Indian Polity and Governance - 5 | Current Affairs & Hindu Analysis: Daily, Weekly & Monthly - UPSC PDF Download

Role of Governor

Recent developments in various Indian states highlight concerns over the interaction between Chief Ministers and Governors regarding the approval of bills. Chief Ministers are expressing worries about perceived delays in the Governors' response to bills presented for their approval.

• This scenario prompts significant inquiries about the operational dynamics of a democracy and the potential repercussions of impeding the legislative process.

What are Constitutional Provisions Related to the Governor?

• Article 153 mandates the presence of a Governor for each State, and one person may be appointed as Governor for multiple States. The President appoints the Governor through a warrant under his hand and seal, and the Governor holds office at the pleasure of the President (Article 155 and 156).
• Article 161 confers upon the Governor the authority to grant pardons, reprieves, etc. The Supreme Court clarified that the Governor's power to pardon a prisoner is exercised in consultation with the State government rather than independently.
• Article 163 establishes a council of ministers, headed by the Chief Minister, to aid and advise the Governor in exercising functions, with certain exceptions allowing for discretionary powers. These include the appointment of a chief minister in situations of no clear majority, during no-confidence motions, and in the event of constitutional machinery failure in the state (Article 356).
• Article 200 outlines the procedure for presenting a bill passed by the Legislative Assembly of a State to the Governor for assent. The Governor may assent, withhold assent, or reserve the bill for the President's consideration. The Governor can also return the bill with a message requesting reconsideration by the House or Houses. The absence of a time limit suggests that pending bills do not lapse upon the dissolution of the House (Purushothaman Nambudiri v State of Kerala). The Governor can refer a bill to the President if it infringes upon the powers of the High Court.
• Article 201 states that when a bill is reserved for the President's consideration, the President may assent to or withhold assent from the bill. The President can also direct the Governor to return the bill to the Legislature of the State for reconsideration.
• Article 361 grants the Governor complete immunity from court proceedings for any act performed in the exercise of their powers.

What is the SC’s Stance and Recommendations of Commissions regarding the Governor's Power to Withhold Assent to Bills?

• SC Stance: The Supreme Court’s judgement in Nabam Rebia and Bamang Felix vs Dy.Speaker clarified that the Governor's discretion under Article 200 is limited to deciding whether a bill should be reserved for the President's consideration.
  • The Court also underscored that Article 163(2) must be read in conjunction with Article 163(1), suggesting that only matters expressly permitting the Governor to act autonomously are beyond the purview of judicial challenge.
  • Therefore, withholding assent to a bill indefinitely is unconstitutional, and a Governor's action or inaction in this regard can be subject to judicial review.
• Punchhi Commission (2010): It recommended that it is necessary to prescribe a time limit within which the Governor should take the decision whether to grant assent or to reserve it for consideration of the President.
  • National Commission to Review the Working of the Constitution (NCRWC): It laid down a time-limit of four months within which the Governor should take a decision whether to grant assent or reserve it for the consideration of the President.
  • It had also suggested the removal of the power of Governor, as provided in Article 200, to withhold assent for a piece of legislation and reserve a Bill for the consideration of the President except in cases as stipulated in the Constitution.

Special And Local Laws (SLL)

Recently, numerous bills have been introduced to reform the substantive criminal law as codified in the Indian Penal Code (IPC), Code of Criminal Procedure (CrPC), and Indian Evidence Act (IEA), but there has been a significant oversight in addressing Special and Local Laws (SLLs).

What are Special and Local Laws (SLLs)?

Overview:

• SLLs are specifically crafted to tackle region-specific, cultural, or unique legal matters within a particular state or local area.
• They stand apart from the general laws and regulations delineated in the Indian Penal Code (IPC).
• SLLs delineate criminal activities framed by the state government to address specific issues.

Importance:

• SLLs form an integral part of India's Criminal Justice System, covering pivotal offenses and procedures. They hold immense relevance in the Indian Criminal Justice System.
• Approximately 39.9% of all cognizable offenses registered in 2021 fell under SLLs.
• In cognizable offenses, an officer can take cognizance of and arrest a suspect without seeking a court warrant if there is a "reason to believe" that the person has committed the offense and the arrest is deemed necessary on certain enumerated grounds.
• Within 24 hours of the arrest, the officer must have the detention ratified by a judicial magistrate.

What is the Need for Reforms in Special and Local Laws in India?

Ambiguous Definitions:

• Some SLLs, such as the Unlawful Activities (Prevention) Act, 1967 suffer from deficient, ambiguous, and vague definitions of offenses and terms like 'terrorist act,' 'unlawful activity,' and 'organized crime.'
• These ambiguities can lead to misuse and misinterpretation, affecting the due process of law.

Variability in legal process

• SLLs can result in different treatment for individuals or groups based on their geographical location, leading to disparities in access to justice and legal protection.
• The lack of legal consistency can create uncertainty for individuals and businesses, making it difficult to navigate legal rights and obligations.

Inherently Indiscreet:

• The absence of contemplative considerations can lead to inefficiencies and uncertainties.
• For example, the Protection of Children from Sexual Offenses Act, 2012, has been criticized for its application to consensual sexual activities between minors, raising concerns about criminalising such conduct.
• Supreme Court (SC) in the case of P. Mohanraj versus M/s Shah Brothers Ispat Ltd., 2021 referred to Section 138 of the Negotiable Instruments Act (NI Act), 1881 as a ‘civil sheep’ in a ‘criminal wolf’s’ clothing.
• Section 138 of the NI Act provides for criminal provision regarding a cheque bounced due to insufficiency of funds.

Undermining of Due Process:

• SLLs have led to the sabotage of due process values, exemplified by increased powers of search and seizure and admissibility of confessions recorded by police officers.
• It does not adequately safeguard the rights of the accused, creating concerns about fairness and the protection of individual liberties.
• The lack of robust safeguards can open the door to potential abuse of the legal process, affecting the accused's rights
• Restrictive Bail Provisions in SLLs make obtaining bail nearly impossible infringing on the rights of the accused.
• E.g: Under Section 43(D)(5) of the UAPA, the bail provisions are exceptionally stringent, making it nearly impossible for those accused under the UAPA to secure bail.

Conclusion

• SLLs criminalizing conduct should be integrated into the penal code as separate chapters. SLLs with distinct procedures for reporting, arrest, investigation, prosecution, trial, evidence, and bail must be included in the Code of Criminal Procedure (CrPC) or treated as exceptions.
• The current omission of SLL aspects in the ongoing reform process is a significant limitation, necessitating a second wave of reforms to rectify these deficiencies.

Right To Information (RTI)

A bench of the Supreme Court noted that political parties might "have a point" when expressing concerns that accountability under the Right to Information (RTI) could extend to the disclosure of internal decisions.

Background

• A batch of petitions were filed in the Supreme Court to include political parties as "public authorities" under the Right to Information Act, 2005.
• Several political parties, including the BJP and the Congress, are arraigned as respondents in this case.
• The Communist Party of India (Marxist) said it supported the cause of financial transparency of political parties in the area of financial matters.
• However, it was against parties being compelled to reveal confidential information like “which candidate was selected for what reasons and what discussions happened within the political party, etc”.
• The Supreme Court bench, headed by the Chief Justice of India, orally observed that political parties may "have a point" for not wanting to disclose the details of their candidate selection process.
• The Supreme Court has scheduled the case for a detailed hearing on August 1, 2023.

About the Right to Information Act, 2005:

• The Right to Information (RTI) is derived from the fundamental right of freedom of speech and expression as outlined in Article 19 of the Constitution.
• Without information on how the Government and Public Institutions operate, individuals cannot express any informed opinions.
• The primary objective of the Right to Information Act is to empower citizens, fostering transparency and accountability in the functioning of the Government.

The Act, along with its rules, establishes a framework for:

• Requisitioning information
• Setting a time frame for providing information
• Defining the method of providing information
• Specifying charges for application
• Outlining exemptions for information that will not be disclosed

Key provisions of the RTI Act include:

• Section 4 mandates public authorities to maintain records cataloged and indexed to facilitate the right to information.
• Section 6 allows individuals to make a written request to the Central or State Public Information Officer for specific information.
• Section 7 requires the Public Information Officer to provide information or reject the request within 30 days, citing reasons specified in Sections 8 and 9.
• Section 19 allows individuals to appeal if a decision is not received within 30 days or if they are aggrieved by the Public Information Officer's decision.
• Exemptions under the Act stipulate that the information sought must not be related to defense, national security, or personal details.
• Before the RTI Act, the disclosure of information in India was restricted by the Official Secrets Act and other special laws. The RTI Act relaxed many such restrictions in the country.

Who is covered under the RTI?

• The RTI Act, 2005 applies to the entire country.
• It covers all bodies constituted under the Constitution, any law, or any government notification. This includes NGOs that are owned, controlled, or substantially financed by the Government.
• Private bodies owned, controlled, or substantially financed by the Government are also directly covered.

Should Political Parties Come Under RTI Act?

Arguments in favour of bringing political parties under the RTI –

• Transparency in funding is an important issue to bring political parties under the purview of RTI.
• If the general public knows how much funding a political party receives and from whom, the trust in a political party will increase and democracy will be strengthened.
• Currently, under the Income Tax Act (1961), it is not mandatory for political parties to disclose a donation of less than Rs. 20,000.
• This can be misused by political parties, hence they need to come under the purview of RTI.
• The RTI Act covers not only to government bodies but also to some non-governmental organizations.
• Some non-governmental organizations are substantially financed and controlled by the government.
• The government gives many subsidies to political parties. They are also given tax exemptions. Thereby, they are financed by the Government.
• For example, Government gives political parties free airtime on state owned television, radio, Doordarshan.
• Political parties are also provided facilities for residential and official use by the Directorate of Estates.

Arguments against bringing political parties under the RTI –

• Each political party has its own internal governance system.
• Therefore, if a political party comes under the purview of RTI, these things can hamper their functioning and have a detrimental effect on the credibility of the political party.
• A political party is an independent body so they are not accountable to the people.
• Also, no political party is established by the Constitution or any other law, so it is not accountable to the people.
• If a political party comes under the purview of RTI, RTI will be misused by oppositions and RTI will be used to harass political parties with wrong intentions.

 Conclusion

• The declaration of political parties as public authority would promote transparency and encourage public debate.
• There are questions being raised on the functioning of political parties and the funds they receive.
• Political parties are an integral part of the democracy. Unless and until they are accountable to the public how can democracy succeed?
• Hence, there is a need to attain more transparency regarding the functioning of political parties.
• By bringing political parties in the public authority domain the confidence of the common man on democracy and the political system of the country would increase.
• Hence, political parties should be brought within the public authority domain.

Special Category Status (SCS)

• In a recent development, the Bihar Cabinet has approved a resolution urging the conferment of Special Category Status (SCS) upon Bihar.
• This request is prompted by the results of the "Bihar Caste-based Survey, 2022," indicating that approximately one-third of Bihar's population still resides in poverty.

What is Special Category Status?

Overview:

• Special Category Status (SCS) is a classification granted by the central government to aid the development of states facing geographical and socio-economic disadvantages.
• The Constitution does not explicitly provide for SCS; its classification originated from the recommendations of the 5th Finance Commission in 1969.
• The initial granting of this status occurred in 1969, encompassing Jammu and Kashmir, Assam, and Nagaland.
• Historically, the National Development Council of the former Planning Commission bestowed SCS for plan assistance.
• Currently, eleven states, including Assam, Nagaland, Himachal Pradesh, Manipur, Meghalaya, Sikkim, Tripura, Arunachal Pradesh, Mizoram, Uttarakhand, and Telangana, hold the special category state status.
• Telangana, as the latest addition to Indian states, received this status following its separation from Andhra Pradesh.
• It's important to note that SCS differs from special status, which confers enhanced legislative and political rights, while SCS pertains solely to economic and financial aspects.
• For example, Jammu and Kashmir had special status before the repeal of Article 370.

Parameters (Based on Gadgil Formula):

• Hilly Terrain
• Low Population Density and/or Sizeable Share of Tribal Population
• Strategic Location along Borders with Neighbouring Countries
• Economic and Infrastructure Backwardness
• Nonviable Nature of State Finances

Benefits:

• In the past, SCS states received around 30% of central assistance, determined by the Gadgil-Mukherjee formula.
• However, following the recommendations of the 14th and 15th Finance Commissions (FC) and the dissolution of the Planning Commission, this assistance to SCS states has been incorporated into an increased devolution of the divisible pool funds for all states (raised to 41% in the 15th FC from 32%).
• For Centrally-Sponsored Schemes, the central government covers 90% of the required funds for SCS states, as opposed to 60% or 75% for other states, with the remainder funded by the state governments.
• Unspent funds in a financial year do not lapse and are carried forward.
• Significant concessions are granted to these states in excise and customs duties, income tax, and corporate tax.
• Special Category states receive 30% of the Centre's Gross Budget.

Why is Bihar Demanding Special Category Status (SCS)?

Economic Disparities:

• Bihar faces significant economic challenges, including a lack of industrial development and limited investment opportunities.
• The bifurcation of the state resulted in the shifting of industries to Jharkhand, exacerbating the employment and economic growth issues in Bihar.

Natural Calamities:

• The state grapples with natural calamities like floods in the northern region and severe droughts in the southern part.
• These recurring disasters disrupt agricultural activities, affecting livelihoods and economic stability.

Lack of Infrastructure:

• Infrastructure, especially in terms of irrigation facilities and water supply, remains inadequate.
• The absence of sufficient resources for irrigation impacts agricultural productivity, a primary source of livelihood for a large portion of the population.

Poverty and Social Development:

• Bihar has a high poverty rate, with a significant number of families living below the poverty line.
• With a per-capita GDP of around Rs 54,000, Bihar has consistently been one of the poorest States. BIhar is home to around 94 lakh poor families and the granting of SCS will help the government get about RS 2.5 lakh crore required to fund various welfare measures over the next five years.

Funding for Development:

• Seeking SCS is also a means to secure substantial financial assistance from the central government, allowing Bihar to access funds required for development projects and addressing long-standing socio-economic challenges.

Does Bihar Fulfill Criteria for the Grant of SCS?

• Although Bihar meets most of the criteria for the grant of SCS, it does not fulfil the requirement of hilly terrain and geographically difficult areas, which is considered to be the primary reason for difficulty in infrastructural development.
• In 2013, the Raghuram Rajan Committee set up by the Centre, placed Bihar in the “least developed category” and suggested a new methodology based on a ‘multi -dimensional index’ for devolving funds instead of a SCS, which can be revisited to address the State’s socio-economic backwardness.

What are the Issues Associated with Special Category Status?

Allocation of Resources:

• The conferment of Special Category Status (SCS) involves providing additional financial aid to the designated state, posing a potential strain on the central government's resources. Balancing fund distribution among various states becomes crucial, and granting SCS may lead to imbalances or discontent among non-SCS states.

Reliance on Central Assistance:

• States receiving SCS often develop a heavy dependence on central assistance. This dependency has the potential to discourage initiatives for self-sufficiency and the pursuit of independent economic growth strategies.

Challenges in Implementation:

• Even after the grant of SCS, challenges may arise in effectively utilizing the allocated funds due to administrative inefficiencies, corruption, or inadequate planning. Ensuring that funds are used for their intended purposes becomes a significant challenge.

The Way Forward

• Reassess and refine the criteria for SCS eligibility to ensure fairness and transparency. Clearly articulate parameters based on socio-economic indicators, infrastructure development, and other relevant factors.
• Encourage states to formulate comprehensive development plans that prioritize sustainable growth, job creation, infrastructure development, and human capital enhancement. SCS should be part of a broader strategy for holistic development.
• Implement policies aimed at gradually reducing states' reliance on central assistance by promoting self-sufficiency and economic diversification. Encourage states to generate their revenue streams.

Aaina Dashboard For Cities

The AAINA Dashboard for Cities, introduced by the Ministry of Housing and Urban Affairs (MoHUA) on November 13, 2023, seeks to motivate Urban Local Bodies (ULBs) nationwide to voluntarily provide essential data using a user-friendly data entry form accessible on the portal www.aaina.gov.in.

Objectives

• City Benchmarking: The dashboard provides cities with a means to evaluate their performance concerning other cities. Rather than ranking Urban Local Bodies (ULBs), it acts as a comparative tool, offering cities insights into their positions compared to similar counterparts.
• Inspiration and Enhancement: The dashboard strives to inspire cities by highlighting potential areas for improvement. It serves as a motivational resource for ULBs to elevate their performance across various dimensions.
• Peer Learning: Facilitates peer learning among cities by fostering the exchange of best practices. Cities can glean insights from frontrunners and implement successful strategies tailored to their specific contexts.

Dashboard Structure

The AAINA Dashboard organizes data submitted by ULBs into five broad pillars:

• Political & Administrative Structure
• Finance
• Planning
• Citizen-Centric Governance
• Delivery of Basic Services

Data Submission

• ULBs submit data, including audited accounts and self-reported performance metrics, through the portal.
• A simple, easy-to-fill data entry form is provided for this purpose.
• ULBs have the flexibility to update the information as needed, ensuring the dashboard remains current.
• The dashboard is designed to be a permanent platform for ULB-related data and will be regularly updated.

Accessibility

• Once populated, the database of key performance metrics will be accessible to all stakeholders.
• The information will eventually be made public, promoting transparency and accountability.

Support Mechanism

• The Ministry, through Digital India Corporation, will offer handholding support to ULBs and states during the data submission process.

Conclusion

The AAINA Dashboard for Cities marks a substantial stride in establishing a comprehensive database of essential performance metrics for Urban Local Bodies (ULBs). With the committed collaboration of all stakeholders, this endeavor strives to promote transparency, accountability, and ongoing enhancements in urban governance.