Indian polity and constitution

Recently the Supreme Court  struck down the 99th constitutional amendment and held the view that NJAC (National Judicial Appointment Commission) is not a credible alternative to the Supreme Court’s collegium system of appointment of judges for the higher judiciary.

The court held that the primacy of judiciary in the appointment of judges was part of the basic structure of the Constitution and that the parliament, through NJAC act, violated this basic structure by giving executive and civil society a say in these appointments.

However this judgement faced criticism based on following arguments-

• The verdict upheld an extra-constitutional forum, created by the Supreme Court’s own members to serve its own ends, in the place of a system lawfully enacted by a popularly elected Parliament.
• According to critics, the judgement failed to adequately answer the fundamental question at the root of the controversy, i.e. how is judicial primacy in making appointments to the higher judiciary a part of our Constitution’s basic structure. Whereas the Constitution accords to the President the power to appoint judges with compulsorily consulting with certain persons.
• Critics say that the Supreme Court, in the second judges’ case, 1993, wrongly interpreted the word ‘consultation’ used in Articles 124 and 217, to mean concurrence. The court then held that the executive was bound by the advice of the CJI in making appointments to the higher judiciary.

Even the Supreme Court has admitted in the same NJAC judgement that all is not well within the opaque  collegium system of “ judges appointing judges” and called for further discussion on reform process of collegium system.

The Constitution envisages and puts a system in place to ensure the balance of power involving the executive, the legislature and the judiciary but not at the cost of opaqueness in appointment process. With evident loopholes in the collegium system, time has come for a review of the verdict by a larger bench.

Recently the debate over simultaneous holding of the election to Parliament and State legislature has been revived. The Election Commission has also supported the idea of holding simultaneous elections. “Simultaneous Elections” broadly means structuring the Indian election cycle in a manner that elections to Lok Sabha and State Assemblies are synchronized together.

Benefits of simultaneous election

• The 79^th Report of the Department related Parliamentary Committee has justified the simultaneous conduct of polls on several grounds, including a huge cut in expenditure incurred for conduct of separate elections every year.
• Frequent elections lead to imposition of Model Code of Conduct (MCC) over prolonged periods of time and puts on hold the entire development programme and activities of the Union and State Governments in the poll bound State. Simultaneous election will help in limiting amount of time in electioneering.
• Simultaneous elections would also reduce pressure on manpower and resource deployment necessary for conduct of elections.

Concerns regarding reducing the government’s accountability to the people

• Assembly elections are fought on local issues and parties and leaders are judged in the context of their work done in the state. Clubbing them with the general election could lead to a situation where the national narrative submerges the regional story and dilutes the accountability of state leadership.

Therefore, while the idea of simultaneous elections does hold merit, due consideration should be given to both its benedicts and demerits before a decision is taken.

Simultaneous elections are desirable provided they are juxtaposed with certain reforms that would require a prior political consensus to bring a constitutional amendment to curtail or raise term of some states to enable EC to synchronize poll schedule, raise necessary resources of EC such as EVMs, personnel, etc.

Pressure groups is an organization formed when people with common occupation, interest, aspirations or opinions come together in order to achieve a common objective.

Their influences on Indian political process are-

• They have taken the role as agencies of interest articulation, interest aggregation political communication, political socialization and public opinion.
• They have been the agent of democratic deepening by highlighting the interests of certain groups.
• Very often they filled the void that political parties missed, putting issues of corruption and environment to the forefront of public policy.
• In a huge and diverse democracy like India, pressure groups have ensured that no voice is left unheard.

Of late, informal unorganized groups have asserted more power in the political decision making process. Despite being unstructured and having limited access to financial resources, these groups have proven to be much more impactful than otherwise thought possible. The issue around which they are centered resonates and connects with people cutting across religions, castes, languages and gender – resulting in the group taking the shape of a movement. This was seen in the cases of:

• Nirbhaya movement which led to changes in the Vishakha guidelines, setting up of Justice Verma committee and also an amendment in the Juvenile Justice Act.
• India against corruption movement which led to the Lokpal Act.

Both of these movements were informal, not associated to any identities or entities – but were issue based, yet led to legislative action at the Centre.

Public Accounts Committee is considered the most important financial Committee of Parliament in the financial accountability process. It comprises of 22 members of parliament (15 members from Lok Sabha and 7 from Rajya Sabha).

It establishes the accountability of the government by:

• Examining the budgetary appropriations and accounts of the government and Reports of Comptroller and Auditor General (under article 151) on the execution of the projects and programmes by the various ministries.
  
• Examining the demand for excess grants before they are presented to the Parliament for regularisation.
  
• In scrutinising the appropriation accounts and the audit report of CAG on it, the Committee has to satisfy itself that:
  

• the money that has been disbursed was legally available for the applied service or purpose;
  
• the expenditure conforms to the authority that governs it; and
  
• every reappropriation has been made in accordance with the related rules.
  

The committee examines public expenditure not only from legal and formal point of view to discover technical irregularities but also from the point of view of economy, prudence, wisdom and propriety to bring out the cases of waste, loss, corruption, extravagance, inefficiency and nugatory expenses.

Demerits: PAC in India is not able to enforce the accountability of the government to the people in true sense because-

• Even if it brings out the irregularities in the public expenditure there are no mechanisms to enforce the corrective measures.
  
• It examines the expenditure which has already been done by the government.
  
• Its recommendations are only advisory in nature and are not binding on the ministry of the day.
  
• PAC has got no mandate to examine the policy in broader sense.
  

However PAC at times, through its criticism of the inefficient public expenditure of the government, creates a strong public opinion against the government. The incumbent government to remain in power tries to rectify the inefficiency in its public expenditure and policy making. Thus the committee helps in enforcing accountability of the executive to the people.

The Constitution (One Hundred and First Amendment) Act, 2016 provides for the introduction of Goods and Services Tax (GST) in India. GST is one of the biggest indirect tax reforms in India.

Salient Features of the Act

• It amalgamates a large number of Central and State taxes (like Central Excise Duty, Countervailing Duty, Service Tax, value added tax, octroi etc) into a single tax.
• It inserts a new Article 246A in the Constitution to give the central and state governments the concurrent power to make laws on the taxation of goods and services.
• Only the centre may levy and collect an integrated GST in the course of inter-state trade – to be divided between the centre and the states.
• It provides for the constitution of a GST Council to develop a harmonized national market of goods and services.
• It makes provision for compensation to states for revenue losses arising out of the implementation of the GST.

Cascading Effect of Taxes

GST follows a multi-stage collection mechanism in which tax is collected at every stage and the credit of tax paid at the previous stage is available as a set off at the next stage of transaction. This means that tax paid on inputs is deducted from the tax payable on the output produced (input tax credit). This is expected to mitigate the ill effects of cascading. However, the effectiveness of this will depend on the level of digital literacy of the traders and the efficient functioning of the GST Network (GSTN).

‘One Nation, One Tax and One Market’

GST aims to make India a common national market through:

• uniform tax rates and procedures, and
• removal of hurdles in inter-State transactions as only IGST will be applied on inter-State trade.

However, the efficaciousness of a uniform market is hindered by multiple tax slabs (0%, 5%, 12%, 18% and 28%), tax exemption to real estate, petroleum and alcohol, and exclusion of the informal or unorganizedeconomy which accounts for nearly 50% of India’s gross domestic product.

Any new reform is expected to experience a few teething problems. Since it is expected to be beneficial to the Indian economy in the long-term, the gradual course-corrections should continue  to ensure that it is able to meet its intended objectives.

In a recent judgement Constitution Bench of the Supreme Court has expanded the scope of Fundamental Rights further by ruling that right to privacy is intrinsic to right to life and personal liberty under article 21 and is inherently protected under the various fundamental rights enshrined under Part III of the Indian Constitution.

The judgement will amplify the scope of fundamental rights in the following ways-

• The concept of privacy is embedded in the right to liberty/dignity and that everything done in the exercise of freedom could be attributed to privacy. Therefore different kinds of  freedom guaranteed under article 19 will also get amplified and all the legislative acts and executive actions will have to meet the rigours of right to privacy.
• Similarly, right to equality under article 14 can only be exercised through liberty and freedom of choice.
• Sexual orientation is a part of the right to privacy and thus the judgement may cast doubts over the legality of Section 377 of the IPC. It may open up a new era of liberty for homosexual individuals and acceptance of same sex marriage in India.
• Three elements are considered as the core to the right to privacy: Personal autonomy, the freedom to make choices and the right to determine what happens with information about oneself. It will question the Aadhaar scheme, being enforced by the government to avail different kinds of public services. Although the constitutional validity of the Aadhar scheme is yet to be decided by the Constitutional Bench of the Supreme Court.

However it should not be forgotten that no fundamental rights are absolute in India and therefore right to privacy will also be guided by the same. Different limitations has been imposed by the constitution itself on the exercise of the fundamental rights. Thus right to privacy will be tested on case-to-case basis. However, the  judgement of the Supreme Court will open a new path for securing the privacy, liberty, equality and dignified life for the common man. It will also be helpful in creating a robust legal framework for privacy in India.

The Parliament of India is bicameral and concurrence of both houses is required to pass any bill. However, sometimes there are situations of deadlock between the upper house i.e. Rajya Sabha and the lower house i.e. Lok Sabha. Article 108 of Indian Constitution has the provision of joint sitting of both the houses of the Parliament under these special circumstances. President summons the joint sitting which is presided by the Lok Sabha speaker.

Occasions when this would normally happen

• If after a Bill has been passed by one House and transmitted to the other House and-

• The Bill is rejected by the other House; or
• The Houses have finally disagreed as to the amendments to be made in the Bill; or
• More than six months elapse from the date of the reception of the Bill by the other House without the Bill being passed by it. 

Exception to joint sittings

Not all bills can be referred to a joint session of Parliament. There are two exceptions.

A. Money Bill

Under the Constitution of India, money bills require approval of the Lok Sabha only. Rajya Sabha can give suggestions to Lok Sabha, which it is not required to accept. Even if Rajya Sabha doesn't pass a money bill within 14 days, it is deemed to have been passed by both the Houses of Parliament after expiry of the above period. Therefore there is no need of summoning a joint session in the case of money bill.

B. Constitution Amendment Bill

As per Article 368, the Indian Constitution can be amended by both houses of parliament by 2/3^rd majority. In case of disagreement between both houses, there is no provision to summon joint session of parliament.

Dowry Prohibition Act, 1960, Banking Service Commission Act, 1977 and POTA, 2002 were the few Bills that got passed through the joint session of Parliament.

Electoral reform basically aims at introducing an electoral system of conducting free and fair elections. Keeping in view the necessity to strengthen democracy the Election Commission suggested significant reforms:

• Constitutional protection for all members of the election commission of India: ECI suggested that other election commissioners should also be protected in the same manner as Chief Election Commissioner is protected under clause (5) of Article 324.
  
• Budget of the commission to be 'charged': Presently, the administrative expenditure of the Commission is a voted expenditure. The Commission sent a proposal that the expenditure of the Commission should be charged/ non-votable expenditure on the Consolidated Fund of India similar to other constitutional bodies.
  
• Independent Secretariat: The Commission proposes that it should have an independent Secretariat along the lines of the Lok Sabha, Rajya Sabha and Registries of the Supreme Court and High Courts.
  
• Proxy voting: Section 60 of The Representation of the People Act, 1951 should be amended to provide overseas electors the alternative option of proxy voting or postal ballot voting.
  
• The Commission proposes that making of any false statement or declaration before the Election Commission should be an electoral offence.
  
• The Commission has proposed amendments and suggested dividing the seats in the Council of States and State Legislative Councils into three categories and specifying the term for each category in such a way that biennial retirement of 1/3rd of the members would be ensured.
  
• Use of totalizer for counting of votes: EVM totalizer can count votes of multiple Electronic Voting Machines (EVMs) simultaneously. This way the results of votes in a group of EVMs can be taken without ascertaining the result in individual EVM corresponding to polling booth.
  
• Persons charged with cognizable offences shall be de-barred from contesting in the elections, at the stage when the charges are framed by the competent court provided the offence is punishable by imprisonment of at least 5 years, and the case is filed at least 6 months prior to the election in question.

National Commission for Women is a statutory organization formed in 1992. It is mandated to review the constitutional and legal safeguards for women; recommend remedial legislature measures; facilitate redressal of grievances and advise the Government on all policy matters affecting women.

Since its inception, the Commission has occupied a considerable space in protecting the rights of weaker section of the population on gender lines. In the past, it has proposed the amendments to the acts such as IPC, 1860 to curb the sale of minor girls, Hindu Marriage Act 1955 to omit epilepsy as grounds for divorce, Dowry Prohibition Act in order to bring the problems of Dowry deaths in to the lime light and deal with them appropriately etc. It also proposed the Protection of Women from Domestic Violence Bill which was passed in 2005.

In recent times, the Commission has adopted the multi-pronged strategy of assisting women in redressal of their grievances, facilitating speedy delivery of justice to women by organising ParivarikMahila Lok Adalats in different parts of the country as well as launching the awareness campaign regarding women’s rights. Recently, the Commission set up several inquiry committees to combat problems faced by women such as in the case of police atrocities and misbehavior with girl students of Kurukshetra University, rape case of a women in Safdarjung Hospital, gangrape of 15 years old girl at Lucknow etc. Further, its Research Cell looks into the emerging problems of Indian women due to discrimination and gender bias.

However, there are also examples when the Commission has not been able to come up to the expectations of women in India. For example - on the other serious issue of use of sexual violence against women by police and army personnel in the highly militarised areas of Jammu and Kashmir, north-east and now Chhattisgarh, there has been a silence on this on the part of the commission. Also, the commission has been limited in its fight for empowering Indian women due to shortcomings in its composition and structure:

• It only recommends amendments and submits reports which are not binding on the government
• It lacks autonomy in terms of appointment of its own members.
• It is depended on the government for funding which compromises its independence.
• Its jurisdiction is not applicable to Jammu and Kashmir where the violence against women has increased in the recent past.

Thus there is a need to safeguard the political autonomy of NCW by replacing the current nomination system with a transparent, democratic and non-partisan selection process for members and chairperson of the commission. It should also be given the wider power to enforce its recommendations and provide immediate relief to the victim of women discrimination and violence.