Kerala Governor signs Lok Ayukta ordinance

(GS-II: Appointment to various Constitutional posts, powers, functions and responsibilities of various Constitutional Bodies)

In News:

The Kerala governor has signed the ordinance proposing amendments to the Kerala Lok Ayukta Act, 1999, that makes the agency’s orders not binding on the government.

Amendments to the Kerala Lok Ayukta Act, 1999:

The government can “either accept or reject the verdict of the Lokayukta, after giving an opportunity of being heard”.

Currently, under Section 14 of the Act, a public servant is required to vacate office if directed by the Lokayukta.

The amendments are being opposed for two reasons:

The changes are proposed through an ordinance and hence there was no proper discussions on the matter.

It violates the fundamental spirit of the central Lokpal and Lokayuktas Act, 2013.

For reference on Who is a Lokayukta? What is Lokayukta act, please go through this article.

Ordinance making power:

The ordinance making power is the most important legislative power of the President and the Governor. It has been vested in them to deal with unforeseen or urgent situations.

Article 123 of the Constitution grants the President certain law-making powers to promulgate ordinances during the recess of Parliament.

These ordinances have the same force and effect as an Act of Parliament but are in the nature of temporary laws.

Likewise, the Governor of a state can issue ordinances under Article 213 of the Constitution, when the state legislative assembly (or either of the two Houses in states with bicameral legislatures) is not in session.

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

How long will it be in force?

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

Concerns associated with the ordinance route:

Whereas an ordinance was originally conceived as an emergency provision, it was used fairly regularly. In the 1950s, central ordinances were issued at an average of 7.1 per year. The last couple of years has seen a spike, 16 in 2019 and 15 in 2020.

Repromulgation: A five-judge Constitution Bench of the Supreme Court, in 1986, ruled that repromulgation of ordinances was contrary to the Constitutional scheme.

Judicial Safeguards to avoid re-promulgation of ordinances:

The 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.

It was argued in DC Wadhwa vs. the State of Bihar (1987) 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.

The 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”.

Iran nuclear deal

(GS-II: Effect of policies and politics of developed and developing countries on India’s interests, Indian diaspora)

In News:

Western diplomats have set a deadline of later this month to revive the 2015 Iran nuclear deal.

The deal was dismantled in 2018 by President Donald Trump.

What’s the issue now?

American officials are concerned about Iran’s rapid nuclear escalation after the US abandoned the deal. Iran has already said that it is enriching uranium fuel in the country.

What are the demands by the US?

US has said that it will rejoin the agreement if Iran complies with the terms of the original deal, and if it addresses other issues related to alleged ballistic missile stockpiles and the proxy conflicts that it backs across the region.

About the Iran Nuclear Deal:

Also known as the Joint Comprehensive Plan of Action (JCPOA).

The JCPOA was the result of prolonged negotiations from 2013 and 2015 between Iran and P5+1 (China, France, Germany, Russia, the United Kingdom, the United States, and the European Union, or the EU).

Under the deal, Tehran agreed to significantly cut its stores of centrifuges, enriched uranium and heavy-water, all key components for nuclear weapons.

How has the Iran responded after withdrawal?

Trump pulled the U.S. out of the accord in 2018. Besides, he opted for a “maximum pressure” campaign by imposing sanctions and other tough actions.

Iran responded by intensifying its enrichment of uranium and building of centrifuges, while maintaining its insistence that its nuclear development was for civilian and not military purposes.

Again, In January 2020, following the drone strike on Islamic Revolutionary Guard Corps commander Gen. Qasem Soleiman, Iran announced that it would no longer observe the JCPOA’s restraints.

The collapse of the JCPOA drags Iran towards nuclear brinkmanship, like North Korea, which has created major geopolitical instability in the region and beyond.

Significance of the deal for India:

Removing sanctions may revive India’s interest in the Chabahar port, Bandar Abbas port, and other plans for regional connectivity.

This would further help India to neutralize the Chinese presence in Gwadar port, Pakistan.

Restoration of ties between the US and Iran will help India to procure cheap Iranian oil and aid in energy security.

Unlawful Activities (Prevention) Act

(GS-III: Role of external state and non-state actors in creating challenges to internal security)

In News:

The Supreme Court has pulled up the Tripura Police and the government for repeated notices under UAPA sent to journalists, activists, and people who tweeted the articles on alleged violence in the state.

Background:

Towards the end of October 2021, a mosque, some shops and houses belonging to the minority Muslim community in Tripura were allegedly vandalised. The communal violence was purportedly triggered by anti-Hindu violence in neighbouring Bangladesh.

About the Unlawful Activities (Prevention) Act:

Passed in 1967, the law aims at effective prevention of unlawful activities associations in India.

The Act assigns absolute power to the central government, by way of which if the Centre deems an activity as unlawful then it may, by way of an Official Gazette, declare it so.

It has death penalty and life imprisonment as highest punishments.

Key points:

Under UAPA, both Indian and foreign nationals can be charged.

It will be applicable to the offenders in the same manner, even if crime is committed on a foreign land, outside India.

Under the UAPA, the investigating agency can file a charge sheet in maximum 180 days after the arrests and the duration can be extended further after intimating the court.

As per amendments of 2019:

The Act empowers the Director General of National Investigation Agency (NIA) to grant approval of seizure or attachment of property when the case is investigated by the said agency.

The Act empowers the officers of the NIA, of the rank of Inspector or above, to investigate cases of terrorism in addition to those conducted by the DSP or ACP or above rank officer in the state.

It also included the provision of designating an individual as a terrorist.

Delhi High Court defines the contours of UAPA:

In June 2021, delivering a judgment defining the contours of the otherwise “vague” Section 15 of the Unlawful Activities (Prevention) Act, 1967, (UAPA), the Delhi High Court laid down some important principles upon the imposition of Section 15, 17 & 18 of the Act.

Sections 15, 17 and 18 of UAPA:

1. 15 engrafts the offence of ‘terrorist act’.
2. 17 lays-down the punishment for raising funds for committing a terrorist act.
3. 18 engrafts the offence of ‘punishment for conspiracy etc. to commit a terrorist act or any act preparatory to commit a terrorist act’.

Key observations made by the court:

“Terrorist Act” Should not be used lightly so as to trivialise them.

Terrorist activity is that which travels beyond the capacity of law enforcement agencies to deal with under ordinary penal law (Supreme Court’s decision in the case of Hitendra Vishnu Thakur).

Freedom of religion and attire

(GS-II: Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure)

In News:

Recently, six students were banned from entering a college in Karnataka’s Udupi district for wearing a hijab. The issue throws up legal questions on reading the freedom of religion and whether the right to wear a hijab is constitutionally protected or not.

How is religious freedom protected under the Constitution?

Article 25(1) of the Constitution guarantees the freedom of conscience and the right freely to profess, practise and propagate religion. It is a right that guarantees negative liberty — which means that the state shall ensure that there is no interference or obstacle to exercising this freedom.

Limitations: Like all fundamental rights, the state can restrict the right for grounds of public order, decency, morality, health and other state interests.

Observations made by the Supreme Court in this matter:

People have a right under the Constitution to profess, practise and propagate religion (Article 25).

Every person is the final judge of his/her choice of religion or who their life partner should be. Courts cannot sit in judgment of a person’s choice of religion or life partner.

Religious faith is a part of the fundamental right to privacy.

Shirur Mutt case in 1954: The doctrine of “essentiality” was invented by the Supreme Court. The court held that the term “religion” will cover all rituals and practices “integral” to a religion, and took upon itself the responsibility of determining the essential and non-essential practices of a religion.

What are the court’s rulings on Hijab?

In Amna Bint Basheer v Central Board of Secondary Education (2016), the Kerala High Court held that the practice of wearing a hijab constitutes an essential religious practise but did not quash the dress code prescribed by CBSE. It rather provided additional safeguards, such as examining students wearing full sleeves when needed.

In Fathima Tasneem v State of Kerala (2018), Kerala HC held that collective rights of an institution would be given primacy over the individual rights of the petitioner. The case involved two girls who wanted to wear the headscarf. The school refused to allow the headscarf. However, the court dismissed the appeal as students were no more in the rolls of the respondent-School.