Pardoning Power of the President

Why in News?

Recently, a claim made by the Centre that the President had "exclusive powers" to decide whether to pardon Rajiv Gandhi assassination convict drew criticism from the Supreme Court before it reserved the case for judgment.

What is Pardoning Power?

• President:
  • About:
    • Under Article 72 of the Constitution, the President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence where the sentence is a sentence of death.
  • Limitation:
    • The President cannot exercise his power of pardon independent of the government.
    • In several cases, the Supreme Court has ruled that the President has to act on the advice of the Council of Ministers while deciding mercy pleas.
      • These include Maru Ram vs Union of India in 1980, and Dhananjoy Chatterjee vs State of West Bengal in 1994.
  • Procedure:
    • Rashtrapati Bhawan forwards the mercy plea to the Home Ministry, seeking the Cabinet’s advice.
    • The Ministry in turn forwards this to the concerned state government; based on the reply, it formulates its advice on behalf of the Council of Ministers.
  • Reconsideration:
    • Although the President is bound by the Cabinet’s advice, Article74 (1) empowers him to return it for reconsideration once. If the Council of Ministers decides against any change, the President has no option but to accept it.
  • Governor:
    • Under Article 161, the Governor in India too has pardoning powers.

What is the Difference Between Pardoning Powers of President and Governor?

• The scope of the pardoning power of the President under Article 72 is wider than the pardoning power of the Governor under Article 161 which differs in the following two ways:
  • Court Martial: The power of the President to grant pardon extends in cases where the punishment or sentence is by a Court Martial but Article 161 does not provide any such power to the Governor.
  • Death sentence: The President can grant pardon in all cases where the sentence given is the sentence of death but the pardoning power of the Governor does not extend to death sentence cases.

Source:TH

Collegium System for the Appointment of Judges

Why in News?

The Supreme Court collegium has made recommendations to five new Chief Justices of high courts.

What is a Collegium System and How Did It Evolve?

• It is the system of appointment and transfer of judges that has evolved through judgments of the Supreme Court (SC), and not by an Act of Parliament or by a provision of the Constitution.
• Evolution of the System:
  • First Judges Case (1981):
    • It declared that the “primacy” of the CJI’s (Chief Justice of India) recommendation on judicial appointments and transfers can be refused for “cogent reasons.”
    • The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.
  • Second Judges Case (1993):
    • SC introduced the Collegium system, holding that “consultation” really meant “concurrence”.
    • It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC.
  • Third Judges Case (1998):
    • SC on the President's reference (Article 143) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

Who Heads the Collegium System?

• The SC collegium is headed by the CJI (Chief Justice of India) and comprises four other senior most judges of the court.
• Judges of the higher judiciary are appointed only through the collegium system and the government has a role only after names have been decided by the collegium.

What are the Procedures for Judicial Appointments?

• For CJI:
  • The President of India appoints the CJI and the other SC judges.
  • As far as the CJI is concerned, the outgoing CJI recommends his successor.
  • In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
• For SC Judges:
  • For other judges of the SC, the proposal is initiated by the CJI.
  • The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
  • The consultees must record their opinions in writing and it should form part of the file.
  • The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.
• For Chief Justice of High Courts:
  • The Chief Justice of the High Court is appointed as per the policy of having Chief Justices from outside the respective States.
  • The Collegium takes the call on the elevation.
  • High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
  • The proposal, however, is initiated by the outgoing Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
  • The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.

What is Critical about the Collegium System?

• Opaqueness and a lack of transparency.
• Scope for nepotism.
• Embroilment in public controversies.
• Overlooks several talented junior judges and advocates.

What were Attempts to reform the Appointment System?

• The attempt made to replace it by a ‘National Judicial Appointments Commission’ (through Ninety-ninth Amendment Act, 2014) was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.

Way Forward

• Filling up of vacancies is a continuous and collaborative process involving the executive and the judiciary, and there cannot be a time frame for it. However, it is time to think of a permanent, independent body to institutionalise the process with adequate safeguards to preserve the judiciary’s independence guaranteeing judicial primacy but not judicial exclusivity.
• It should ensure independence, reflect diversity, demonstrate professional competence and integrity.

Source: IE

Local Governments

Why in News?

Recently, the Supreme Court declared that State Election Commissions across the country cannot skip their constitutional obligation to conduct polls to Local Bodies every five years.

• Election commissions cannot reel out grounds like ongoing delimitation or formation of new wards to delay elections where it was due or even overdue.
• The court found that besides a "staggering" 23,000 rural local bodies, polls had not been held in 321 urban local bodies in Madhya Pradesh since 2019-2020.

What is Local Government?

• About:
  • Local Self Government is the management of local affairs by such local bodies who have been elected by the local people.
  • The local self-Government includes both rural and urban government.
  • It is the third level of the government.
  • There are 2 types of local government in operation – panchayatas in rural areas and Municipalities in urban areas.
• Rural Local Governments:
  • Panchayati Raj Institution (PRI) is a system of rural local self-government in India.
  • PRI was constitutionalized through the 73^rd Constitutional Amendment Act, 1992 to build democracy at the grass roots level and was entrusted with the task of rural development in the country.
    • This act has added a new Part-IX to the Constitution of India. This part is entitled as ‘The Panchayats’ and consists of provisions from Articles 243 to 243 O.
    • In addition, the act has also added a new Eleventh Schedule to the Constitution. This schedule contains 29 functional items of the panchayats. It deals with Article 243-G.
  • In its present form and structure PRI has completed 30 years of existence. However, a lot remains to be done in order to further decentralization and strengthen democracy at the grass root level.
• Urban Local Governments:
  • Urban Local Governments were established with the purpose of democratic decentralisation.
  • There are eight types of urban local governments in India - Municipal Corporation, Municipality, Notified Area Committee, Town Area Committee, Cantonment Board, township, port trust, special purpose agency.
  • At the Central level the subject of 'urban local government' is dealt with by the following three Ministries.
    • The Ministry of Urban Development was created as a separate ministry in 1985 (now Ministry of Housing and Urban Affairs).
    • Ministry of Defense in the case of cantonment boards.
    • Ministry of Home Affairs in the case of Union Territories.
  • The 74^th Amendment Act pertaining to urban local government was passed during the regime of P.V. Narsimha Rao's government in 1992. It came into force on 1^st June, 1993.
    • Added Part IX -A and consists of provisions from articles 243-P to 243-ZG.
    • Added 12th Schedule to the Constitution. It contains 18 functional items of Municipalities and deals with Article 243 W.

What are the Salient Features of 73^rd Constitutional Amendment?

• Compulsory Provisions:
  • Organisation of Gram Sabhas;
  • Creation of a three-tier Panchayati Raj Structure at the Zila, Block and Village levels;
  • Almost all posts, at all levels to be filled by direct elections;
  • Minimum age for contesting elections to the Panchayati Raj institutions be twenty one years;
  • The post of Chairman at the Zila and Block levels should be filled by indirect election;
  • There should be reservation of seats for Scheduled Castes/ Scheduled Tribes in Panchayats, in proportion to their population, and for women in Panchayats up to one-third seats;
  • State Election Commission to be set up in each State to conduct elections to Panchayati Raj institutions;
  • The tenure of Panchayati Raj institutions is five years, if dissolved earlier, fresh elections to be held within six months;
  • A State Finance Commission is set up in each State every five years.
• Voluntary:
  • Giving voting rights to members of the Central and State legislatures in these bodies;
  • Providing reservation for backward classes; and
  • The Panchayati Raj institutions should be given financial powers in relation to taxes, levy fees etc. and efforts shall be made to make Panchayats autonomous bodies.

What are the Salient Features of 74^th Amendment Act?

• Compulsory:
  • Constitution of nagar panchayats, municipal councils and municipal corporations in small, big and very big urban areas respectively;
  • Reservation of seats in urban local bodies for Scheduled Castes / Scheduled Tribes roughly in proportion to their population;
  • Reservation of seats for women up to one-third seats;
  • The State Election Commission, constituted in order to conduct elections in the Panchayati raj bodies (see 73rd Amendment) will also conduct elections to the urban local self- governing bodies;
  • The State Finance Commission, constituted to deal with financial affairs of the panchayati raj bodies also looks into the financial affairs of the local urban selfgoverning bodies;
  • Tenure of urban local self-governing bodies is fixed at five years and in case of earlier dissolution fresh elections are held within six months;
• Voluntary:
  • Giving voting rights to members of the Union and State Legislatures in these bodies;
  • Providing reservation for backward classes;
  • Giving financial powers in relation to taxes, duties, tolls and fees, etc;
  • Making the municipal bodies autonomous and devolution of powers to these bodies to perform some or all of the functions enumerated in the Twelfth Schedule added to the Constitution through this Act and/or to prepare plans for economic development.

Source: TH

Marital Rape

Why in News?

Recently, the Delhi High Court delivered a split verdict in a batch of petitions challenging the exception provided to marital rape in the Indian Penal Code (IPC).

• In case of a split verdict, the case is heard by a larger Bench.
• The larger Bench to which a split verdict goes can be a three-judge Bench of the High Court, or an appeal can be preferred before the Supreme Court.

What was the Case about?

• The court was hearing a clutch of four petitions challenging the constitutionality of the exception to Section 375.
  • The petitioners want the exception to be struck down in totality, on the grounds that this exception violates the fundamental rights of married women.
• While delivering the verdict, one of the judges struck down Exception 2 of the Indian Penal Code’s Section 375 but another judge upheld its validity.

What is the History of the Marital Rape Law in India?

• Domestic Violence Act, 2005:
  • It hints at marital rape by any form of sexual abuse in a live-in or marriage relationship.
    • However, it only provides for civil remedies. There is no way for marital rape victims in India to initiate criminal proceedings against their perpetrator.
• Delhi High Court:
  • The Delhi High Court has been hearing arguments in the case since 2017.
    • However, this is not the first time that the issue of marital rape has been raised in the country.
• Law Commission of India:
  • The need to remove this marital rape exception was rejected by the Law Commission of India in 2000, while considering several proposals to reform India's laws on sexual violence.
• Justice JS Verma Committee:
  • In 2012, the Justice JS Verma Committee was tasked with proposing amendments to India's rape laws.
    • While some of its recommendations helped shape the Criminal Law (Amendment) Act passed in 2013, some suggestions, including that on marital rape, were not acted on.
• Parliament:
  • The issue has been brought up in Parliament as well.
    • Upon being questioned in a Parliament session in 2015, the idea of criminalising marital rape was dismissed with the view that "marital rape cannot be applied in the country since marriage was treated as a sacrament or sacred in the Indian society".

How did the Exception on Marital Rape find its way into the IPC?

• British Colonial Rule:
  • The IPC was implemented in India during British colonial rule in 1860.
    • Under the first version of the rules, the marital rape exception was applicable to women over 10 years of age which was raised to 15 in 1940.
• 1847 Draft of Lord Macaulay:
  • In January 2022, it was argued by amicus curiae (friend of the court) that the IPC is based on the 1847 draft of Lord Macaulay, the chairman of the First Law Commission established in colonial-era India.
    • The exception in the draft decriminalised marital rape without any age limit.
  • The provision is an age-old idea that implies consent by married women and protects the conjugal rights of the husband.
  • The idea of implied consent comes from the Doctrine of Hale, given by Matthew Hale, the then British Chief Justice, in 1736.
    • It states that a husband cannot be guilty of rape, since “by their mutual matrimonial consent and contract the wife has given up herself in this kind to the husband”.
• Doctrine of Coverture:
  • According to the Doctrine of Coverture, a woman has no individual legal identity after marriage.
  • Notably, the Doctrine of Coverture found a mention during the hearing when the Supreme Court of India struck down adultery as a criminal offence in 2018.
  • It was held that Section 497, that classified adultery as a crime, is based on the Doctrine of Coverture.
  • This doctrine, although not recognised by the Constitution, holds that a woman loses her identity and legal rights with marriage, is violative of her fundamental rights.

What has been the Government Stand?

• The Centre initially defended the rape exception and later changed its stand and told the court that it was reviewing the law, and that “wider deliberations are required on the issue”.
• The Delhi government argued in favour of retaining the marital rape exception.
  • The government’s arguments spanned from protecting men from possible misuse of the law by wives, to protecting the institution of marriage.

How is Marital Rape Treated around the World?

• About:
  • According to Amnesty International data, 77 out of 185 (42%) countries criminalise marital rape through legislation.
  • In other countries, it is either not mentioned or is explicitly excluded from rape laws, both of which can lead to sexual violence.
  • The United Nations has urged countries to end marital rape by closing legal loopholes, saying that “the home is one of the most dangerous places for women”.
• Countries allow Marital Rape:
  • Ghana, India, Indonesia, Jordan, Lesotho, Nigeria, Oman, Singapore, Sri Lanka and Tanzania expressly allow marital rape of a woman or a girl by her husband.
• Countries which allow to File Complaints:
  • While 74 countries allow women to file complaints against their husbands, 34 out of 185 do not provide any such provisions. About a dozen countries allow rapists to avoid prosecution by marrying their victims.

What are the Issues with Marital Rape Exception?

• Against Basic Rights of Women:
  • This exception clause violates the women’s fundamental right to equality, freedom of speech and expression, and most of all the right to life and personal liberty.
    • It also denies the agency over their own bodies to women.
• Dismal State of Judicial System:
  • Some of the reasons for low rates of prosecution in the cases of marital rape in India include:
    • Low reporting of crimes due to societal conditioning and low legal awareness.
    • Inaccurate method of collection of National Crime Records Bureau (NCRB) data.
    • Out of court settlements due to the lengthy process of justice/lack of admissible proof.

Way Forward

• Indian law now affords husbands and wives separate and independent legal identities, and much jurisprudence in the modern era is explicitly concerned with the protection of women.
• Therefore, it is high time that the legislature should take cognisance of this legal infirmity and bring marital rape within the purview of rape laws by eliminating Section 375 (Exception 2) of IPC.

Source: TH

Supreme Court stays HC proceedings in IT Rule cases

Why in News?

• The Supreme Court (SC) has stayed proceedings in various High Courts on petitions challenging the efficacy of the regulatory frameworks for social media and Over-The-Top (OTT) platforms.
• These regulatory frameworks are established by the Information Technology Rules 2021 and the Cable Television Networks (Amendment) Rules 2021.
• This comes after the central government requested the SC to transfer cases challenging the IT Rules from various High Courts to the SC for an authoritative ruling.
• The petitions before the various HCs claimed that the rules “curtail and restrict” the freedom of press in India.

What are the Cable Television Networks (Amendment) Rules, 2021?

• About:
  • These were notified by the Ministry of I&B, in accordance with the provisions of the Cable Television Network Act, 1995.
    • The Cable Television Network Act, 1995 aimed at regulating content and operation of cable networks. This Act regulates the ‘haphazard mushrooming of cable television networks’.
• Provisions:
  • It provides for a three-level grievance redressal mechanism — self-regulation by broadcasters, self-regulation by the self-regulating bodies of the broadcasters, and oversight by an Inter-Departmental Committee at the level of the Union government.
• Significance:
  • The amended rules will pave the way for a strong institutional system for redressing grievances.
  • It will place accountability and responsibility on the broadcasters and their self-regulating bodies.
  • This will bring the television’s self-regulatory mechanism at par with that being set-up for OTT players and digital news publishers, as envisaged in the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

What are the Information Technology Rules 2021?

• About:
  • They broadly deal with social media and Over-The-Top (OTT) platforms.
  • These rules have been framed in exercise of powers under section 87 (2) of the Information Technology (IT) Act, 2000 and in supersession of the earlier Information Technology (Intermediary Guidelines) Rules 2011.
• Provisions:
  • Significant Social Media Intermediaries (SSMIs):
    • Social media intermediaries, with registered users in India above a notified threshold, have been classified as SSMIs.
    • SSMIs are required to observe certain additional due diligence such as appointing certain personnel for compliance, enabling identification of the first originator of the information on its platform under certain conditions and deploying technology-based measures to identify certain types of content.
  • Regulating online publishers:
    • The Rules prescribe a framework for the regulation of content by online publishers of news and current affairs content, and curated audio-visual content.
  • Setting accountability of large social-media companies:
    • Large social-media companies will lose legal protection for the user content posted on their platforms and make them answerable to Indian civil and criminal laws.
  • Grievance redressal mechanism:
    • All intermediaries are required to provide a grievance redressal mechanism for resolving complaints from users or victims.
    • A three-tier grievance redressal mechanism with varying levels of self-regulation has been prescribed for publishers.
  • Significance:
    • The IT Rules 2021 aim to empower ordinary users of social media platforms and OTT platforms with a mechanism for redressal and timely resolution of their grievance with the help of a Grievance Redressal Officer (GRO) who should be a resident in India.
    • Special emphasis has been given on the protection of women and children from sexual offences, fake news and other misuse of the social media.
• Key Issues:
  • The Rules may be going beyond the powers delegated under the Act in certain cases, such as where they provide for the regulation of significant social media intermediaries and online publishers, and require certain intermediaries to identify the first originator of the information.
  • Grounds for restricting online content are overbroad and may affect freedom of speech.
  • There are no procedural safeguards for requests by law enforcement agencies for information under the possession of intermediaries.
  • Requiring messaging services to enable the identification of the first originator of information on its platform may adversely affect the privacy of individuals.

Source: HT

Global Annual to Decadal Climate Update Report

Why in News?

According to the global annual to decadal climate update report issued by the World Meteorological Organisation (WMO), India could be among the few regions globally where below normal temperatures have been predicted for the year 2022 and the next four years.

• The year 2022 will be cooler (compared to the 1991 – 2020 average) over India, along with Alaska and Canada.
• The annual update harnesses the expertise of internationally acclaimed climate scientists and the best prediction systems from leading climate centres around the world to produce actionable information for decision-makers.

What are the Major Findings?

• Temperature above 1.5°C: There is a 50:50 chance of the annual average global temperature temporarily reaching 1.5°C above the pre-industrial level for at least one of the next five years.
• Warmest Year: There is a 93% likelihood of at least one year between 2022-2026 becoming the warmest on record and dislodging 2016 from the top ranking.
  • The chance of the five-year average for 2022-2026 being higher than the last five years (2017-2021) is also 93%.
• La Nina and El Nino Events: Back-to-back La Niña events at the start and end of 2021 had a cooling effect on global temperatures, but this is only temporary and does not reverse the long-term global warming trend.
  • Any development of an El Niño event would immediately fuel temperatures, as it did in 2016, which is until now the warmest year on record.
• Precipitation Patterns: Predicted precipitation patterns for the November to March 2022/23-2026/27 average, compared to the 1991-2020 average, suggest increased precipitation in the tropics and reduced precipitation in the subtropics, consistent with the patterns expected from climate warming.

What are the India Specific Findings?

• One of the primary reasons for the lowering of temperatures over India from next year is the possible increase in rainfall activity in this decade.
• As per the India Meteorological Department (IMD), the Indian monsoon will soon enter a positive period after remaining in a negative period since 1971.
  • Many parts of India will receive above-normal rainfall. This will keep temperatures low.
• The future trend suggests that the decadal mean value will be close to near normal from 2021 to 2030.
  • It will then turn positive, the decade 2031-2040 will be the beginning of a wet period.

What are the Concerns?

• According to the study, the world is getting measurably closer to temporarily reaching the lower target of the Paris Agreement on Climate Change.
  • The 1.5°C is probably an indicator of the point at which climate impacts will become increasingly harmful for people and indeed the entire planet.
• The Paris Agreement sets long-term goals to guide all nations to substantially reduce global greenhouse gas emissions to limit the global temperature increase in this century to 2 °C while pursuing efforts to limit the increase even further to 1.5 °C.
• For as long as people continue to emit greenhouse gases, temperatures will continue to rise. And alongside that, oceans will continue to become warmer and more acidic, sea ice and glaciers will continue to melt, sea level will continue to rise and our weather will become more extreme.
  • Arctic warming is disproportionately high and what happens in the Arctic will affect everyone.

Source: IE

National Technology Day

Why in News?

The Prime Minister expressed his “gratitude” towards the scientists and their “efforts” that led to the “successful Pokhran tests in 1998” on National Technology Day (11^th May).

What is National Technology Day?

• About:
  • The day, which was first observed on 11^th May, 1999, aims to commemorate the scientific and technological achievements of Indian scientists, engineers. The day was named by the former Prime Minister Atal Bihari Vajpayee.
  • Every year, the Technology Development Board of India (a statutory body under the Ministry of Science and Technology) celebrates the day by awarding individuals with the National Award for their contribution to science and technology in India.
  • The focus this year is ‘Integrated Approach in Science & Technology for Sustainable Future’.
• Significance:
  • It is the day India successfully tested nuclear bombs in Pokhran on 11^th May, 1998.
  • India successfully test-fired its Shakti-1 nuclear missile in operation called Pokhran-II, also codenamed as Operation Shakti.
  • The nuclear missile was tested at the Indian Army's Pokhran Test Range in Rajasthan. This was the second test which was conducted after Pokhran-I codenamed Operation Smiling Buddha, in May 1974.
  • On the same day, India performed a successful test firing of the Trishul Missile (surface to air short range missile) and had test flown the first indigenous aircraft – ‘Hansa – 3’.

Source: HT

Gallantry Awards

Why in News?

Recently, President conferred 13 Shaurya Chakras, including six posthumous, to the personnel of Armed Forces during Defence Investiture Ceremony (Phase-1).

• The President also conferred Param Vishisht Seva Medals, Uttam Yudh Seva Medals and Ati Vishisht Seva Medals for distinguished service of exceptional order.

What are the Gallantry Awards in India?

• Post-Independence, first three gallantry awards namely Param Vir Chakra, Maha Vir Chakra and Vir Chakra were instituted by the government of India on 26th January, 1950 which were deemed to have effect from 15th August,1947.
• Thereafter, other three gallantry awards — the Ashoka Chakra Class-I, the Ashoka Chakra Class-II and the Ashoka Chakra Class-III — were instituted in 1952, which were deemed to have effect from 15th August, 1947.
  • These awards were renamed as Ashoka Chakra, Kirti Chakra and Shaurya Chakra respectively in January 1967.
• Order of precedence of these awards is the Param Vir Chakra, the Ashoka Chakra, the Mahavir Chakra, the Kirti Chakra, the Vir Chakra and the Shaurya Chakra.

Who is Eligible for the Awards?

• All officers of all ranks of the Army, Navy and the Air Force or of any of the reserve forces, territorial army and any other lawfully constituted armed forces.
• In addition to the above-mentioned personnel, matrons, sisters, nurses, alongside the staff of the nursing services and other services pertaining to hospitals and nursing and civilians, both male and females, serving regularly or temporarily under the orders, directions or supervision of any of the above-mentioned forces.

What is Wartime Highest Gallantry Awards?

• Param Vir Chakra:
  • It is India’s highest military decoration awarded for displaying distinguished acts of valor during wartime whether on land, at sea or in the air.
• Maha Vir Chakra:
  • It is the second highest gallantry award for acts of conspicuous gallantry in the presence of the enemy whether on land, at sea or in the air.
• Vir Chakra:
  • It is the country's third-highest wartime gallantry award after Param Vir Chakra and Maha Vir Chakra.

What are Peacetime Highest Gallantry Awards?

• Ashoka Chakra:
  • It is the highest military award during peacetime for valor, courageous action or sacrifice.
  • It is awarded for most conspicuous bravery or some act of daring or pre-eminent act of valor or self-sacrifice otherwise than in the face of the enemy.
• Kirti Chakra:
  • It is the second highest peacetime gallantry award and is awarded for valor, courageous action or self-sacrifice away from the field of battle.
• Shaurya Chakra:
  • It is awarded to the personnel of the armed forces for instances of extraordinary gallantry.

Source: TH