constitution does not touch upon the personal laws and therefore the SC
cannot examine the question of constitutional validity of the practices.

o They contend that even the apex court and various High Courts have on earlier
occasions refused to interfere with practices sanctioned by personal law, an
argument they advanced even in the triple talaq challenge matter too which the SC
has already rejected.

What do we Know about Muslim Personal Law on Marriage?

▪ According to Sharia or the Muslim personal law, men are allowed to practice polygamy that
is, they can have more than one wife at the same time, up to a total of four.

▪ 'Nikah halala' is a process in which a Muslim woman has to marry another person and get
divorced from him before being allowed to marry her divorcee husband again.

▪ A Muslim man can divorce his wife by uttering Talaq once for three months. This practice is
called Talaq-e-Hasan.

o "Triple talaq" allows a husband to divorce his wife by repeating the word "talaq"
(divorce) three times in any form, including email or text message.

▪ In Islam, talaq and khula are two terms for divorce for men and women respectively. A man
can part ways through 'talaq' while a woman can separate with her husband through 'Khula'.

In what ways was Muslim Law Applied in India?

▪ The Muslim Personal Law (Shariat) Application Act was passed in 1937 with the aim to
formulate an Islamic law code for Indian Muslims.

▪ The British who were at this point in time governing India, were trying to ensure that Indians
were ruled according to their own cultural norms.

▪ When it came to distinguishing between laws made for the Hindus and those for the
Muslims, they laid out the statement that “clear proof of usage will outweigh the written
text of the law” in the case of Hindus. For the Muslims on the other hand, the writings in the
Quran would be of foremost importance.

▪ Since 1937 therefore, the Shariat Application Act mandates aspects of Muslim social
life such as marriage, divorce, inheritance and family relations. The Act lays out that in
matters of personal dispute the state shall not interfere.

What are the Personal Laws of Other Religions?

▪ The Hindu Succession Act of 1956 which lays out guidelines for property inheritance among
Hindus, Buddhists, Jains and Sikhs.

▪ The Parsi Marriage and Divorce Act of 1936 lays out rules to be followed by the Parsis
according to their religious traditions.
 ▪ The Hindu Marriage Act of 1955 had codified laws related to marriage among Hindus.

Is the Shariat Application Act in India Unchangeable?

▪ The applicability of the Shariat Act has been controversial over the years. There have been
previous instances when the issue of protection of women’s rights as part of the broader
fundamental rights came into conflict with religious rights.

▪ The most well-known among these is the Shah Bano case.

o In 1985, 62-year-old Shah Bano, filed a lawsuit seeking alimony from her former
husband.

▪ The Supreme Court, in this case, had held up her right to alimony, but the judgment was
vehemently opposed by the Islamic community who considered it to be going against the
written rules in the Quran. The case triggered a controversy regarding the extent to which
courts can interfere with personal/religious laws.

▪ The Shariat Application Act in India protects the application of Islamic laws in personal legal
relationships, but the Act does not define the laws.

o It clearly states that in matters of personal disputes, the State shall not interfere and
a religious authority would pass a declaration based on his interpretations of the
Quran and the Hadith.

▪ Personal law does not fall within the definition of ‘laws’ under Article 13 of the
Constitution. The validity of a personal law cannot be challenged on the basis
of fundamental rights enshrined in the Constitution.

Way Forward

▪ The government and society will have to work hard to build trust, but more importantly,
make common cause with social reformers rather than religious conservatives.

▪ Rather than an omnibus approach, the government could bring separate aspects such as
marriage, adoption, succession and maintenance into a Uniform Civil Code (UCC) in stages.

▪ Need of the hour is the codification of all personal laws so that prejudices and stereotypes in
every one of them would come to light and can be tested on the anvil of fundamental rights
of the Constitution.

UPSC Civil Services Examination, Previous Year Questions (PYQs)

Prelims

Q. Which Article of the Constitution of India safeguards one’s right to marry the person of one’s
choice? (2019)

(a) Article 19
(b) Article 21
(c) Article 25
(d) Article 29

Ans: (b)

Exp:
 ▪ The right to marry is a component of the right to life under Article 21 of the Constitution of
India which states that “No person shall be deprived of his life and personal liberty except
according to the procedure established by law”.

▪ In Lata Singh v. State of Uttar Pradesh 2006, the Supreme Court viewed the right to marry as
a component of the right to life under Article 21 of Indian Constitution.

▪ Therefore, option (b) is the correct answer.

Mains

Q. Customs and traditions suppress reason leading to obscurantism. Do you agree? (2020)

Indian Society

15. Regionalism In India

For Prelims: Meaning of Regionalism, State Reogranisation Act, Northeast Insurgency, Separatism,
Secession, J&K Reorganisation Act, Bodoland, Regionalism v/s Nationalism

For Mains: Regional Movements in India, Causes and Impacts of Regionalism, Regionalism and
Cultural Assertiveness

What is Regionalism?

▪ Regionalism is the expression of a common sense of identity and purpose by people within
a specific geographical region, united by its unique language, culture etc.

o In a positive sense, it encourages people to develop a sense of brotherhood and

oneness which seeks to protect the interests of a particular region and promotes the
welfare and development of the state and its people.

o In the negative sense, it implies excessive attachment to one’s region which is

a great threat to the unity and integrity of the country.

▪ In the Indian context generally, the term 'regionalism' has been used in the negative sense.

What is the History of Regional Movements in India?

▪ Origin in Colonial Era:

o The roots of regional consciousness in India can be found in colonial

policies, differential attitudes and treatment by the British towards princely states
and those of the presidencies developed regionalist tendencies among them.

o British exploitative economic policies completely neglected some regions, giving

way to economic disparities and regional imbalances.

▪ Movements in Southern India:

 o The history of regional movements in India can be traced back to the 1940s Dravida
Movement or the Non-Brahmin movement that started in the present day Tamil
Nadu.

• Later, the movement resulted in the demand of a separate and independent

Tamil state.

o This triggered the demand for a separate state in the Andhra region.

• In the 1950s and 60s, India witnessed mass (and violent) mobilisation for
the demands of statehood.

• Potti Sri Ramulu spearheaded the revolt for the separate state of Andhra in
1954. His eventual death triggered the wave of political regionalism in India.

▪ Establishment of States Reorganisation Committee:

o Revolts for separate states all across India resulted in the formation of the States
Reorganisation Committee (headed by Faisal Ali).

• It recommended reorganisation of Indian states on linguistic lines,

thus reinforcing the regionalist tendencies.

o With the enactment of the States Reorganisation Act, 1956, linguistic states became
a reality.

▪ Insurgencies in North East India:

o During the 1970s and 80s, the tribal insurgencies for separation and statehood in
the northeastern region of India intensified and the Union government passed
the North-eastern States Reorganisation Act, 1971.

• It declared the UTs of Manipur and Tripura and the Sub-State of Meghalaya
as states.

• Mizoram and Arunachal Pradesh (then Tribal Districts) became Union

Territories and were later declared as states in 1986.

▪ Major Changes in the 21st Century: The decade of 2000s, witnessed vigorous movements for
the creation of separate states due to a rising sense of regional deprivation.

o It resulted in the formation of the three new states – Chhattisgarh out of Madhya
Pradesh, Jharkhand out of Bihar and Uttarakhand out of Uttar Pradesh.

o In 2014, the state of Telangana was created by the division of Andhra Pradesh.

Note

▪ More recently, although not on a linguistic basis, the state of Jammu and Kashmir
was bifurcated into two Union Territories - J&K and Ladakh via the Jammu and Kashmir
Reorganisation Act, 2019.

▪ At present, India has 28 states and 8 UTs.

What Different Types of Regional Movements have Occurred in India?

 ▪ Secessionism: It is a form of regionalism that involves militant and fundamentalist groups
advocating a separation from India on the basis of ethnicity or any other factor.

o Isac Muivah’s National Socialist Council of Nagaland (NSCN-IM), the Islamic

fundamentalist groups in J&K, United Liberation Front of Asom (ULFA) in Assam are
examples of such an extreme dimension of regionalism.

▪ Separatism: It is a demand for separate statehood within the Indian Union.

o Many times, linguistic or ethnic minorities within the states come

together and unite against the majority community in that state.

• Formation of Uttarakhand, Jharkhand, Chhattisgarh, and Telangana are

examples of Separatism.

o Other similar demands that have been in news include -

• Creation of Bodoland for the Bodo-speakers in Assam

• Gorkhaland for ethnic Gorkha (Nepali) people in West Bengal

• A Bundelkhand state (covering part of Madhya Pradesh and part of Uttar

Pradesh) for promoting the development of the region.

▪ Demand for Full Statehood: The union territories have been forwarding such demands like
the NCT of Delhi.

o Most of such demands have already been accepted. In 1971, Himachal Pradesh got
the status of a full state and thereafter Manipur, Tripura, Mizoram, Arunachal
Pradesh and Sikkim got full statehoods.

▪ Demand for Autonomy: Since the 1960's, with the emergence of regional parties, the
demand for state autonomy has been gaining more and more strength due to the central
political interference.

o Several parties in states like Tamil Nadu, Punjab, Andhra Pradesh and West Bengal
have been continuously demanding a larger share of powers for the states.

▪ Demand for Regional Autonomy within a State: In some of the states, people belonging to
various regions have been demanding recognition of their regional identities.

o The genesis of such demands lies in the regional imbalances resulting from
inefficient planning.

o For instance, in the erstwhile state of J&K, there were demands by Ladakhis for a
regional status.

What are the Causes of Growing Regionalism?

▪ Historical and geographical isolation, insider-outsider complex that nurturers nativism and
son-of-the-soil ideology

▪ Uneven development, continuous neglect of a region and internal colonialism,

despite being rich in natural resources some regions remain economically underdeveloped.
 ▪ Ill-conceived top-down approach for development or survival of one region at the cost of
the other region.

▪ Imposition of an ideology that might be in conflict with the ideology that people of a
particular have been possessing for a long time.

▪ Linguistic aspirations and expression of ethnicity have long remained a formidable basis of
regionalism.

What can be the Impacts of Regionalism on Indian Polity?

▪ Positive Impacts:

o Positive regionalism results in the rise of regional parties which is advantageous

from the perspective of democracy.

• The people of a region are more likely to put their faith in a person who is a
native to their region or a party that is restricted to their region
thus preventing the monopolisation of one single political party.

• Also, the son-of-the-soil is more likely to empathise with the native

people and address their concerns as his own.

o Regionalism often attracts the focus of policymakers on the underlying regional

issues. It helps resolve the issues too large for any one unit of government to tackle
alone.

• A broader regional lens allows better planning - better connected transit,

more efficient infrastructure and better delivery of goods and services.

o Positive regionalism promotes a sense of pride in connecting to one’s roots and

culture.

• It has been noticed that often regional movements have helped the art and
culture of many neglected regions to flourish by increasing their exposure
through local emphasis.

▪ Negative Impacts:

o Regional movements often result in violent agitations, disturbs the law and order
situation and has negative implications on the economy of the state as well as the
nation.

• Regionalism can become a shield for militancy and extremism to create an

internal security threat.

o Regionalism sometimes undercuts the national interest by being a hurdle in

international diplomacy.

• The disagreement of political leadership in West Bengal with the central

government over the Land Boundary Agreement and Teesta River Water
sharing treaty with Bangladesh resulted in increased tensions between the
two nations.
 o Parochial regionalism poses a threat to the sovereignty of the nation. Regionalism
beyond a point can lead to secessionism, such as strong regionalism in Punjab
ultimately resulted in the growth of Khalistani terrorism.

o Regionalist tendencies often stir inter-state hostility as its spillover effect.

• There have been instances of anti-migrant feelings among the states that
are more job-opportune such as Maharashtra.

• Employment and residence of non-Maharashtrian people in the state has

often been opposed by the regional leaders of the state.

o Regionalism often promotes Vote- Bank politics, thereby weakening national

integration.

• Regionalism threatens the time-tested fabric of 'Unity in Diversity', if

promoted in an ultra-manner.

How is Regionalism different from Nationalism?

Nationalism Regionalism

▪ Nationalism is a sense of ▪ When people begin identifying

belonging to one nation, a feeling more strongly with their region
one shares with all the citizens of than with their nation, it is
the country regardless of their alleged that nationalism is
caste, creed, culture, religion or undercut by a sense of
region. regionalism.

▪ A nation tries to establish ▪ Regionalism glorifies the heritage

harmony between all its citizens of only one particular region and
by uniting them through a of one culture.
constitution, and national
▪ This may lead to the formation of
symbols.
multiple communities within one
▪ This association with a nation is nation.
the primary mode of
identification for a person and
every citizen takes pride in being
its citizen.

Way Forward

▪ Unity in Diversity ethos needs to be preserved for the pluralistic character of the Indian
nation state. The accommodation of multiple aspirations of a diverse population is necessary.

o There is a need to increase the level of social expenditure by the states on

education, health, and sanitation which are the core for human resource
development.
 ▪ Formation of the NITI Aayog has been a positive step to enhance cooperative federalism by
fostering the involvement of the State Governments of India in the economic policy-making
process using a bottom-up approach.

o While a number of steps such as the launch of centrally sponsored schemes,

incentives to private players for development in backward states have been taken by
the government for inclusive development, there is a greater need for their effective
implementation.

▪ Introducing a system of national education that would help people to overcome regional
feelings and develop an attachment towards the nation can act as a long-term solution to
the problem of sub-nationalism.

o National unity is not impaired if the people of a region have genuine pride in their
language and culture.

o Therefore, in principle, regionalism need not be regarded as an unhealthy or anti-

national phenomenon, unless it takes a militant, aggressive turn to encourage the
growth of secessionist tendencies.

UPSC Civil Services Examination, Previous Year Questions (PYQs)

Mains

Q. Do you agree that regionalism in India appears to be a consequence of rising cultural

assertiveness? Argue. (2020)

Q. What is the basis of regionalism? Is it that unequal distribution of benefits of development on

regional basis eventually promotes regionalism? Substantiate your answer. (2020)

Q. Growing feeling of regionalism is an important factor in the generation of demand for a separate
state. Discuss. (2013)