- SC’s views on ‘Indianisation’ of the legal system
- Thousands of NGOs in limbo over permission for foreign funds
- Maharashtra’s Shakti Act: Death penalty for rape
- Tussle over the election of Maharashtra Assembly Speaker
- Defence Minister unveils 3 border roads, 24 bridges
At least two Supreme Court judges have in the past few months openly expressed the need to “Indianise” the legal system.
GS-II: Polity and Constitution (Indian Judiciary)
Dimensions of the Article:
- Views of SC Judges on ‘Indianization’ of Judiciary
- Understanding what the judges meant by “Indianizing” the judiciary
- Need for “Indianizing” the Judiciary
- Way Forward
Views of SC Judges on ‘Indianization’ of Judiciary
- In September 2021, the Chief Justice of India had called for the “Indianisation” of the legal system to provide greater access to justice to the poor as the “need of the hour”.
- In December 2021, Justice S. Abdul Nazeer spoke about the need to rid the judiciary of ‘the colonial legal system’ which is detrimental to national interest. He called for embracing the “great legal traditions as per Manu, Kautilya, Katyayana, Brihaspati, Narada, Parashara, Yajnavalkya and other legal giants of ancient India”.
- In 1986, the then Chief Justice of India P.N. Bhagwati, had said that we cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that in any other foreign country. He said that we have to build up our own jurisprudence.
Understanding what the judges meant by “Indianizing” the judiciary
- Chief Justice of India, N V Ramana, clarified that, Indianization means the need to adapt to the practical realities of our society and localise our justice delivery systems.
- Our judicial systems practice rules which are colonial in origin and hence, may not be best suited to the needs of Indian population. Colonial system of judiciary was established more or less from the master-servant point of view and not from the public’s point of view.
- Very often our justice delivery poses multiple barriers for the common people. The working and the style of courts do not sit well with the complexities of India.
- An example for such barriers could be language – parties from a rural place may feel out of place in the court as they do not understand the arguments or pleadings which are mostly in English. Also, judgments have become lengthy, which further complicates the position of litigants.
Connecting Indianization of Judiciary to Indian History
- Great lawyers and judges are not born but are made by proper education and great legal traditions as were Manu, Kautilya, Katyayana, Brihaspati, Narada, Parashara, Yajnavalkya and other legal giants of ancient India.
- Several judgments since the 1980s refer to the works of Manu and Kautilya.
- In the privacy judgment, Justice (retired) S.A. Bobde, referred to how “even in the ancient and religious texts of India, a well-developed sense of privacy is evident”. He mentions that Kautilya’s “Arthashastra prohibits entry into another’s house, without the owner’s consent”.
- However, the SC has also referred to the ancient texts for the sake of deviating and passing orders against the ancient policies:
- In its Joseph Shine judgment decriminalising adultery, the court refers to how “the Manusmriti prescribes punishment for those who are addicted to intercourse with wives of other men by punishments which cause terror, followed by banishment”.
- In the Sabarimala case, the court points to the negative side/impact of the Manusmriti to observe that in these “ancient religious texts and customs, menstruating women have been considered as polluting the surroundings” – and went on to go against such sentiments in its judgement.
Need for “Indianizing” the Judiciary
- India has the oldest judiciary system in the world dating back to 5000 years known for effective, trustworthy and democratic jurisprudence. But most of the statements in judgements nowadays are taken from western jurisprudence while India’s own ancient system of delivery of justice is given much less recognition.
- Malimath Committee (2000) on reforms in the Criminal Justice System of India (CJS) submitted its report in 2003 that a Schedule to the Code be brought out in all regional languages so that the accused knows his/her rights, as well as how to enforce them and whom to approach when there is a denial of those rights.
- The All-India Judicial Services (AIJS) was first proposed by the 14th report of the Law Commission in 1958.
- The strength of judges is increasing but the number is not up to the desired level as it is in European countries. There are more than 4.5 crore cases pending in the judiciary and to solve them, currently India has only 19.78 judges per million people (much lower than required).
- The simplification of justice delivery should be our pressing concern. It is crucial to make justice delivery more transparent, accessible and effective. “The common man should not be apprehensive about approaching the courts and authorities.”
- The use of Indian/regional languages in courts at grass-root level becomes more significant in a sound judicial system for a country like India.
- There is a need to strengthen the legal outreach programmes along with improving the judicial infrastructure. The top court has decided to launch a country-wide legal awareness mission in the coming week. Lack of proper infrastructure and funds curtail the activities of legal services institutions, reducing the number of beneficiaries.
- Alternate dispute mechanisms like mediation and conciliation would go a long way in reducing pendency, unnecessary litigation and save resources. The notion that ordinary people want black robed judges, well-dressed lawyers in fine courtrooms as settings to resolve their disputes is incorrect. People with problems, like people with pains, want relief and they want it as quickly and inexpensively as possible.
- The need of the hour is to correct the patriarchal mindset in recommending and approving the names of those who are to be elevated as high court judges and come out with more representation to worthy women lawyers and district judges for elevation. No reforms in the judiciary can effectively take place unless it is inclusive of women.
-Source: The Hindu
Recently, the Foreigners Contribution Regulation Act (FCRA) registration of Missionaries of Charity, a Catholic religious congregation set up by Nobel laureate Mother Teresa was not renewed due to “audit irregularities”.
Not just Missionaries of Charity, but thousands of Non-Government Organisations (NGOs) and charitable trusts are awaiting a decision from the government on the renewal of their permissions to receive foreign funds by the year-end.
GS-II: Polity and Governance (Government Policies & Interventions, Non-Governmental Organisations -NGOs), GS-III: Indian Economy (External Sector, Mobilization of Resources)
Dimensions of the Article:
- Foreign Contribution (Regulation) Act, 2010
- Foreign Contribution (Regulation) Amendment Act, 2020
- Issues Related to FCRA
- Non-Governmental Organisations (NGOs) in India
- Why have NGOs been controversial recently?
- MHA guidelines regarding FCRA and NGOs
Foreign Contribution (Regulation) Act, 2010
The Foreign Contribution (regulation) Act, 2010 is a consolidating act whose scope is to regulate the acceptance and utilisation of foreign contribution or foreign hospitality by certain individuals or associations or companies and to prohibit acceptance and utilisation of foreign contribution or foreign hospitality for any activities detrimental to the national interest and for matters connected therewith or incidental thereto.
Key Points regarding FCRA
- Foreign funding of voluntary organizations in India is regulated under FCRA act and is implemented by the Ministry of Home Affairs.
- The FCRA regulates the receipt of funding from sources outside of India to NGOs working in India.
- It prohibits the receipt of foreign contribution “for any activities detrimental to the national interest”.
- The Act held that the government can refuse permission if it believes that the donation to the NGO will adversely affect “public interest” or the “economic interest of the state”. However, there is no clear guidance on what constitutes “public interest”.
- The Acts ensures that the recipients of foreign contributions adhere to the stated purpose for which such contribution has been obtained.
- Under the Act, organisations require to register themselves every five years.
Foreign Contribution (Regulation) Amendment Act, 2020
- The Act bars public servants from receiving foreign contributions. Public servant includes any person who is in service or pay of the government, or remunerated by the government for the performance of any public duty.
- The Act prohibits the transfer of foreign contribution to any other person not registered to accept foreign contributions.
- The Act makes Aadhaar number mandatory for all office bearers, directors or key functionaries of a person receiving foreign contribution, as an identification document.
- The Act states that foreign contribution must be received only in an account designated by the bank as FCRA account in such branches of the State Bank of India, New Delhi.
- The Act proposes that not more than 20% of the total foreign funds received could be defrayed for administrative expenses. In FCRA 2010 the limit was 50%.
- The Act allows the central government to permit a person to surrender their registration certificate.
Issues Related to FCRA
- The Act also held that the government can refuse permission if it believes that the donation to the NGO will adversely affect “public interest” or the “economic interest of the state” – however, there is no clear guidance on what constitutes “public interest”.
- By allowing only some political groups to receive foreign donations and disallowing some others, can induce biases in favour of the government. NGOs need to tread carefully when they criticise the regime, knowing that too much criticism could cost their survival. FCRA norms can reduce critical voices by declaring them to be against the public interest – Hence, it can be said that FCRA restrictions have serious consequences on both the rights to free speech and freedom of association under Articles 19(1)(a) and 19(1)(c) of the Constitution.
- In 2016, the UN Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association undertook a legal analysis of the FCRA and stated that restrictions in the name of “public interest” and “economic interest” failed the test of “legitimate restrictions” as they were too vague and gave the state excessive discretionary powers to apply the provision in an arbitrary manner.
Non-Governmental Organisations (NGOs) in India
- Worldwide, the term ‘NGO’ is used to describe a body that is neither part of a government nor a conventional for-profit business organisation.
- NGOs are groups of ordinary citizens that are involved in a wide range of activities that may have charitable, social, political, religious or other interests.
- In India, NGOs can be registered under a plethora of Acts such as the Indian Societies Registration Act, 1860, Religious Endowments Act,1863, Indian Trusts Act, etc.
- India has possibly the largest number of active NGOs in the world.
- Ministries such as Health and Family Welfare, Human Resource Department, etc., provide funding to NGOs, but only a handful of NGOs get hefty government funds.
- NGOs also receive funds from abroad, if they are registered with the Home Ministry under the Foreign Contribution (Regulation) Act (FCRA). There are more than 22,500 FCRA-registered NGOs.
- Registered NGOs can receive foreign contribution under five purposes — social, educational, religious, economic and cultural.
Why have NGOs been controversial recently?
- An Intelligence Bureau (IB) report, submitted to the PMO and National Security Adviser in 2019, alleged that several foreign-funded NGOs were stalling India’s economic growth by their obstructionist activism.
- In 2015, the Home Ministry had cancelled the FCRA licences of 10,000 organisations.
- The annual inflow of foreign contribution has almost doubled between the years 2010 and 2019, but many recipients of foreign contribution are being not utilised the same for the purpose for which they were registered or granted prior permission under amended provisions of the FCRA 2010.
- Recently, the Union Home Ministry has suspended licenses of the six (NGOs) who were alleged to have used foreign contributions for religious conversion.
- Recently the National Investigation Agency (NIA) registered a case against a foreign based group that provides funds for secessionist and pro-Khalistani activities in India.
MHA guidelines regarding FCRA and NGOs
- The Ministry of Home Affairs (MHA) issued new regulating guidelines to banks under Foreign Contribution (Regulation) Act, 2010. It states that the donations received in Indian rupees by non-governmental organisations (NGOs) and associations from any foreign source (even if that source is located in India at the time of such donation) should be treated as foreign contribution.
- Under the issued regulations, donations given in Indian rupees (INR) by any foreigner/foreign source including foreigners of Indian origin like Overseas Citizen of India (OCI) or Person of India Origin (PIO) cardholders should also be treated as foreign contribution.
- The guidelines mandate that good practices should be followed by NGOs in accordance with standards of global financial watchdog- Financial Action Task Force (FATF).
- MHA asked NGOs to inform the Ministry about “suspicious activities” of any donor or recipient and “take due diligence of its employees at the time of recruitment.”
Examples of action taken by MHA against NGOs according to 2020 amendment to FCRA
- The FCRA registration of Vadodara-based NGO was cancelled because it was accused of illegally converting members of the Hindu community, funding the anti-CAA protests and for criminal activities to strengthen Islam.
- The FCRA registration of two other Christian NGOs — the New Hope Foundation, based in Tamil Nadu, and Holy Spirit Ministries from Karnataka were also cancelled.
- The FCRA registration of AFMI Charitable Trust was cancelled by the MHA for violating the provisions of the Act.
- With more than 22,000 NGOs registered under the Foreign Contributions (Regulations) Act (FCRA), experts are saying that if the government follows a tough line – at least 10-15% of the groups that have applied for renewal are likely to be denied permissions, and stopped from accessing funding from abroad.
- NGOs fill the gaps where the government fails to do their jobs – hence, excessive regulation on foreign contribution will affect working of the NGOs which are helpful in implementing government schemes at the grassroots.
- Sharing of resources across national boundaries, which is essential to the functioning of a global community, should not be discouraged unless there is reason to believe the funds are being used to aid illegal activities.
-Source: The Hindu
The Maharashtra Assembly passed the Shakti Criminal Laws (Maharashtra Amendment) Act unanimously, with which it became the second state in India after Andhra Pradesh to approve death penalty for heinous offences of rape and gangrape.
GS-II: Social Justice and Governance (Issues Related to women, Government Interventions and Policies, Issues arising out of the design and implementation of Government Policies), GS-II: Polity and Governance (Important Judgements)
Dimensions of the Article:
- About Shakti Criminal Laws (Maharashtra Amendment) Act
- Criticism of the changes
- Status of women safety in India
- Laws for women against sexual crimes
- Capital Punishment in India
About Shakti Criminal Laws (Maharashtra Amendment) Act
- The Shakti Criminal Laws (Maharashtra Amendment) Act has amended the existing criminal laws to include death penalty as punishment in cases of rape and gangrape “in cases which have the characteristic of offence is heinous in nature and where adequate conclusive evidence is there and the circumstances warrant exemplary punishment, with death”. (The existing law on rape had provisions for death penalty only in cases of repeated offences.)
- The Act has also enhanced fines and punishment for offences of sexual violence against women and minors.
- Under the POCSO Act too, punishment for penetrative sexual assault in heinous cases has been enhanced to death penalty.
- The Act requires the trial in these cases to be conducted on a day-to-day basis and completed within 30 working days from the date of filing of the chargesheet. It also requires for the investigation to be completed within a month of the FIR.
- In cases of grievous hurt caused due to acid attacks under Section 326A, the punishment has been enhanced to a minimum of 15 years which can be extended to the remainder of the natural life of the perpetrator along with fine.
- In cases of voluntarily throwing acid or attempting to throw it, punishment under section 326B has been enhanced to a minimum of seven years and a maximum of ten years.
- The Act has provided a separate provision under the law for sexual harassment. Section 354E has been inserted to the IPC for intimidation of women by any mode of communication, in addition to insulting modesty.
- The Act has also made it mandatory for social media platforms, mobile data companies to share data sought for the purposes of investigation in cases of rape, sexual harassment, acid attacks and relevant provisions under the POCSO Act.
- The Act has also included a provision for punishment for any person “who makes false complaint or provides false information against any person solely with the intention to humiliate, extort, threaten, defame or harass” in cases of rape, sexual harassment and acid attacks.
Criticism of the changes
- It is suggested that enhancement of punishment to death penalty can be counter-productive.
- It is said that in many cases where the perpetrators are family members or known to the victims including children, it would be difficult to find support to approach authorities leading to unreported cases.
- It is important to note that that it may endanger lives of victims since punishment for murder and rape could both attract a death penalty.
- Retired Bombay High Court judge Justice B G Kolse-Patil called the Shakti Act ‘draconian’, stating that the law can be misused to settle political scores.
Status of women safety in India
- Women safety involves various dimensions such as Sexual harassment at workplace, rape, marital rape, dowry, acid attack etc.
- The United Nation’s ‘Safe Cities and Safe Public Spaces’ programme, which started in 2010, recognized that cities all around the world were becoming unsafe for women.
- The latest NCRB data for the year 2016 shows that Overall crimes against women have risen by just about 3%, whereas incidents of rape have gone up by 12%.
- Majority of cases categorized as crimes against women were reported under ‘Cruelty by husband or his relatives’ (32.6%). This draws a bleak picture of women safety in private places or home.
Laws for women against sexual crimes
- Section 354 of the IPC criminalises any act by a person that assaults or uses criminal force against a woman with the intention or knowledge that it will outrage her modesty. Such an act is punishable with either simple or rigorous imprisonment.
- Section 375 of the IPC made punishable the act of sex by a man with a woman if it was done against her will or without her consent. Her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt is considered to be Rape. Sex with or without her consent, when she is under 18 years is considered rape.
- Section 114A in the Indian Evidence Act of 1872 presumes that there is absence of consent in certain prosecutions of rape if the victim says so. This applied to custodial rape cases.
- Section 228A makes it punishable to disclose the identity of the victim in Rape case.
- The Protection of Children from Sexual Offences (POCSO) Act, 2012: Enacted to provide a robust legal framework for the protection of children from offences of sexual assault, sexual harassment and pornography. The framing of the Act seeks to put children first by making it easy to use by including mechanisms for child-friendly reporting, recording of evidence, investigation and speedy trial of offences through designated Special Courts.
- Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013: To ensure women’s safety at workplace, this Act seeks to protect them from sexual harassment at their place of work. 36 % of Indian companies and 25% among MNC’s are not complaint with the Sexual Harassment Act according to a FICCI report.
- Indecent Representation of Women (Prohibition) Act, 1986: prohibits indecent representation of women through advertisements.
- Protection of Women from Domestic Violence Act, 2005: enacted to protect women from domestic violence – including not only physical violence, but also other forms of violence such as emotional/verbal, sexual, and economic abuse.
Capital Punishment in India
- Prior to the Criminal Procedure (Amendment) Act (Cr PC) of 1955, the death penalty was the rule and life imprisonment an exception in India. Further, the courts were bound to give an explanation for awarding a lighter penalty than death for capital offences.
- After the amendment of 1955 courts were at liberty to grant either death or life imprisonment. As per Section 354 (3) of the Cr PC, 1973 the courts are required to state reasons in writing for awarding the maximum penalty.In concurrence of this, a proposal for the scrapping of the death penalty was rejected by the Law Commission in its 35th report 1967.
- The Indian Penal Code prescribes ‘death’ for offences such as
- Waging war against the Government of India. (Sec. 121);
- Abetting mutiny actually committed (Sec. 132);
- Giving or fabricating false evidence upon which an innocent person suffers death. (Sec. 194);
- Murder (Sec. 302);
- Direct or indirect abetment of sati is punishable with Death penalty under the Commission of Sati (Prevention) Act, 1987.
- Under SC and ST (Prevention of Atrocities Act), 1989 giving false evidence leading to the execution of an innocent member belonging to the SC or ST would attract the death penalty.
- Besides these, rape of a minor below 12 years of age is punishable with death under Protection of Children from Sexual Offences (POCSO) Act, 2012.
- Financing, producing, manufacturing as well as the sale of certain drugs attracts the death penalty for repeat offenders under the Narcotic Drugs and Psychotropic Substances Act, 1985.
- Unlawful Activities (Prevention) Act, 1967; Army, Navy and Air Force Acts also provide the death penalty for certain specified offences committed by members of the armed forces.
-Source: Indian Express
Maharashtra Governor Bhagat Singh Koshyari and the Maha Vikas Aghadi (MVA) government are locked in a tussle over the election of the Speaker of the Assembly.
GS-II: Polity and Constitution (Constitutional Provisions, Legislature)
Dimensions of the Article:
- Speaker of the Legislative Assembly
- Election and Term of Office of the Speaker
- About the issue with election of Maharashtra’s Assembly Speaker
- Rules in states and Constitution regarding election of the Speaker
Speaker of the Legislative Assembly
The presiding officer of the state legislative assembly is also known as the Speaker who is elected by the members of the assembly.
The members of the assembly also elect the Deputy Speaker.
All the Powers and Functions etc., of a Speaker of the State Legislative Assembly, are akin to that of the Speaker of Lok Sabha.
Speaker of Lok Sabha
- The Speaker is the head of the Lok Sabha (Or the Legislative Assemblies of the States), and its representative and his/her decision in any Parliamentary matter is final.
- He is the guardian of powers and privileges of the members, apart from being the principal spokesman of the House.
- The Speaker of the Lok Sabha derives his powers and duties from three sources:
- The Constitution of India,
- The Rules of Procedure and Conduct of Business of Lok Sabha, and
- Parliamentary Conventions (residuary powers that are unwritten or unspecified in the Rules).
- Usually, a member belonging to the ruling party is elected Speaker. The process has evolved over the years where the ruling party nominates its candidate after informal consultations with leaders of other parties and groups in the House.
- This convention ensures that once elected, the Speaker enjoys the respect of all sections of the House.
Election and Term of Office of the Speaker
- The Speaker of the lower house is chosen by the members of lower house from among themselves, after the first meeting, by a simple majority of members present and voting in the Lower house.
- Although there are no specific qualifications prescribed for being elected the Speaker, an understanding of the Constitution and the laws of the country is considered a major asset for the holder of the Office of the Speaker.
- The Speaker of lower house generally remains in office during the life of lower house. However, to remain in office, he/she needs to remain a member of the Lower house.
- Whenever the Lower house is dissolved, its speaker continues to remain in office until immediately before the first meeting of lower house after it is reconstituted.
About the issue with election of Maharashtra’s Assembly Speaker
- More than two years since the Maharashtra Assembly was constituted, a need has arisen to elect a speaker. The post fell vacant in February 2021, after the Speaker resigned and the Deputy Speaker conducted the proceedings in the Legislative Assembly.
- In December 2021, the state Cabinet took the decision to hold the Speaker’s election and communicated it to the Governor. However, the Governor was examining the constitutionality of the amendments made by the Rules Committee of the state legislature in order to conduct the election of the Speaker by voice vote instead of secret ballot.
- The Maharashtra Government argues that the amendments are constitutionally sound, and that the legislature had followed all required procedures while making the amendments.
Rules in states and Constitution regarding election of the Speaker
- Article 178 of the Constitution states: “Every Legislative Assembly of a State shall, as soon as may be, choose two members of the Assembly to be respectively Speaker and Deputy Speaker thereof and, so often as the office of Speaker or Deputy Speaker becomes vacant, the Assembly shall choose another member to be Speaker or Deputy Speaker, as the case may be.”
- The Constitution does not specify the process of holding these elections; that is left to the state legislatures. It also does not set a timeframe other than to say the elections should be held “as soon as may be”.
- As per Rule 6 of the Maharashtra Legislative Assembly Rules, “The Governor shall fix a date for the holding of the election and the Secretary shall send to every member notice of the date so fixed.” A former Secretary of the state Assembly said the election of the Speaker can take place only after the Governor fixes the date for it.
- Some states lay down timeframes:
- In Haryana for example, the election of the Speaker must be held as soon as possible after the Assembly election, and the Deputy Speaker must be elected within another seven days.
- In Uttar Pradesh, the Speaker’s election is required to be held within 15 days if the post falls vacant during the term of the Assembly.
-Source: Indian Express
Defence Minister Rajnath Singh inaugurated 24 bridges and three roads, built by the Border Roads Organisation (BRO) in four States and two Union Territories.
Prelims, GS-III: Industry and Infrastructure
Dimensions of the Article:
- About the Border Roads Organisation (BRO)
- About the unveiled Roads and Bridges
About the Border Roads Organisation (BRO)
- The Border Roads Organisation (BRO) develops and maintains road networks in India’s border areas and friendly neighboring countries.
- Currently, the organisation maintains operations in twenty-one states, one UT (Andaman and Nicobar Islands), and neighboring countries such as Afghanistan, Bhutan, Myanmar, and Sri Lanka.
- Presently, BRO is also involved in the construction of a tunnel at the Rohtang pass which is estimated to be ready by 2019.
- The BRO operates in 18 Projects namely: Arunank, Beacon, Brahmank, Chetak, Deepak, Dantak, Himank, Hirak, Pushpak, Sampark, Setuk, Sewak, Shivalik, Swastik, Udayak, Vartak, Vijayak and sela tunnel.
- The organisation’s operations are spread across India, Bhutan, Myanmar, Tajikistan, and Afghanistan.
- The BRO was formed on 7 May 1960 to secure India’s borders and develop infrastructure in remote areas of the north and north-east states of the country.
- The BRO consists of Border Roads Wing under the Ministry of Defense and the General Reserve Engineer Force (GREF). Officers are selected through the Indian Engineering Services (IES) Examination conducted by the Union Public Service Commission (UPSC).
About the unveiled Roads and Bridges
- Of the 24 bridges, nine are in Jammu and Kashmir, five each in Ladakh and Himachal Pradesh, three in Uttarakhand and one each in Sikkim and Arunachal Pradesh. Of the three roads, two are in Ladakh and one is in West Bengal.
- The main highlight was the inauguration of India’s first indigenous Class 70 140-feet double-lane modular bridge, built at the height of 11,000 feet at Flag Hill Dokala, Sikkim.
- Another highlight was the Chisumle-Demchok road at Umling La Pass, which has been constructed at a height of over 19,000 feet in Ladakh that also held the Guinness World Record of world’s highest motorable road.
- To boost tourism and facilitate the military personnel in border areas, Mr. Singh announced the setting up of ‘BRO Cafes’ at 75 places, as part of ‘Azadi Ka Amrit Mahotsav’ celebrations.
-Source: The Hindu