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18th November – Editorials/Opinions Analyses

Contents

  1. How has the Supreme Court interpreted Article 32 over the years?
  2. Agriculture and rural sector can jump-start economy if we fix its ills
  3. Analysis of the Aatma Nirbhar Bharat Abhiyaan (Social Security)

HOW HAS THE SUPREME COURT INTERPRETED ARTICLE 32 OVER THE YEARS?

Context:

On Monday, a Supreme Court Bench headed by Chief Justice of India S A Bobde observed that it is “trying to discourage” individuals from filing petitions under Article 32 of the Constitution.

Relevance:

GS Paper 2: Historical underpinnings & evolution; Features, amendments, significant provisions, basic structure; Comparison of Indian constitutional scheme with other countries’

Mains questions:

  1. Article 32 affirms the right to move the Supreme Court if a fundamental right is violated. How does this provision of the Constitution define this right, and how has the SC interpreted it over the years? 15 marks

Dimensions of the Article

  • What is Article 32?
  • Can High Courts be approached in cases of violation of fundamental rights?
  • Limitations to Article 32
  • What have been the Supreme Court’s recent observations on Article 32?
  • Conclusion

What is Article 32?

Dr. Ambedkar considered the right to constitutional remedies as ‘heart and soul of the constitution’. It is so because this right gives a citizen the right to approach a High Court or the Supreme Court to get any of the fundamental rights restored in case of their violation. The Supreme Court and the High Courts can issue orders and give directives to the government for the enforcement of rights.

The Article is included in Part III of the Constitution with other fundamental rights including to Equality, Freedom of Speech and Expression, Life and Personal Liberty, and Freedom of Religion. Only if any of these fundamental rights is violated can a person can approach the Supreme Court directly under Article 32.

Can High Courts be approached in cases of violation of fundamental rights?

Both the High Courts and the Supreme Court can be approached for violation or enactment of fundamental rights through five kinds of writs:

Habeas Corpus

A writ of habeas corpus means that the court orders that the arrested person should be presented before it. It can also order to set free an arrested person if the manner or grounds of arrest are not lawful or satisfactory. it is for safeguarding the freedom of the individual against arbitrary state action which violates fundamental rights under articles 19, 21 & 22 of the Constitution. This writ provides immediate relief in case of unlawful detention.

When Issued: Writ of Habeas Corpus is issued if an individual is kept in jail or under a private care without any authority of law. A criminal who is convicted has the right to seek the assistance of the court by filing an application for “writ of Habeas Corpus” if he believes that he has been wrongfully imprisoned and the conditions in which he has been held falls below minimum legal standards for human treatment.

Important judgments on Habeas Corpus:

  • ADM Jabalpur v. Shiva Kant Shukla: which is also known as the Habeas Corpus case, it was held that the writ of Habeas Corpus cannot be suspended even during the emergency (Article 359).
  • Queen Bench’s case of 1898 of Ex Parte Daisy Hopkins: This writ has been extended to non-state authorities as well which is evident from two cases. In this case the proctor of Cambridge University detained and arrested Hopkins without his jurisdiction and Hopkins was released.

Quo Warranto

If the court finds that a person is holding office but is not entitled to hold that office, it issues the writ of quo warranto and restricts that person from acting as an office holder. The court issues the Writ of Quo Warranto in the following cases:

  • When the public office is in question and it is of a substantive nature. A petition against a private corporation cannot be filed.
  • The office is created by the State or the Constitution.
  • The claim should be asserted on the office by the public servant i.e. respondent.

Important Judgements on Quo Warranto

  • Ashok Pandey v. Mayawati: In the case, the writ of Quo Warranto was refused against Ms Mayawati (CM) and other ministers of her cabinet even though they were Rajya Sabha members.
  • G.D. Karkare v. T.L. Shevde: The High Court of Nagpur observed that “In proceedings for a writ of quo warranto, the applicant does not seek to enforce any right of his as such nor does he complain of any non-performance of duty towards him. What is in question is the right of the non-applicant to hold the office and an order that is passed is an order ousting him from that office.”

Mandamus

This writ is issued when the court finds that a particular office holder is not doing legal duty and thereby is infringing on the right of an individual. Conditions for issue of Mandamus

  • There must rest a legal right of the applicant for the performance of the legal duty.
  • The nature of the duty must be public.
  • On the date of the petition, the right which is sought to be enforced must be subsisting.
  • The writ of Mandamus is not issued for anticipatory injury.

Important judgements on Mandamus

  • Rashid Ahmad v. Municipal Board: it was held that in relation to Fundamental Rights the availability of alternative remedy cannot be an absolute bar for the issue of writ though the fact may be taken into consideration.
  • Manjula Manjori v. Director of Public Instruction: The publisher of a book had applied for the writ of mandamus against the Director of Public Instruction for the inclusion of his book in the list of books which were approved as text-books in schools. But the writ was not allowed as the matter was completely within the discretion of D.I.P and he was not bound to approve the book.

Certiorari

Under this writ, the court orders a lower court or another authority to transfer a matter pending before it to the higher authority or court. It is issued to quasi-judicial or subordinate courts if they act in the following ways:

  • Either without any jurisdiction or in excess.
  • In violation of the principles of Natural Justice.
  • In opposition to the procedure established by law.
  • If there is an error in judgement on the face of it.

Important Judgements on writ of Certiorari

  • Surya Dev Rai v. Ram Chander Rai & Ors: The Supreme Court has explained the meaning, ambit and scope of the writ of Certiorari. Also, in this it was explained that Certiorari is always available against inferior courts and not against equal or higher court, i.e., it cannot be issued by a High Court against any High Court or benches much less to the Supreme Court and any of its benches.
  • T.C. Basappa v. T. Nagappa & Anr: It was held by the constitution bench that certiorari maybe and is generally granted when a court has acted (I) without jurisdiction or (ii) in excess of its jurisdiction.
  • Hari Bishnu Kamath v. Ahmad Ishaque: The Supreme Court said that “the court issuing certiorari to quash, however, could not substitute its own decision on the merits or give directions to be complied with by the court or tribunal. Its work was destructive, it simply wiped out the order passed without jurisdiction, and left the matter there.”

Prohibition

This writ is issued by a higher court (High Court or Supreme Court) when a lower court has considered a case going beyond its jurisdiction.

When is the writ of Prohibition issued?

  • It is issued to a lower or a subordinate court by the superior courts in order to refrain it from doing something which it is not supposed to do as per law.
  • It is usually issued when the lower courts act in excess of their jurisdiction. Also, it can be issued if the court acts outside its jurisdiction. And after the writ is issued, the lower court is bound to stop its proceedings and should be issued before the lower court passes an order. Prohibition is a writ of preventive nature.
  • The principle of this is ‘Prevention is better than cure’.

Important Judgement on Prohibition

  • East India Commercial Co. Ltd v. Collector of Customs: A writ of prohibition was passed directing an inferior Tribunal prohibiting it from continuing with the proceeding on the ground that the proceeding is without or in excess of jurisdiction or in contradiction with the laws of the land, statutes or otherwise.
  • Bengal Immunity Co. Ltd: The Supreme Court pointed out that where an inferior tribunal is shown to have seized jurisdiction which does not belong to it than that consideration is irrelevant and the writ of Prohibition has to be issued as a right.

Limitations to Article 32

There are certain circumstances during which the citizens do not get the privileges which they ought to under Article 32. Therefore, the situations when the fundamental rights may be denied to the citizens but the constitutional remedies will not be available i.e. Article 32 will not be applicable are:

  • Under Article 33, the Parliament is empowered to make changes in the application of Fundamental Rights to armed forces and the police are empowered with the duty to ensure proper discharge of their duties.
  • During the operation of Martial law in any area, any person may be indemnified by the Parliament, if such person is in service of the state or central government for the acts of maintenance or restoration of law and order under Article 34.
  • Under Article 352 of the Constitution when an emergency is proclaimed, the guaranteed Fundamental Rights of the citizens remains suspended. Also, Fundamental Rights guaranteed under Article 19 is restricted by the Parliament under Article 358 during the pendency of an emergency.
  • Article 359 confers the power to the President to suspend Article 32 of the Constitution. The order is to be submitted to the Parliament and the Parliament may disapprove President’s order.

What have been the Supreme Court’s recent observations on Article 32?

  • In the case of the journalist Siddique Kappan, the court asked why the petitioners could not go to the High Court. It has sought responses from the Centre and the UP government, and will hear the case later this week.
  • In another case last week invoking Article 32, filed by a Nagpur-based man arrested in three cases for alleged defamatory content against Maharashtra Chief Minister Uddhav Thackeray and others, the same Bench directed him to approach the High Court first.

Conclusion

The Writ Jurisdictions which are conferred by the Constitution though have prerogative powers and are discretionary in nature and yet they are unbounded in its limits. The discretion, however, is exercised on legal principles. Therefore, the first essential on which the constitutional system is based in the absence of arbitrary power. Hence, the decision must be taken on the basis of sound principles and rules and should not be based on whims, fancies or humour. And if a decision is not backed by any principles or rules, then such a decision is considered arbitrary and is taken not in accordance with the rule of law.


AGRICULTURE AND RURAL SECTOR CAN JUMP-START ECONOMY IF WE FIX ITS ILLS

Context:

In the first quarter of this financial year, India’s GDP contracted by 23.9 per cent but agriculture grew by 3.4 per cent.

Relevance

GS Paper 3: Storage, transport & marketing of agro-produce and related issues & constraints; Economics of animal-rearing;  Technology missions;

Mains Questions:

  1. Transforming agriculture and its allied sectors and creating synergy with the non-farm rural economy would energise growth and invigorate rural communities. Elaborate. 15 Marks
  2. Discuss the recommendations of Ashok Dalwai Committee on Doubling Famers’ Income by 2022. 15 marks

Dimensions of the Article

  • Importance of Agriculture in Indian Economy
  • Major issue pertaining to Indian Agriculture
  • Suggestions for tackling agricultural distress
  • Way forward

Importance of Agriculture in Indian Economy

Though industry has been playing an important role in Indian economy, still the contribution of agriculture in the development of Indian economy cannot be denied:

  • Highest Employment Provider: More Indians depend directly or indirectly on agriculture for employment than on any other sector.
  • Addresses Malnutrition and provides food security: Agriculture holds a key to reducing India’s malnutrition problem, directly affecting public health and worker productivity.
  • Augmenting Economic Growth: Agriculture has the potential to spur India’s overall gross domestic product (GDP) growth.
  • Agricultural growth of 4%, would add at least a percentage point to GDP, increase exports and improve India’s trade deficit.
  • Economic transformation in developing nations is propelled by increases in agricultural incomes underpinning industrial growth. For example, China’s economic growth.
  • India’s vital land and water resources, which farmers used for agricultural production, assumes more significance especially in the face of mounting scarcity, environmental degradation, and climate change.
Everything about Indian Farming and Agriculture – Shiksha IAS Academy: Call  @9986102277

Major issue pertaining to Indian Agriculture

  • Almost 90 per cent of India’s groundwater goes into irrigation and is grossly over-extracted. In Punjab, water tables have been falling by over 2.3 ft/year since 2000, propelled by free electricity and no meters (only West Bengal meters groundwater use). By 2030, 65 per cent of India’s blocks will be over-extracting groundwater (World Bank).
  • Low Agricultural Productivity: India’s crop yields are lower than those in the US, Europe and China.
  • Policy Issues: There has been an absence of policy coherence between the Centre and states on the interlinked issues of agriculture.
  • Inefficient Agricultural Marketing: In the absence of sound marketing facilities, farmers have to depend upon middlemen for the disposal of their farm produce which is sold at throw-away prices. Agricultural Produce Market Committee (APMC) Act has also allowed the cartelization of traders that keeps farm-gate prices low.
  • Inefficient MSP structure: Only 6% farmers get the benefit of MSP and remaining 94% are dependent on the markets.
  • Climate Change: Higher frequency of extreme weather events are adversely affecting agricultural production through soil erosion, pest attack, crop failure etc.
  • Lack of enabling infrastructure along the value chain: including cold storage, warehouses, and agro processing—has not developed in corresponding speed with rising agricultural production leading to food wastage, poor price discovery for farmer, distress sale of product etc
  • Low investment in Research & Development: Less than 1% of the Agricultural GDP in India is spent on research.
  • Moreover, 86 per cent of our farmers cultivate two ha or less, often in fragments; 75-80 per cent borrow credit informally; 70 per cent provide only 4-5 per cent of marketed surplus in wheat and rice, even in surplus states; barely 6-12 per cent sell in mandis, and few gain from MSPs.

Suggestions for tackling agricultural distress

  • Remodel irrigation by expanding rainwater harvesting (for both surface water and recharging groundwater). Between 1999 and 2009, Gujarat’s agriculture grew at 9.6 per cent, attributed mainly to rainwater harvesting and BT cotton (T Shah et al, EPW). In 10-15 years, Gujarat built 0.5 million micro-structures: Check dams, bunds, etc. MGNREGA could be put to similar use in other states.
  • Promoting micro-irrigation: On micro-irrigation, again, a 2014 government study for 13 states found it significantly reduced water and fertiliser use, while raising wheat yields by 25 per cent, and vegetable yields by 52 per cent. However, only 10 per cent of India’s cropland has micro-irrigation. Regulated irrigation expansion will increase yields, cropping intensity and high-value crops.
  • Agroecological Farming:  Agroecological farming can save costs, employ more labour and rejuvenate soils. A survey of 286 experiments in sustainable farming across 57 countries found a mean yield increase of 79 per cent. Moving from cereals to multiple products, including poultry, fruits and vegetables, will also fit our changing dietary patterns.
  • Research and Development: More research into heat-resistant crops and better extension. A study in Science reported that agricultural information delivered via cell-phones increased yields by 4 per cent and the odds of adopting recommended inputs by 22 per cent, across several countries, including India.
  • Institutional Change: Our farms are too small for tapping scale economies or effectively exploiting markets. What we need is smallholders pooling resources and farming cooperatively in small groups. Cooperation works if groups are small, relatively homogenous, constituted by friends and neighbours, cemented by trust.
  • Promoting Allied Sector:  livestock, fisheries and forests, which account for 26 per cent, 5.5 per cent and 8.5 per cent of GVP from agriculture, have huge underused potential. India is the world’s second-largest producer of aquaculture fish and employs 13.5 million people, 32 per cent being women (FAO). In 2017-18, our fisheries grew at 11.9 per cent.
  • Strengthen farm and rural non-farm linkages:
    • 61 per cent of rural incomes come from non-farm activities.
    • A vast under-tapped potential lies in agro-processing (rural families purchase 80 per cent of the food they eat);
    • Machine tools and agro-machinery (consider Ludhiana in the 1980s); farm tourism; and health and education services. In turn, this will boost aggregate demand.

Way Forward

Transforming agriculture and its allied sectors and creating synergy with the non-farm rural economy would energise growth and invigorate rural communities. This would also help more rural youth find local jobs, rather than be forced to live as aliens in inhospitable cities.

Background

Recommendations of Ashok Dalwai Committee on Doubling Famers’ Income by 2022

The committee has given reports in 14 volumes and following are the top line recommendations of these-

  • Recognize agriculture in India as an enterprise– that is based on the principles of profit. Following actions have been recommended
    • Pursue adoption of NITI Aayog’s Model Land Leasing Act by all the states and UTs in a time bound manner.
    • Enable farm owners to transit from the status of cultivators to farm managers by outsourcing all possible farm operations, so as to achieve both resource use efficiency and effective outcome, besides realising reduced cost of cultivation. Farmers should transact with the service providers as a Group like Village Produce Organisations (VPOs), Farmers Produce Organisations (FPOs) etc.
  • Expand the mandate of agriculture– from food and nutrition security existing currently
    • To generate resources as raw materials to feed and support industrial enterprises – chemicals, construction, energy, fibre, food, medicinal, etc.
    • Shift from only farm activities to farm + on-and-off farm activities (primary + secondary agriculture).
  • Water may be treated as the ‘determining factor’ of production– rather than considering it as a mere input. Following things should be done
    • Creation of additional sources of water – an addition of 8 to 9 million hectares under irrigation (AIBP, MGNREGA etc.) by 2022-23
    • Efficient use of water – 2 to 2.5 million hectares under micro-irrigation per year
    • Saving on ground water and its sustainability through recharge
    • Crop alignment based on ‘path of least resistance’. It implies in promoting agroclimatic based cropping/production system, the best option need not be the one chosen. It can be an option that is more acceptable to the farmers.
  • Adopt ‘Fork to Farm’ approach– by reversing the ‘Farm to Fork’ approach now accepted generally in the following manner:
    • Adopt monetisation of produce as the basis for maximising the value capture for the farmers.
    • Maximise monetisation possibilities by upgrading and harmonising the agri-logistics (storage & transportation), agro-processing and marketing.
    • Adopt new market architecture comprising GrAMs, alternate Wholesale markets (APMCs – in private & public sectors) and Export market.
    • Promote Agricultural Value System (AVS) as a link between farms and markets.
  • Adopt risk management strategies at all the stages of agriculture: Pre-and Post-production stages-
    • Replicate Meteorological Advisory Services across the country; on the lines of the technology platform adopted in Karnataka.
    • Coverage of farming under Pradhan Mantri Fasal Bima Yojana (PMFBY) should become a norm.
    • Market risks- Adopt an institutional mechanism for price & demand forecasting. And Adopt an import-export duty structure, that helps domestic market sentiments to the advantage of farmer-producers.
  • Improve Institutional Arrangement/Overhaul of the Union agriculture ministry: through steps such as o reorganizing some of the divisions of ministry to bring into focus new aspects like agri-logistics, investments for capital formation, primary processing etc.
    • setting up a three-tier planning and review mechanism through district, state and national level committees.
    • Establishing a national level policy and planning committee to review the policy framework and progress in doubling farmer’s incomes, review trade policy, budgetary allocations and status of farmers’ welfare.
  • Liberalize the definition of a ‘farmer’ to include cultivators, lessee farmers and sharecroppers and developing an online and annually authenticated database to identify a farmer and render him/her eligible to avail benefits of agriculture related support-system of government.

ANALYSIS OF THE AATMA NIRBHAR BHARAT ABHIYAAN (SOCIAL SECURITY)

Context:

Emphasising that the special economic package would focus on land, labour, liquidity and laws, PM Modi said it would benefit labourers, farmers, honest tax payers, MSMEs and cottage industry.

Relevance:

GS Paper 2: Welfare Schemes (centre, states; performance, mechanisms, laws, institutions and bodies constituted for protection of vulnerable sections);

Mains Questions:

  1. Performance of welfare schemes that are implemented for vulnerable sections is not so effective due to absence of their awareness and active involvement at all stages of policy process – Discuss. 15 marks

Dimensions of the Topic

  • What is social security?
  • Social security under Aatma Nirbhar Bharat Abhiyan
  • Way forward

What is social security?

Any of the measures established by legislation to maintain individual or family income or to provide income when some or all sources of income are disrupted or terminated or when exceptionally heavy expenditures have to be incurred (e.g., in bringing up children or paying for health care)

Moreover, Social Security is increasingly seen as an integral part of the development process. It helps to create a more positive attitude not just to structural and technological change but also the challenge of globalisation and to its potential benefits in terms of greater efficiency and higher productivity.

Social security under Aatma Nirbhar Bharat Abhiyan

Strengthen social benefits for salaried workers:

  • The Economic Survey (2020) estimates that India has 11.45 crore salaried employees or workers with regular wages. Those employed in firms with more than 20 workers or in industries specified in the Employees Provident Fund (EPF) and Miscellaneous Provisions Act, 1952 must establish an EPF. 
  • PM Garib Kalyan Yojana (PMGKY) is a Rs 1.7 lakh crore relief package announced on March 26, 2020 which covers benefits to workers, food distribution, cash transfers and other measures targeted towards helping the poor cope with COVID-19 and subsequent economic stress.
  • Government contribution to EPF:  Under PMGKY the monthly payments of 24% of the salary ordinarily disbursed by the employer and the employee will be replaced by contributions by the central government from March to August, 2020.
  • Provide relief to construction workers: A welfare fund comprising of collections from an additional cess on construction work was established for this purpose.  The 1% cess is levied and collected by state governments which remit the collections to the fund.

Provide easy access to formal credit for street vendors:

  • Under the Prime Minister’s Street Vendor’s Aatma Nirbhar Nidhi (PM SVANidhi), the government will provide an initial working capital of up to Rs 10,000 to street vendors.  Vendors under the scheme will also be eligible to receive an interest subsidy of 7% per annum, up to March 31, 2022.
  • The scheme can be implemented by states which have notified Rules and schemes under the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014.  The Act specifies the rights and obligations of street vendors, regulates their business, and mandates the establishment Town Vending Committees responsible for conducting identification surveys of vendors in their zone/ward.

Provide subsidised ration:

  • To assist with COVID-19 induced financial stress, beneficiaries of PM Garib Kalyan Anna Yojana (identified by state governments based on annual income) will be provided 5 kg of grains per person and 1 kg of chana per family per month between April and November 2020.
  • Beneficiaries of the Public Distribution System (PDS) are identified by state governments, making it difficult for migratory workers to access subsidised food grains.  To enable the required nation-wide portability of ration card holders, the One Nation One Ration Card scheme was launched in August, 2019 to allow beneficiaries across India access to PDS.

Expand the coverage of the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA), 2005:

  • MGNREGA provides at least 100 days of guaranteed wage employment every year to each rural household whose adult members volunteer to do unskilled manual work. Further, under the Pradhan Mantri Garib Kalyan Yojana, MGNREGA wage has been increased from Rs 182 to Rs 202 per day. 

Increase private investment in social infrastructure projects by improving their viability:

  • Viability Gap Funding (VGF) will be established up to 30% of the total cost of a proposed project. VGF gives a one-time capital subsidy for projects considered unattractive for complete private investment.  Currently, the government provides VGF up to 20% of the total project cost. The proposed increase in the funding limit is yet to be approved by the Cabinet and operationalised. 
  • Provide free of cost gas cylinders under the Ujwala scheme.

Provide financial aid to senior citizens:

  • Under PMGKY the government announced that it will provide Rs 1,000 per month between April and June to 3 crore senior citizens (29% of the total 10.4 crore senior citizens estimated to live in India)
  • The Maintenance and Welfare of Parents and Senior Citizens (Amendment) Bill, 2019 is currently pending in the Parliament. 
    • The Bill removes the upper limit (currently Rs 10,000 per month) on maintenance fee, brings step-children, adoptive children, children-in-law, and legal guardians of minor children under the definition of children and provides for regulation of private care homes. 
    • It also states that a failure to comply with maintenance orders can be punishable with a fine and imprisonment of up to one month.

Way forward

The Ministry of Labour and Employment has released draft rules for the Code on Social Security, 2020 for comments from stakeholders. The draft rules are linked to provisions relating to Employees’ Provident Fund Organisation (EPFO), Employees’ State Insurance Corporation (ESIC), National Social Security Board for unorganised workers, gig workers and platform workers outlined in the Code on Social Security. This draft will protect the rights of unorganised workers and give them sense of security.

Background

Social security under Indian Constitution

  • Article 41: Right to work, to education and to public assistance in certain cases. State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.
  • Article 42: Provision for just and humane conditions of work and maternity relief. State shall make provision for securing just and humane conditions of work and for maternity relief.
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