Provisions of 97th Amendment Struck Down
(GS-II: Government Policies & Interventions: Judiciary)
Recently, the Supreme Court (SC) upheld a 2013 judgment of the Gujarat High Court and struck down certain provisions of the Constitution (97th Amendment) Act, 2011.
It gave a major boost for federalism as the 97th Amendment shrank the exclusive authority of States over its co-operative societies, a sector considered as a massive contributor to the economy.
Part IXB, introduced into the Constitution through the 97th Amendment, dictated the terms for running co-operative societies.
The provisions in the Amendment, passed by Parliament without getting them ratified by State legislatures as required by the Constitution.
It went to the extent of determining the number of directors a society should have or their length of tenure and even the necessary expertise required to become a member of the society.
Central Government’s Argument:
It justified that the government was injecting ‘professionalism’ and autonomy into the functioning of the societies.
Lack of accountability by the members has led to poor services and low productivity.
Even elections are not held on time. Co-operatives need to run on well-established democratic principles.
Exclusive Legislation of States:
The constitution has been described as quasi-federal in that, so far as legislative powers are concerned, though there is a tilt in favour of the Centre vis-à-vis the States given the federal supremacy principle.
Quasi-federalism means an intermediate form of state between a unitary state and a federation.
However, within their own sphere, the States have exclusive power to legislate on topics reserved exclusively to them.
Part IX B, which consists of Articles 243ZH to 243ZT, has “significantly and substantially impacted” State legislatures’ “exclusive legislative power” over its co-operative sector under Entry 32 of the State List.
The court pointed out how Article 243ZI makes it clear that a State may only make law on the incorporation, regulation and winding up of a society subject to the provisions of Part IXB of the 97th Amendment.
Not Ratified by the States:
It held that the 97th Constitutional Amendment required ratification by at least one-half of the state legislatures as per Article 368(2) of the Constitution, since it dealt with an entry which was an exclusive state subject (co-operative societies).
Under Article 368(2), Parliament can amend the Constitution by passing a Bill with a special majority.
Since such ratification was not done in the case of the 97th amendment, it was liable to be struck down.
Upheld the Validity of Provisions related to Multi State Cooperative Societies:
It did not strike down the portions of Part IXB of the Amendment concerning ‘Multi State Co-operative Societies (MSCS)’ due to the lack of ratification.
When it comes to MSCS with objects not confined to one State, the legislative power would be that of the Union of India which is contained in Entry 44 List I (Union List).
It is declared that Part IXB of the Constitution is operative only insofar as it concerns multi-State cooperative societies both within the various States and in the Union Territories.
Director of Inquiry for Lokpal
(GS-II: Quasi Judicial Bodies; Statutory Bodies)
Recently, in a RTI Reply, it has been revealed that the Centre is yet to appoint a director of inquiry, more than two years after the Lokpal came into being.
About the Director of Inquiry:
As per the Lokpal and Lokayuktas Act, 2013, there shall be a Director of Inquiry, not below the rank of Joint Secretary to the Central Government.
As per the provisions contained under Section 20 (1) (b) of the Lokpal and Lokayuktas Act, 2013, complaints in respect of public servants are referred by the Lokpal to the Central Vigilance Commission (CVC) for a preliminary inquiry.
The non-appointment of director of inquiry again reflects the lack of political will for strengthened Lokpal in India.
A Lokpal is an anti-corruption authority or ombudsman who represents the public interest.
India is a signatory to the United Nations Convention against Corruption.
The concept of an ombudsman was borrowed from Sweden.
The Lokpal, the apex body to inquire and investigate graft complaints against public functionaries, came into being with the appointment of its chairperson and members in March 2019.
The First Administrative Reforms Commission (ARC) of India (1966– 1970) recommended the setting up of two special authorities designated as ‘Lokpal’ and ‘Lokayukta’ for the redressal of citizens’ grievances.
The Lokpal is responsible for enquiring into corruption charges at the national level while the Lokayukta performs the same function at the state level.
The Lokpal has jurisdiction over all Members of Parliament and central government employees in cases of corruption.
Apart from this, Lokpal can also inquire into anti-graft complaints regarding any member of an institution which is wholly or partially financed by the central government or controlled by it.
Presently, Justice Pinaki Chandra Ghose is the chairperson of the Lokpal.
Lokpal is a multi-member body that consists of one chairperson and a maximum of 8 members.
Issues Regarding Lokpal:
Lokpal is not free from political influence as the appointing committee itself consists of members from political parties.
The selection committee for Lokpal is composed of the Prime Minister who is the Chairperson; Speaker of Lok Sabha, Leader of Opposition in Lok Sabha, Chief Justice of India or a Judge nominated by him/her and One eminent jurist.
The appointment of Lokpal can be manipulated in a way as there is no criterion to decide who is an ‘eminent jurist’ or ‘a person of integrity’.
The biggest lacunae is the exclusion of the judiciary from the ambit of the Lokpal.
The Lokpal is not given any constitutional backing and there is no adequate provision for appeal against the Lokpal.
The complaint against corruption cannot be registered after a period of seven years from the date on which the offence mentioned in such a complaint is alleged to have been committed.
National Security Act (NSA), 1980
(GS-III: Challenges to internal security through communication networks)
The Supreme Court has directed the release of Manipur-based activist Erendra Leichongbom, detained under the National Security Act for his social media posts allegedly on the efficacy of cow dung and urine as cures for COVID-19 in the context of the death of a BJP leader.
The court said his continued detention would be a violation of his fundamental right to life and the due process of law.
The court also expressed concern because the government was using preventive detention in cases where even ordinary penal sections did not apply.
About the National Security Act (NSA):
The NSA is a preventive detention law.
Preventive Detention involves the detainment (containment) of a person in order to keep him/her from committing future crimes and/or from escaping future prosecution.
Article 22 (3) (b) of the Constitution allows for preventive detention and restriction on personal liberty for reasons of state security and public order.
Article 22(4) states that:
No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless:
An Advisory Board reports sufficient cause for extended detention.
The 44th Amendment Act of 1978 has reduced the period of detention without obtaining the opinion of an advisory board from three to two months. However, this provision has not yet been brought into force, hence, the original period of three months still continues.
Period of Confinement:
The maximum period for which one may be detained is 12 months. But the term can be extended if the government finds fresh evidence.
A person can be held for 10 days without being told the charges against them. The person can appeal before a high court advisory board but will not be allowed a lawyer during the trial.
Concerns associated with the misuse of this law:
Article 22 (1) of the Indian Constitution says an arrested person cannot be denied the right to consult, and to be defended by, a legal practitioner of his choice.
According to Section 50 of the Criminal Procedure Code (CRPC), any person arrested has to be informed of the grounds of arrest and has the right to bail.
However, under National Security Act, none of these rights are available to the person detained. The government holds the right to conceal information which it considers to be against public interest to disclose.
Speedy trial a fundamental right
(GS-III: Polity; Fundamental Rights)
In the Bhima Koregaon caste violence case, highlighting the issue of undertrials, the Supreme Court has said that “speedy trial is a fundamental right”.
What’s the issue?
Charges are not framed in the case. Many witnesses are still being examined. They are languishing in jail without trial.
About the Constitutional Right to Speedy Trial:
The main aim of the Right to Speedy trial is to inculcate Justice in the society.
It was first mentioned in that landmark document of English law, the Magna Carta.
In India, it is covered under Article 21 which declares that “no person shall be deprived of his life or personal liberty except according to the procedure laid by law.”
Evolution of the right to speedy trial:
1978 Babu Singh v. State of UP: The court remarked, “Our justice system even in grave cases, suffers from slow motion syndrome which is lethal to ‘fair trial’ whatever the ultimate decision. Speedy justice is a component of social justice since the community, as a whole, is concerned in the criminal being condignly and finally punished within a reasonable time and the innocent being absolved from the inordinate ordeal of criminal proceedings.”
Hussainara Khatoon v. State of Bihar, 1979: It formed the basis of the concept of the Speedy Trial. It was held that where under trial prisoners have been in jail for duration longer than prescribed, if convicted, their detention in jail is totally unjustified and in violation to fundamental rights under article 21.
Katar Singh v. State of Punjab 1994: It was declared that the right to speedy trial is an essential part of fundamental right to life and liberty.
Factors For Pendency Of The Cases:
Some measures which could prevent Delay could be: