Polity

All (4049)Current Affairs (4038)Mains Practice (126)Mains PYQs by Subjects (40)

Political Party and Public Authority

Context: The Supreme Court agreed to hold a detailed hearing on a bunch of petitions seeking to bring political parties under the ambit of Right to Information (RTI) Act.

Public Authority 

According to Section 2(h) of the Right to Information (RTI) Act, 2005 

Public authority means any authority or body or institution of self- government established or constituted-

  • By or under the Constitution; 
  • By any other law made by Parliament; 
  • By any other law made by state legislature; 
  • By notification issued or order made by the appropriate Government, and includes any—
    • body owned, controlled or substantially financed; 
    • non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government;

Political Parties should be a Public Authority

  • They hold constitutional status and wield constitutional powers under the Tenth Schedule of the Constitution.
    • Under Article 102(2), if a member of a House belonging to a party vote or abstains from voting contrary to the whip issued by his party, he is liable to be disqualified from being a Member of the House.
  • They are substantially financed and exempted by the ‘appropriate Government’ in multiple ways
    • They are claiming tax exemption under section 13A of the Income Tax Act.
    • State is indirectly financing them
      • By way of free airtime on All India Radio and Door darshan. 
      • Under Rules 11 and 12 of the Registration of Electors Rules, 1960, two copies of the Electoral Rolls are supplied to the recognized Political Parties, free of cost. 
      • By allocating various houses/buildings/other types of accommodation to them either free of cost or at concessional rates. 
  • The Election Commission is an instrumentality of the State. Allotment of election symbols by the Election Commission to various them is suggestive of the public character of the Political Parties.

Political Parties should be a Public Authority

  • Revealing confidential information may have negative repercussions for them.
    • Like which candidate was selected for what reasons and what discussions happened within the political party, etc.
  • Free airtime during the elections is a popular practice in other democracies of the world.
  • Free provisioning of electoral rolls to them is a statutory requirement and may not be construed as substantial financing.
  • Allotment of plots of land/Government accommodation to them at economical rates cannot be construed as substantial financing. 
  • Tax exemption under section 13A given to them is a statutory requirement and cannot be construed as financing them by the Central Government.
  • If they are put under RTI political rivals may maliciously flood their Centre Public Information Officers with RTI applications.

On the basis of a petition filed by NGO Association for Democratic Reforms, the Central Information Commission (CIC), in 2013 and 2015, had declared national and regional political parties to be public authorities.

Law Commission of India in their 170th Report on “Reform of Electoral Laws (1999)” on Political Parties:

  • As democracy and accountability constitute the core of our constitutional system, the same concepts must also apply to and bind the Political Parties which are integral to parliamentary democracy. 
  • It is the Political Parties that form the Government, man the Parliament and run the governance of the country. Therefore, it is necessary to introduce internal democracy, financial transparency and accountability in the working of the Political Parties. 

A political party which does not respect democratic principles in its internal working cannot be expected to respect those principles in the governance of the country. It cannot be dictatorship internally and democratic in its functioning outside. So, the integrity in process of political parties should be balanced with the requirement of confidentiality of core processes and functions while maintaining transparency and accountability in political parties.

Senthilbalaji case [Detailed]

Context: The Supreme Court sought a response from the Enforcement Directorate (ED) to a plea by T.N. Minister Senthilbalaji challenging a Madras High Court order upholding his arrest by ED in a money-laundering case.

Senthilbalaji Case 

In this case, according to ED, Senthilbalaji and his close aides fraudulently manipulated the candidates' marks and approved their appointment orders in exchange for money from candidates. Most candidates who had paid the money neither got appointment orders nor their money back.

LKcF00qFX44 rp5Kr10ATfzSNXu2fvVMBYERI85oQ ZWZOFBKNlReKMHEFNfnRPG4hadLtoneUB0WuLF6BPYdD VHKvypVSn5 1qLDrGrLYE3YjlIfjQYpQLA36P5mlj6 gTwws77MMV8WlXXGheug

(Source: The Hindu)

Enforcement Directorate (ED)

The Directorate of Enforcement or the ED is a multi-disciplinary organization mandated with investigation of economic crimes and violations of foreign exchange laws.

History of ED  

  • The origin of this Directorate goes back to 1st May, 1956, when an ‘Enforcement Unit’ was formed in the Department of Economic Affairs.
  • Under the Foreign Exchange Regulation Act, 1947 (FERA ’47) the unit was created to deal with the violation of exchange control laws.
  • This unit, which had Delhi as its base of operations, was led by a Legal Service Officer serving as Director of Enforcement, with assistance from three Special Police Establishment Inspectors and an Officer on deputation from the Reserve Bank of India (RBI).
  • Initially it had two branches at Bombay and Calcutta.
1957Enforcement Unit was renamed as ‘Enforcement Directorate’A new branch was opened in Madras.
1960The administrative control of the Directorate was transferred from the Department of Economic Affairs to the Department of Revenue.
1973FERA’ 47 was repealed and replaced by FERA, 1973
1973-1977The Directorate was under the administrative jurisdiction of the Department of Personnel & Administrative Reforms.
1999FERA, 1973, which was a regulatory law, was repealed and in its place, a new law viz. the Foreign Exchange Management Act, 1999 (FEMA) came into operation w.e.f. 1st June 2000.
2002To comply with the International Anti Money Laundering regime, the Prevention of Money Laundering Act, 2002 (PMLA) was enacted and ED was entrusted with its enforcement w.e.f. 1st July 2005.
2018Due to the rising number of cases relating to economic offenders taking shelter in foreign countries, the Government passed the Fugitive Economic Offenders Act, 2018 (FEOA) and ED is entrusted with its enforcement with effect from 21st April, 2018.

Mandate of ED 

The Prevention of Money Laundering Act, 2002 (PMLA): 

It is a criminal law to prevent money laundering and to provide for confiscation of property involved in money laundering.

The Foreign Exchange Management Act, 1999 (FEMA): 

It is a civil law dealing with foreign exchange market in India. "ED has been given the responsibility to conduct investigation into suspected contraventions of foreign exchange laws and regulations, to adjudicate and impose penalties on those adjudged to have contravened the law," as per its website.

The Fugitive Economic Offenders Act, 2018 (FEOA): 

This law deals with Indian offenders who leave India to escape laws. This allows ED to attach properties of fugitive offenders who have escaped India. 

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA)

The ED is the sponsoring agency under COFEPOSA. Under this law, the ED is empowered to sponsor cases of preventive detention with regard to contraventions of FEMA, according to its website.

Functions of ED

  • To collect, develop and disseminate intelligence relating to violations of FEMA, 1999.
  • To investigate suspected violations of the provisions of the FEMA, 1999 relating to activities such as “hawala” foreign exchange racketeering, non-realization of export proceeds, non-repatriation of foreign exchange etc.
  • To adjudicate cases of violations of the erstwhile FERA, 1973 and FEMA, 1999.
  • To realize penalties imposed on conclusion of adjudication proceedings.
  • To handle adjudication, appeals and prosecution cases under the erstwhile FERA, 1973
  • To process and recommend cases for preventive detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA)
  • To undertake survey, search, seizure, arrest, prosecution action etc. against offender of PMLA offence.
  • To provide and seek mutual legal assistance to/from contracting states in respect of attachment/confiscation of proceeds of crime as well as in respect of transfer of accused persons under PMLA.

Investigation by ED

  • Whenever any offence is registered by a local police station, which has generated proceeds of crime over and above ₹1 crore, the investigating police officer forwards the details to the ED. 
  • If the offence comes under the knowledge of the Central agency, they can then call for the First Information Report (FIR) or the chargesheet if it has been filed directly by police officials. This will be done to find out if any laundering has taken place.

Difference between Police investigation and ED investigations

ED Police
Under PMLA which ED deals with, a statement recorded before an investigation officer (IO) is admissible in court as evidence.Statements to police are otherwise not admissible in court. Only statements recorded before a magistrate are admissible.
All offences under PMLA which ED deals are non-bailable.The Police deal with both bailable and non-bailable offences.
The burden of proof is on the accused.  In regular criminal law the principle of innocent until proven guilty is followed and the burden of proof is on the prosecutor.

Power of ED

  • The ED carries out search and seizure after it has decided that the money has been laundered, under Section 16 (power of survey) and Section 17 (search and seizure) of the PMLA.
  • On the basis of that the authorities will decide if arrest is needed as per Section 19 (power of arrest).
  • For ED it is not necessary to summon the person first and then start with the search and seizure.
    • Under Section 50 (powers of authorities regarding summons, production of documents and to give evidence etc.), the ED can also directly carry out search and seizure without calling the person for questioning. 
  • If the person is arrested, the ED gets 60 days to file the prosecution complaint (chargesheet).
  • If no one is arrested and only the property is attached, then the prosecution complaint along with attachment order is to be submitted before the adjudicating authority within 60 days.

F3UN7I5Ii8YXnJJ5snpephkmJ F1SWaHhp oKHRh4W BmQyo 0ZOksZHZ3oAm7

(Source: The Hindu)

Court cases related to ED 

Vijay Madanlal Choudhary v. Union of India

  • The court opined that all the provisions under PMLA have a reasonable nexus with the objects sought to be achieved by the Act to prevent money-laundering effectively.
  • Section 19 of the PMLA postulates the manner of arrest of a person involved in money laundering. The court ruled that the provision has been structured with inbuilt safeguards that prevent the possibility of abuse of power by ED officials.
  • While upholding Section 50 of the PMLA, the court said that the process envisaged by it is of inquiry nature against the proceeds of crime and is not an ‘investigation’ in the strict sense of the term for initiating prosecution, and therefore ED officials under the PMLA are not police officers.

Central Bureau of Investigation v. Anupam J. Kulkarni (1992) 

  • The Supreme Court laid down the law that no police custody can be allowed beyond the first 15 days from the date of arrest; any further remand during investigation can only be in judicial custody.

Dr. Manik Bhattacharya v. Ramesh Malik

  • In this case the court observed that interim protection granted against CBI action cannot operate against the ED even if the underlying allegations are similar.

P. Chidambaram v. Directorate of Enforcement (2019)

In this case the Supreme Court rejected a prayer for anticipatory bail with respect to an offence of money laundering and proceeded to grant custody to the ED. 

  • The court reasoned that in a case of money laundering which involves many stages of placement and layering of funds, a ‘systematic and analysed’ investigation is required which would be frustrating if pre-arrest bail is granted.

Challenges faced by enforcement directorate

  • The Complexity of financial crimes, such as money laundering, hawala transactions, and fraud, have become increasingly sophisticated and challenging to investigate.
    • Technology advancement like Cryptocurrencies, Dark web etc. also aggravated this challenge.
  • Challenge of Lack of international cooperation in certain cases are leading to the incomplete investigation and disposal. 
  • As the cases of financial crimes are increasing day-by-day there is challenge of lack of Capacity and resources for effective investigation.
  • In certain high-profile cases involving influential individual ED faces political pressure.
  • ED faces the challenge of lack of technology to address movement of funds across multiple jurisdictions and recording of many accounts on real time basis.
  • Lack of organisational capacity due to lack of skilled manpower, fund, infrastructure etc.
  • Challenge of overlapping jurisdiction with other agencies like Centre Bureau of investigations (CBI) etc. 

Suggestions

  • Strengthening investigation capabilities using the advance technology may make identification, investigation and disposal of the cases more effective. 
  • Collaboration and information sharing with domestic agencies and international agencies with threat identification markers for speedy identification of cases can be used. 
  • Special Fast track courts can be established for the economic frauds for faster disposal of the cases.
  • Risk based approach can be adopted for the earlier disposal of cases with high severity and high potential to harm the economy of India.
  • Providing protection to whistle-blower in case of providing insider information may increase the identification and reporting of the cases. 

Zero FIR

Context: In Manipur, "Zero First Information Reports" have been made about alleged rape, murder, kidnapping, and sexual harassment.

image 82

Zero FIR (ZFR)

When a police station receives a complaint regarding an alleged offence that has been committed in the jurisdiction of another police station, it registers an FIR and then transfers it to the relevant police station for further investigation. This is called a Zero FIR.

  • No regular FIR number is given. 
  • After receiving the Zero FIR, the revenant police station registers a fresh FIR and starts the investigation.
  • This puts a legal obligation on the police to begin investigation and take quick action without the excuse of absence of jurisdiction.

History of ZFR

  • The provision of Zero FIR came up after the recommendation in the report of the Justice Verma Committee.
  • The committee was constituted to suggest amendments to the Criminal Law in a bid to provide for faster trial and enhanced punishment for criminals accused of committing sexual assault against women.

Objective of ZFR

  • The objective of a Zero FIR is to ensure the victims that are unable to get a police complaint registered in one area can do it in another.  
  • The provision is meant to provide speedy redressal to the victim so that timely action can be taken after the filing of the FIR.

First Information Report (FIR)

The term first information report (FIR) is not defined in the Indian Penal Code (IPC), Code of Criminal Procedure (CrPC), 1973, or in any other law, but in police regulations or rules, information recorded under Section 154 of CrPC is known as First Information Report (FIR).

Section 154 (“Information in cognizable cases”) says:

“every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe”.

Three important elements of an FIR:

  • The information must relate to the commission of a cognizable offence. 
  • It should be given in writing or orally to the head of the police station.
  • It must be written down and signed by the informant, and its key points should be recorded in a daily diary.

Filing of a FIR 

  • FIR can be filed by any person. 
  • He need not necessarily be the victim or the injured or an eye-witness. 
  • FIR may be merely hearsay and need not necessarily be given by the person who has firsthand knowledge of the facts.

Cases related to FIR 

Lalita Kumari v. Government of U.P.Supreme court observed that it is mandatory to register a FIR under Section 154 if the complaint is related to a cognizable offence.

Rajasthan’s Minimum Income bill

Context: Rajasthan government tabled Minimum Guaranteed Income Bill, 2023 to cover the entire adult population of the state with guaranteed wages or pension.

image 78

Major Provisions of the Bill:

  • Minimum guaranteed income: It will ensure that each adult person in the state receives a minimum income for 125 days annually. State government announced an enhancement to the existing urban employment scheme (Indira Gandhi Shahri Rozgar yojana), increasing the employment guarantee from 100 to 125 days per family. Additionally, the state will complement MGNREGA's 100 days by offering employment opportunities for an extra 25 days in rural regions.
  • Guaranteed employment: The state will appoint a designated program officer, who will hold the position of at least a Block Development Officer in rural areas and an Executive Officer of the local body in urban areas to implement the act. If government fails to provide employment within 15 days, then there is a provision of unemployment allowance.
  • Guaranteed Social Security Pension: It ensures that individuals falling into categories such as old age, differently abled, widow, and single woman with prescribed eligibility will receive a pension. The pension amount will also see an incremental increase of 15% per annum.

Analysis of the Bill:

Benefits:

  • State has taken the rights-based approach of providing employment towards building social security net.
  • It will provide financial stability to the individuals who are often forced to do menial jobs for sustenance.
  • It will help in reducing poverty by ensuring minimum guarantee income to every adult individual in the State.
  • Empowerment of marginalized sections of society such as aged, widows, differently abled, with the provision of pension.
  • #Best Practice: Netherlands – Minimum Income Scheme (resulted into improvements in health and education indicators of targeted sections).

Issues associated with Minimum Guarantee Income:

  • In urban areas, the demand for work is relatively stable throughout the year, unlike in rural areas where demand is often seasonal and addressed through schemes like MGNREGA. This stability can present challenges while designing a Minimum Guarantee Income. 
  • The availability and suitability of public works projects in urban settings, as well as the capacity limitations of urban local bodies, raise important questions about the implementation of this legislation in urban regions.
  • It will increase fiscal burden on State government, as Rajasthan announced freebies worth 8.6% of its own tax revenue in 2022-23 (RBI estimates).
  • Such schemes/legislations reflect the inability of the economy to create productive forms of employment at the scale required to alleviate social pressures.

Roadmap for future

  • Consensus among stakeholders: Building consensus among policymakers, academics, economists, and other stakeholders is essential for successful implementation. Constructive dialogue and informed debate can help address concerns and refine the Minimum guaranteed income proposal.
  • Mechanism for funding: Determining sustainable funding mechanisms is crucial. Options could include redirecting existing welfare program budgets or exploring alternative sources of revenue generation.

Job creation: The focus should be on creating employment opportunities for people with lower skill levels.

Issue of Reservation in Promotion for PwD

Context: A case of reservation in promotion for Persons with a disability is pending in the Supreme Court of India for many years which is equated with denial of justice.

image 57

Persons With Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995, or the PwD Act and Reservation

  • The Persons With Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995, or the PwD Act, first recognised the right of the disabled person to be employed and promoted in government jobs on an equal basis with others.
  • To ensure this, it introduced a 3% reservation for the disabled in employment.
  • The reservation of seats for the disabled existed in Groups C and D before the introduction of the PwD Act.
  •  Now, the Act extended reservation for the disabled in Groups A and B — a progressive step towards ensuring the dignity of and equality for the disabled at all levels including career advancement in government jobs.
  • In addition to this, it also fixed the percentage of reservation of seats at 3%, which opened the gates of recruitment to disabled people in different sectors of the government.
  • An integral part of the reservation
  • Reservation for the disabled in promotion in all groups was first interpreted as an integral part of reservation by the Department of Personnel and Training, order of  1998.
  • It happened after Parliament enacted the provision of reservation of promotion for Scheduled Castes (SC) and Scheduled Tribes (ST), reversing the Supreme Court of India verdict in Indra Sawhney Etc. vs Union Of India And Others, Etc., where reservation in promotion for SCs and STs was withdrawn.
  • The Department of Personnel and Training interpreted the Parliament enactment to apply to persons with disabilities also as they are from the marginalised sections of society as well, and hence enjoy similar protection from the state of law.

Withdrawal of reservation promotion

  • Unfortunately, another Department of Personnel and Training order of 2005 withdrew the reservation of the disabled in promotion in Groups A and B.
  • The department’s reversal of its order was not only shocking but also reflected the apathetic and hostile attitudes of the administration and government towards the needs and aspirations of the disabled.
  • The department’s order of 1998 opened the doors of opportunity for the disabled to progress in their organisations in keeping with the spirit of the PwD Act.
  • But the department’s order of 2005 may be understood by the ruling dispensation as an expression of denial of equal space and place to the disabled at the higher level in organisations.
  • In reaction to this order, a case was filed in the Supreme Court in 2008, by Rajeev Gupta against the Union of India.

Court’s observation on a reservation in promotion

  • After deliberations and hearings for around eight years, it was adjudicated to grant reservation in promotion for the disabled in Groups A and B, which, regrettably, had been taken back by the Department of Personnel and Training order of 2005.
  • The final judgment was made in 2016, granting reservation in promotion in Groups A and B.
  • But the Government of India did not make any effort or give any direction to implement the judgment.
  • Mr Gupta then filed a case of contempt in the Supreme Court in 2017; the hearing continues.
  • The government counsel filed an affidavit arguing for the stopping of the proceedings in the contempt petition by Mr. Gupta citing the presence of another case, i.e., Siddaraju vs State of Karnataka & Ors. in the Supreme Court, in 2017.
  • This affidavit by the Government of India is an attempt to cause hindrance to the result of the contempt petition.
  •  As a result, the contempt petition is still in the process of hearing. The Civil Appeal in Siddaraju vs State of Karnataka & Ors., in its several hearings, also upheld the reservation in promotion for the disabled and made null and void the Department of Personnel and Training order of 2005.
  • It is important to note that in both cases, the Court challenged the decision in the Indra Sawhney judgment by noting that Article 16(4) does not disable the Indian state from providing preferential treatment such as reservation to the backward classes of citizens under Article 16(1).
  • However, such differential/preferential treatment should not be on the grounds of caste, or religion among other things.
  • The Court also noted that the basis of providing reservation to the disabled is a physical disability which is not forbidden under Article 16(1) which guarantees equality of opportunity in state employment or office.
  • Therefore, the right of getting a reservation in promotion for persons with disabilities could be ensured under Article 16(1) of the Constitution.

Government’s response

  •  A miscellaneous application, Siddaraju vs State of Karnataka & Ors., was filed by the government, in this case for clarification on the ways and means to implement reservation in promotion for the disabled.
    But the miscellaneous application was an attempt to delay the process of implementation of reservation in promotion for the disabled.
  • The application was subsequently dismissed in 2021.
  • The government came up with another order through the Department of Personnel and Training on May 17, 2022.
  • Though the order made important clarifications on the reservation of seats for the disabled in recruitment, it failed to make any mention of reservation for the disabled in promotion since 1996, which should be the case as in the PwD Act, 1995 and the department’s order of 1998 which quite clearly provided for reservation for the disabled in promotion in Groups A and B since then.
  • This denial by the government was another attempt to delay the process of justice for the disabled, ultimately leading to the denial of justice.
  • The judiciary has played a significant role in granting justice and equality to the disabled, especially after the enactment of the PwD Act, of 1995.

Is the Collegium System Evolving?

Context: Supreme Court of India under D.Y. Chandrachud has taken many initiatives to streamline the collegium system.

Constitutional Provision for Appointment of Judiciary 

Art 124(2)

Every Judge of the Supreme Court shall be appointed by the President by warrant executed under his hand and seal, after consultation with such judges of the Supreme Court and the High Courts of the States as the President may deem necessary for the purpose and shall hold office until he attains the age of 65 years.

History of Collegium System 

The procedure was evolved through three Supreme Court (SC) judgments that are popularly known as the “Three Judges Cases”. 

  • S.P Gupta Case or First Judges case:
    • The Supreme Court discussed 2 major points during the proceedings of this case whether the word “consultation” in the constitutional article 124 mean “concurrence”; Supreme court denied this, saying that Consultation does not mean concurrence under Art 124. 
    • The President was not bound to appoint a candidate based on the consultation of the Supreme Court. 
  • Supreme Court Advocates-on-Record Association v Union of India (1993) or Second Judge Case:
    • In this case, the Supreme court overruled its earlier verdict and changed the meaning of consultation to concurrence. 
    • Thus, binding the President of India with the consultations of the Chief justice of India. This resulted in the birth of the Collegium System. 
  • Third Judges Case or In re Special Reference No. 1 of 1998: 
    • In the year 1998, the presidential reference to the Supreme court was issued questioning the meaning of the word consultation in articles 124, 217, and 222 of the Constitution. 
    • The chief justice won’t be the only one as a part of the consultation process. Consultation would include, a plurality of judges, a collegium of 4 senior-most judges of the Supreme court and CJI.
    • Even if 2 of the judges are against the opinion, the CJI will not recommend it to the government. 

Memorandum of Procedure (MOP)


The MoP is the list of rules and procedures for the appointment of judges to the Supreme Court and the high courts. It is a document framed by the government and the judiciary together.

After the three judgments, it was framed on 30 June 1999. It contains the following: 

  • All appointments of judges to the Supreme Court must be recommended by the Collegium, composed of the Chief Justice of India and the four senior-most judges of the Supreme Court. 
  • CJI would take into consideration the views of the senior-most Supreme Court judge who comes from the same high court as the recommended person. 
  • The recommendation is then sent to the central government. The law minister will forward it to the prime minister, who is to advise the President on the appointment.
  • The Government can send back the name of the judge recommended by the collegium for reconsideration only once. If the collegium again sends it back the government has to appoint, the recommended candidate.
  • Fair representation shall be given to various High Courts for the selection of Chief Justices. The consideration for appointment of Chief Justices shall be based on the criterion of seniority subject to merit and integrity.

Criticism of the Collegium System

  • The informal manner in which the Supreme Court Collegium conducts its business, which allows for biases of nepotism and favouritism to creep in.  
  • The informality and non-transparency in its dealings, and the non-recording (or non-publication) of minutes of the meetings leads to bias being reflected in the collegium’s recommendations.  
  • The issue of judges from smaller high courts rarely getting the opportunity to serve at the Supreme Court. As the collegium lacks the representation from these high courts.
  • The collegium does not appear to be inclined to ensure diversity of thought and different viewpoints.  
  • Many critics argued that collegium system deteriorated the balance of Separation of Powers, as Judiciary is appointing himself rather than executive as mentioned in the constitution.

Improvements made in Collegium System 

To maintain the transparency and effectiveness of the collegium system, while recommending appointments to the Supreme Court the Collegium has taken into consideration the following aspects: 

  • The seniority of Chief Justices and senior puisne Judges in their respective parent High Courts as well as overall seniority of the High Court Judges.
  • The merit, performance and integrity of the judges under consideration.
    • The judgments of the candidate are circulated among the members of the Collegium. 
    • The Centre for Research & Planning of the Supreme Court also prepares a compilation of “relevant background material to assist the Collegium”.
    • The Judgment Evaluation Committee goes through the judicial work of the candidates. 
    • The judgments are graded, with the very best receiving an “outstanding” grade.
  • The need to ensure diversity and inclusion in the Supreme Court.
    • The Collegium further explained that “diversity and inclusion” referred to 
  • The representation of High Courts, which are not represented or are inadequately represented, in the Supreme Court.
  • Appointment of persons from marginalised and backward segments of society.
  • Gender diversity.
  • Representation of minorities.

Global Cases 

United Kingdom 

  • The Judicial Appointments Commission, an independent organisation in the United Kingdom, is in charge of selecting judges for courts and tribunals. 
  • Three of its 15 members come from the community of judges, while the remaining members, including the chairman, are chosen through an open recruitment process. 

United States 

  • In the United States, the President appoints judges to the federal courts with the Senate’s advice and consent. 

South Africa

  • In South Africa, the Judicial Service Commission advises the President to choose judges.

National Judicial Appointment Commission (NJAC)  

Parliament enacted the 99th Constitutional amendment act to the constitution of India which provide for a National Judicial Appointments Commission (NJAC). The act said that the appointment of judges in Supreme Court and High Courts would be done under the provisions of the NJAC instead of the collegium. A provision was made to make a commission of six people members:

  • Chief Justice of India
  • Union Law Minister
  • The two senior-most justices of the Supreme Court; and
  • Two experts
    • The selection of the two experts was to be done by a three-member panel consisting of the Prime Minister, the Leader of the Opposition, and the Chief Justice of the Supreme Court.  

In October 2015, the Supreme Court struck down the NJAC Act, terming it a “violation of the basic structure of the Constitution” and compromising the independence of the Judiciary.

Jharkhand Governor sets his sights on Tribes Advisory Council

Context: Jharkhand has seen tensions escalate between the Governor and the State government over the TAC on the question of Governor’s power of constituting and making rules for the Tribal Advisory Council (TAC) under the Fifth Schedule being discretionary. 

image 56

Constitutional Provision

Art 244(1) of Part X: The provisions of the Fifth Schedule shall apply to the administration and control of the Scheduled Areas and Scheduled Tribes in any State other than the States of Assam, Meghalaya, Tripura and Mizoram.

Part B of Fifth Schedule deals with “Administration and Control of the Scheduled Areas and Scheduled Tribes” provides for the following:

“There shall be established in each State having Scheduled Areas therein and, if the President so directs, also in any State having Scheduled Tribes but not Scheduled Areas therein, a Tribes Advisory Council consisting of not more than twenty members of whom, as nearly as may be, three-fourths shall be the representatives of the Scheduled Tribes in the Legislative Assembly of the State. Provided that if the number of representatives of the Scheduled Tribes in the Legislative Assembly of the State is less than the number of seats in the Tribes Advisory Council to be filled by such representatives, the remaining seats shall be filled by other members of those tribes.”

Tribal Advisory Council (TAC)

  • Each state which has scheduled areas should constitute a TAC.
  • States which have schedule tribe but not the schedule areas can also constitute TCA after President's direction.
  • TCA can have at most 20 people of which 3/4th members (at most 15) should be the representatives of schedule tribe in state legislative assembly.
  • If the number of representatives in legislative assembly is less than required, then the remaining seats should be filled by the other member of the tribal community.

Function of TAC

It shall be the duty of the Tribes Advisory Council to advise on such matters pertaining to the welfare and advancement of the Scheduled Tribes in the State as may be referred to them by the Governor .

Part C of Fifth Schedule deals with “Schedule Area” provide that 

“The President is empowered to declare an area to be a scheduled area. He can also increase or decrease its area, alter its boundary lines, rescind such designation or make fresh orders for such redesignation on an area in consultation with the governor of the state concerned.”

Part B of Fifth schedule also says that, 

The Governor may make rules prescribing or regulating, as the case may be,

  • The number of members of the Council, the mode of their appointment and the appointment of the Chairman of the Council and of the officers and servants thereof.
  • The conduct of its meetings and its procedure in general.
  • All other incidental matters.

Role of Governor with respect to TAC

  • Fifth Schedule grants extensive powers to the Governor who, by public notification, may direct that a law enacted by the Parliament or the State Legislative Assembly shall not apply to a Scheduled Area, or may apply subject to certain amendments or restrictions as he/she specifies. 
  • The Governor may only make such regulations on consultation with the concerned Tribes Advisory Council and subject to the final assent of the President.

Under this Jharkhand government has notified the Jharkhand Tribes Advisory Councils Rule, 2021 which contains the provision of Composition of the TAC

  • TAC will be an 18-member body.
  • Chief Minister of the state Jharkhand is the ex-officio chairman and member of the council. 
  • The Minister of Scheduled Tribes Welfare, shall be Ex-officio Vice Chairman and member of the council.

Contemporary Challenges faced by TAC

  • Despite mandate of the Constitution there was a delay in establishing the TACs, which led to potential encroachment in their area of governance by other bodies.
  • As both the cabinet and the TAC are headed by the same person, it becomes very difficult for the TAC to overturn a decision taken by the cabinet, even if it was not in the best interest of tribal communities in scheduled areas.
  • There is a near complete usurpation of TACs by the political parties in power, as observed by Xaxa Committee.
  • Due to the presence of high forest coverage and rich mineral sources, Schedule areas have a very high business potential which make them vulnerable to the pressure politics of corporate lobby which decrease TAC’s influence in policy making.
    • Governments of eight states, where most of the Fifth Schedule areas are located, are unwilling to touch the subject which hurts big business interests.
  • The Bhuria Commission Report (2002-04) mentioned that the State Government do not put any important matters to the Council for advice.
    • In all these years of its functioning, the TACs have rarely made any significant policy proposals or recommendations on tribal and developmental issues.
  • Even when issues are taken up by the TAC, it has been noted that there is rarely any sustained and consistent engagement with the matter in the form of follow-ups and field visits.
  • As per the minutes TAC’s meetings, none of the TACs discussed the issue of land alienation among tribals effectively.
  • The concerned departments do not always submit Action Taken Reports to the TAC and therefore, the earlier decisions and recommendations of the TACs, even when implemented, are not revisited in subsequent meetings.

Constitutional Provision regarding office of Governor 

  • Art 154(1): The executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution
  • Art 163(1): There shall be a council of Ministers with the chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this constitution required to exercise his functions or any of them in his discretion.

Court Cases

B.K. Manish & Others v/s State of Chhattisgarh & Others

In this case, Chhattisgarh High Court held that the Governor could not exercise his discretion as a matter of discretion for constituting and making rules for the TAC under the Fifth Schedule. Which was later upheld by the Supreme Court.

Way Forward

  • Political interference in the functioning of the TACs should be minimise and they should be provided with the adequate resources to sustain the grass-root governance.
  • The economic development in the region should be balanced with the tribal interest for which TAC can be used to promote sustainable development in the schedule areas.

SC asks ED chief to quit, but upholds amendments

Context: In a recent development, the Supreme Court has asked Sanjay Kumar Mishra, the Director of the Enforcement Directorate (ED), to resign four months before his third extension, which was originally scheduled to end in November.

image 39
  • Alongside this decision, the court upheld certain statutory amendments that allow for the prolongation of the tenures of Directors of the Central Bureau of Investigation (CBI) and the ED in a gradual manner.
  • Previously, the CBI and ED chiefs held fixed tenures of two years, but the amendments introduced in 2021 to the Central Vigilance Commission Act, the Delhi Special Police Establishment Act, and the Fundamental Rules now permit them to receive three annual extensions.

Directorate of Enforcement:

The Directorate of Enforcement or the ED is a multi-disciplinary organization mandated with investigation of economic crimes and violations of foreign exchange laws. 

  • The origin of this Directorate goes back to 1956, when an ‘Enforcement Unit’ was formed in the Department of Economic Affairs for handling Exchange Control Laws violations under Foreign Exchange Regulation Act, 1947.
  • It was headed by a Legal Service Officer, as Director of Enforcement, assisted by an Officer drawn on deputation from Reserve Bank of India (RBI). 
  • In 1960, the administrative control of the Directorate was transferred from the Department of Economic Affairs to the Department of Revenue.
  • With the passage of time, FERA, in 1947 was repealed and replaced by FERA, in 1973. Presently, the Directorate is under the administrative control of the Department of Revenue, Ministry of Finance, Government of India.
  • With the onset of the process of economic liberalization, FERA, 1973, which was a regulatory law, was repealed and in its place, a new law viz. the Foreign Exchange Management Act, 1999 (FEMA) was enacted in 2000.
  • Further, in tune with the International Anti Money Laundering regime, the Prevention of Money Laundering Act, 2002 (PMLA) was enacted and ED was entrusted with its enforcement in 2005.
  • Recently, with the increase in number of cases relating to economic offenders taking shelter in foreign countries, the Government has passed the Fugitive Economic Offenders Act, 2018 (FEOA) and ED is entrusted with its enforcement in 2018. 

Statutory Functions:

Its functions include enforcing acts such as the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA), the Foreign Exchange Management Act, 1999 (FEMA), the Prevention of Money Laundering Act, 2002 (PMLA), and the Fugitive Economic Offenders Act, 2018 (FEOA).

  • The Prevention of Money Laundering Act, 2002 (PMLA): It is a criminal law enacted to prevent money laundering and to provide for confiscation of property derived from, or involved in, money-laundering and for matters connected therewith or incidental thereto. Under the PMLA, the ED carries out searches and seizures of properties, money, and documents deemed to be involved in money laundering offenses. It has the power to arrest individuals if necessary. The ED can also directly carry out search and seizure operations without prior summons under Section 50 of the PMLA. The agency has jurisdiction over individuals, legal entities, and public servants involved in offenses related to money laundering. However, the ED cannot initiate action on its own and requires a complaint from another agency or the police to begin an investigation
  • The Foreign Exchange Management Act, 1999 (FEMA): It is a civil law enacted to consolidate and amend the laws relating to facilitating external trade and payments and to promote the orderly development and maintenance of foreign exchange market in India. ED has been given the responsibility to conduct investigation into suspected contraventions of foreign exchange laws and regulations, to adjudicate and impose penalties on those adjudged to have contravened the law.
  • The Fugitive Economic Offenders Act, 2018 (FEOA): This law was enacted to deter economic offenders from evading the process of Indian law by remaining outside the jurisdiction of Indian courts. It is a law whereby Directorate is mandated to attach the properties of the fugitive economic offenders who have escaped from the India warranting arrest and provide for the confiscation of their properties to the Central Government.
  • Sponsoring agency under COFEPOSA: Under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA), the Directorate is empowered to sponsor cases of preventive detention with regard to contraventions of FEMA.

Recent criticism of the ED

  • Allegations of misuse of the PMLA by the government and the agency itself.
  • Concerns have been raised about the inclusion of "ordinary" crimes under the PMLA and the attachment of assets belonging to innocent individuals.
  • Transparency and clarity regarding the selection of cases to investigate have also been questioned.
  • The Enforcement Case Information Report (ECIR) - an equivalent of the FIR - is considered an “internal document” and not given to the accused.
  • The initiation of an investigation by the ED has consequences that have the potential of curtailing the liberty of an individual.
  • Additionally, the efficiency and low conviction rates of the ED under the PMLA have been a subject of controversy.

The amendments of 2021: 

  • President promulgated two ordinances that allowed the Centre to extend the tenures of the directors of the Central Bureau of Investigation and the Enforcement Directorate from two years to up to five years.
  • Amendments in DSPE act: Provided that the period for which the Director of CBI holds the office on his initial appointment may, in public interest, on the recommendation of the Committee (the committee led by the Prime Minister and leader of Opposition and CJI as members) and for the reasons to be recorded in writing, be extended up to one year at a time. It also provided that no such extension shall be granted after the completion of a period of five years in total including the period mentioned in the initial appointment.
  • Amendments in CVC act: Provided that the period for which the Director of Enforcement holds the office on his initial appointment may, in public interest, on the recommendation of the Committee (comprising of CVC chief, Revenue and Home Secretaries among others) and for the reasons to be recorded in writing, be extended up to one year at a time. It provided further that no such extension shall be granted after the completion of a period of five years in total including the period mentioned in the initial appointment.

Criticisms of the amendments:

  • The government could exploit the possibility of service extensions as a means to manipulate the CBI and ED Directors into aligning with its interests.
  • It was argued that this dynamic would exert pressure on the Directors, leading them to comply with the government's wishes in order to secure further extensions.
  • The amendments contradicted the fundamental objective of safeguarding the Central investigative agencies from government influence.

Way forward: 

  • Consensus between the adjudicating authority and the ED officers should be reached to ensure compliance with the constitutional provisions of the PMLA, making investigations more transparent.
  • The ED's expanded powers should be accompanied by a commitment to resolve cases expeditiously, allowing for speedy trials and convictions.
  • Regular scrutiny of the agency's operations and ongoing evaluation can lead to improvements in the conviction rate.
  • Any gaps or deficiencies can be addressed through suitable legislation, executive action, or revised orders from the apex court.

Striking a blow against affirmative action in America

Context: In a ground-breaking decision, on June 29, 2023, in Students for Fair Admissions vs Harvard, the United States Supreme Court (SCOTUS) deemed the race-conscious admission policies at Harvard and the University of North Carolina (UNC) as unconstitutional and violative of the Equal Protection Clause in the Fourteenth Amendment.

image 19

Judgement of US Supreme Court 

  • Chief Justice John Roberts stated, “Eliminating racial discrimination means eliminating all of it.”
  • SCOTUS justified its verdict with four reasons.
    • First, it emphasised that the equal protection clause is colour-blind, and the term “equal protection” means identical treatment. Thus, race-based affirmative action contravenes this promise.
    • Second, it affirmed that any such contravention could only be justified if the state has a compelling goal, and affirmative action is absolutely necessary to attain it. The state must articulate this goal clearly to enable judicial scrutiny. The court found Harvard and UNC’s objectives, such as “training future leaders”, as commendable but vague.  
    • Third, the Court reiterated an earlier ruling that affirmative action policies should have a ‘sunset clause’. However, both Harvard and UNC lacked this.  
    • Lastly, the court held that affirmative action should not rely on racial stereotypes or disadvantage anyone based on race — two aspects it identified as problematic in this case.

Concept of Formal Equality and Substantive equality 

Formal Equality 

  • Formal Equality is the view that formal rules should not exclude individuals from acheiving certain goals by making reference to personal characteristics that are arbitrary, such as race, socio-economic class, gender, religion and sexuality. 
  • In addition, Formal Equality forbids reference to proper names in formal rules. 
  • The reason being equality cannot mean different things for different individuals. This applies even for affirmative action that may be justified to undo the historic discrimination faced by African Americans or Hispanics (or other groups). 
  • Thus, measures which treat one race as distinct from another in any manner, including a preference in education, are viewed strictly and against equality. This narrow view of equality is called formal equality.

Substantive equality 

  • This Concept of equality focuses on the outcomes and impacts of laws and policies. 
  • Substantive equality goes far beyond creating formal legal equality for disadvantaged sections (where all are equal under the law) and means that governments are responsible for the impact of laws. 
  • This requires governments to tailor legislation to respond to the realities of race, caste, sex, classes etc.
  • Striving for substantive equality also places a responsibility on governments to implement laws, through responsive governance and functioning justice systems that meet disadvantage sections’ needs. 
  • It recognizes that because of historic discrimination, disadvantage sections of society do not start on an equal footing.

Comparison of Affirmative Actions in India and USA 

Constitutional Provision in USA 

  • The U.S. Constitution is silent on it, prohibiting only the denial of “equal protection”, leading to varied interpretations of this amorphous phrase depending on the sitting Justices. 
  • To today’s majority, it means exactly what it meant in the 19th century: colorblindness. To dissent, it means consciously treating historically oppressed races differently.

Constitutional Provision in India

  • The Indian Constitution expressly allows affirmative action in favour of backward classes in matters of education (Article 15) and jobs (Article 16). 
  • Article 16 expressly permits “reservations” in jobs, something that is unique to the Indian Constitution.
  • In fact, this reservation provision was part of the original Constitution as enacted on January 26, 1950, unlike affirmative action in education which was introduced the next year through the First Amendment. 

Difference between the notion of equality in India and US

Notion of equality in USANotion of equality in India
US courts debate as to whether affirmative action is fundamentally permissible under the US constitution India’s courts routinely debate the granular questions: what percentage of seats or posts can the state reserve? How should the beneficiary classes be identified? India’s courts do not debate as to whether affirmative action is fundamentally permissible, for the Constitution conclusively answers that question.
US follows a narrow view of equality called a formal equality that prevents U.S. courts from allowing broad-based race conscious measures. India follows substantive notion of equality and that facilitates Indian Courts to pass pro-reservation judgments, in sync with the constitutional mandate.
The U.S. seeks to eliminate all distinctions based on race universally, the reason being equality cannot mean different things for different individuals.India, on the other hand, does not treat all distinctions of race or caste alike. Certain classes such as the Scheduled Castes, Scheduled Tribes and Backward Classes who have faced discrimination in the past are not considered on a level field with others.
Reservation is considered as antithetical to equality, but a tool that furthers equality.Reservation is not antithetical to equality, but a tool that furthers equality.

Test of constitutionality of Affirmative actions in US 

  • The U.S. has strict scrutiny of all measures that create distinctions based on race. 
  • This means a measure is constitutionally permissible only if it furthers a compelling state interest and is narrowly tailored to achieve such interest. 
  • Any broad measures are viewed with great caution so that non-minority candidates are not disadvantaged at the cost of minority.

Test of constitutionality of Affirmative actions in India

  • Under Art 15 and Art 16, ‘Education’ and ‘public employment’, respectively are enshrined in the Constitution as legitimate goals for reservation.
  • Thus, the standard adopted by courts focuses on whether the class seeking reservation is socially and educationally backward, and inadequately represented.
    • In employment, this requires proof of quantifiable data from the state. 
  • If these two criteria are met, even broad reservation measures are constitutional and the interests of the non-minority are instead taken care of by capping reservations at 50%.

Supreme Court of India have repeatedly sounded caution that foreign decisions should not be relied on without a proper appreciation of the context in which they were rendered. However, the emphasis on a sunset clause, akin to the Indian Supreme Court’s suggestion in the Economically Weaker Section (EWS) Reservations case, could potentially resonate.

Cabinet gives nod to Data Protection Bill

Context: The Digital Personal Data Protection Bill, 2022, a draft of which was floated in November, is expected to be tabled in Parliament’s Monsoon Session that begins on July 20. The Union Cabinet approved the draft Bill on Wednesday.

image 17

Data Protection 

Data protection is the process of securing digital information while keeping data usable for business purposes without trading customer or end-user privacy. 

  • Data protection is becoming more intricate as the number of devices to monitor and protect expands. Today, it includes IoT devices and sensors, industrial machines, robotics, wearables and more. 
  • Data protection helps reduce risk and enables a business or agency to respond quickly to threats.

Need for data protection 

  • Data protection is important because the total number of computing devices increases each year, and computing is now more complex which connects large number of individuals breach of their data will have disastrous consequences.
  • The implications of a data breach or data loss incident can bring organizations to their knees. Failure to protect data can cause financial losses, loss of reputation and customer trust, and legal liability, considering most organizations today are subject to some data privacy standard or regulation.
  • Personal data reveals a lot about an individual, his thoughts, and his life. This data can easily be exploited to harm him, and that’s especially dangerous for vulnerable individuals and communities, such as journalists, activists, human rights defenders, and members of oppressed and marginalized groups. That is why data must be strictly protected.

Status of Data Protection in India

  • Information Technology Act of 2000 was passed to uplift e-governance, provide legal backing for online transactions, and fight cybercrime.
  • The Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 (“SPDI Rules”) which governs the “collecting, receiving, possessing, storing, dealing, handling, retaining, using, transferring, disclosing sensitive personal data or information, security practices and procedures for handling personal information”.
    • The rules define sensitive personal data under Rule 3.
    • Under Rule 6, a body corporate is not permitted to publish or disclose such data or information to any third party without the information provider’s prior consent.
  • Hon’ble Supreme Court of India established the right to privacy as a fundamental right under Article 21 of the Constitution of India as part of the right to life and personal liberty in the case of Justice K.S. Puttaswamy v. Union of India (2017), also called the “privacy judgement.”
  • Section 8(1)(j) of the Right to information act, 2005 deals with the non-disclosure of personal information. 

Need for data protection laws in India

  • In India, the confluence of multiple regulations for different areas produces ambiguity, which is one of the key reasons for data breaches. 
  • In India, there is no single codified law that addresses all areas of data privacy and keeps track of the penalties that should be applied.
  • When dealing with situations involving data breaches and cybersecurity, the enforcement mechanism typically confronts a number of implementation challenges in the absence of a codified law.
  • Since India is a nation-state, the data of the citizens is considered a national asset. 
  • Depending on India’s security and geopolitical objectives, this national asset may need to be protected and stored within national borders. That would include not only the corporates, but also Non- Governmental Organisations and governmental bodies. For the regulation of which India need a law.
  • Article 38, Which is a Directive Principles of State Policy, is concerned with the general well-being of citizens. Privacy and data protection are fundamentally linked to the welfare state. 
  • Article 51 also specifies that the State shall seek to encourage conformity to treaty obligations and international law in order to foster international peace and security. India being a member to several international organisations that focus on data protection mechanisms like the United Nations Commission on International Trade should make a comprehensive law on data protection.

Draft Digital Personal and Data Protection (DPDP) Bill 2022

The purpose of the bill is to provide for the processing of digital personal data in a manner that recognizes both the right of individuals to protect their personal data and the need to process personal data for lawful purposes, and for matters connected therewith or incidental thereto.

The data protection legislation specifies norms on management of personal data of Indian residents and requires explicit consent from people whose data is collected and used.

Key Provisions of DPDP Bill

  • Bill requires entities that collect personal data — called data fiduciaries — to maintain the accuracy of data, keep data secure, and delete data once their purpose has been met.
  • Bill defines “Data Principal” as an individual to whom the personal data relates and where such individual is a child includes the parents or lawful guardian of such a child.
  • In Bill “Data Processor” means any person who processes personal data on behalf of a Data Fiduciary. 
  • Data Protection Board of India
    • It consists of technical experts constituted by the government
    • if board has reason to believe that their personal data has been used without their consent - for example, cell phone numbers or Aadhaar details. The Board will institute an investigation into the breach.
  • Bill has provision regarding “Data Protection Officer” who will represent the Significant Data Fiduciary under the provisions of this Act and be based in India
    • The Data Protection Officer will be an individual responsible to the Board of Directors or similar governing body of the Significant Data Fiduciary and will be the point of contact for the grievance redressal mechanism under the provisions of the bill. 
  • DPDP Bill also outlines practices for entities that collect personal data, how that data should be stored and processed to ensure there is no breach, as well as rights of the persons whose data is being used.
  • Bill has a clause for offering voluntary undertaking in case an entity wants to admit that a breach has occurred and pay penalty as mitigation measure to avoid court litigation.
    • The fines would be levied by the Data Protection Board of India, which would be set up under the Act.

Benefits of the DPDP Bill

  • Once passed, the Bill will be critical in India's trade negotiations with other countries, particularly with the European Union, whose General Data Protection Regulations (GDPR) are among the most comprehensive privacy rules in the world.
  • The Digital Personal Data Protection Bill, 2022, is a crucial pillar of the overarching framework of technology regulations the Centre is building, which also includes the Digital India Bill — the proposed successor to the Information Technology Act, 2000, the draft Indian Telecommunication Bill, 2022, and a policy for non-personal data governance.

Issues with the DPDP Bill 

  • The bill empowers the executive to draft rules and notifications on a vast range of issues, which increases executive discretion and decreases accountability.
    • For example, the central government can exempt any government or even private sector entity from the application of provisions of the law by merely issuing a notification. 
  • The Centre was also empowered to appoint members to the data protection board, raising concerns over the control it could potentially exert on the institution in cases where it was an interested party.
  • Exemptions from data processing by the state for reasons such as national security may result in data collection, processing, and retention that exceeds what is necessary. This may violate the fundamental right to privacy.
    • Any data collected by government agencies is exempted even if the data is later processed by a different agency and regardless of the legality of the purpose. 
  • The Bill differentiates between private and government companies performing the same commercial activity, such as providing banking or telecommunications services, in terms of consent and storage limitation. This may violate the right to equality of the private sector providers.
    • Which is contrary to the idea of data justice present in the original draft of the Personal Data Protection Bill created by the B N Srikrishna Committee in 2018. 
  • The composition, manner, and tenure of appointments to the Data Protection Board of India will be determined by the Central government. This raises a question about the independent functioning of the Board.
  • The Bill does not grant the right to data portability and the right to be forgotten to the data principal.
  • Before processing a child's personal data, all data fiduciaries must get verified consent from the child's legal guardian, according to the Bill. To comply with this regulation, any data fiduciary must verify the age of anyone who signs up for its services. This may have negative consequences for online anonymity.
  • The bill proposes amendments to Section 8(1)(j) of the RTI act to expand its purview and exempt all personal information from disclosure. This threatens transparency and accountability regime in the country as the personal data of government officials will be protected under it and cannot be disclosed to an RTI applicant.
  • The bill does not have stringent norms like GDPR including provisions that put limitation on the mass collection of the public data, which gives monopolistic power to first mover corporations and can cause harm to socio-economic rights. 
  • The bill put publicly available data outside of its regulation, but such data has the potential to reveal, via machine learning, sensitive intelligence that individuals did not consent to reveal when they posted some harmless data on the internet.
  • Private entities are exempted even if they collect the personal data of the employee if it is for performance evaluation purposes. Which can lead to invasive data collection in office spaces, Invasive biometrics on blue-collar workers, enabling more sophisticated exploitation and universalising a culture of surveillance.  
  • Under the bill private entities in possession of someone’s data can also assume consent and share that data with other private entities, for an unspecified duration, without informing the person. 

Need for asymmetric power to state

  • Government needs certain exemptions because it deals with issues including terrorism, law and order, and public health emergencies. These exemptions are needed for the government to work efficiently.
  • The Digital Personal Data Protection Bill is only one of the pieces that form part of its larger policy vision for the entire digital economy and must be seen in that light.

Model of Data Protection 

EU model:

  • The GDPR focuses on a comprehensive data protection law for processing of personal data. 
  • The GDPR levy harsh fines against those who violate its privacy and security standards, with penalties reaching into the tens of millions of euros. 
  • It has been criticised for being excessively stringent, and imposing many obligations on organisations processing data, but it is still the template for most of the legislation drafted around the world.

US model: 

  • The United States follows a sectoral approach to data privacy protection. 
  • There is no all-encompassing federal legislation that ensures the privacy and protection of personal data. Instead, legislation at the federal level primarily protects data within sector-specific contexts. 
  • Privacy protection is largely defined as “liberty protection” focused on the protection of the individual’s personal space from the government.
  • It is viewed as being somewhat narrow in focus, because it enables collection of personal information as long as the individual is informed of such collection and use.

China model: 

  • China’s two newest data security laws—the “Data Security Law” (DSL) and the “Personal Information Protection Law” (PIPL)—came into effect at the end of 2021.
  • The DSL sets a framework for companies to classify data based on its economic value and relevance to China's national security, while the PIPL recalls Europe's GDPR in setting a framework to ensure user privacy.
  • The DSL references two main categories of sensitive data—national core data and important data—with new guidelines for governing each.
  • The PIPL covers all data activities related to the personal information of Chinese citizens, whether it is originally collected within China or abroad.

On the one hand, Data Privacy is important because it safeguards personal integrity, promotes trust in digital interactions, and upholds the fundamental rights of individuals in an increasingly data-driven world on the other protecting data from internal or external corruption and illegal access protects a company from financial loss, reputational harm, consumer trust degradation, and brand erosion. In this regard DPDP Bill has a central importance in the economic, inclusive and secure development of India.

Data Protection Bill

Context: The revised version of India's much-anticipated data protection law has received the Cabinet's approval and is now poised to be presented to Parliament.

image 15

More about the Bill

  • It is a crucial pillar of the overarching framework of technology regulations the Centre is building, which also includes the Digital India Bill, which will be the proposed successor to the Information Technology Act, 2000, the draft Indian Telecommunication Bill, 2022, and a policy for non-personal data governance.
  • Once it becomes law, it will play a crucial role in India’s trade negotiations with other nations, especially regions like the European Union, whose General Data Protection Rules (GDPR) are among the world’s most exhaustive privacy laws.

Significance of a privacy law

  • The proposed law will apply to the processing of digital personal data within India; and to data processing outside the country if it is done for offering goods or services, or for profiling individuals in India.
  • It requires entities that collect personal data, called data fiduciaries, to maintain the accuracy of data, keep data secure, and delete data once their purpose has been met.
  • Voluntary undertaking: The entities violating its provisions can bring it up with the data protection board, which can decide to bar proceedings against the entity by accepting settlement fees.

Penalty

  • The highest penalty to be levied for failing to prevent a data breach has been prescribed at Rs 250 crore per instance. 
  • The definition of “per instance” is subjective and could mean either a single instance of a data breach, or an account for the number of people impacted and multiply it by Rs 250 crore.
  • However, it will be open to interpretation by the data protection board on a case-by-case basis.

Concerns related to the draft bill

The Bill has largely retained the contents of the original version that was proposed in November 2022. Some of the proposals flagged by privacy experts:

  • Use of open-ended language such as “as necessary” or “as may be prescribed”.
  • The Bill did not seem to work towards protecting people but ensured that the government retains all power without any checks or balances
  • The government has been given the power to exempt not only government agencies but any entity that is collecting user data, from having to comply with the provisions of this bill on account of national security, relations with foreign governments, and maintenance of public order among other things.
  • The central government will have control in appointing members of the data protection board which will be an adjudicatory body that will deal with privacy-related grievances and disputes between two parties. 
  • The chief executive of the board will be appointed by the central government, which will determine the terms and conditions of their service.
  • The Executive in India has a track record of exploiting to expand its powers. There is no right to compensation to individuals in case of a data breach and have no right to data portability.
  • There is also concern that the law could dilute the Right to Information (RTI) Act, as the personal data of government functionaries is likely to be protected under it, making it difficult to be shared with an RTI applicant.

Changes in the new bill

  • A key change is made in the way it deals with cross-border data flows to international jurisdictions, moving from a ‘whitelisting’ approach to a ‘blacklisting’ mechanism.
  • The previous draft proposed a "whitelist" of jurisdictions where the personal data of Indian citizens could be transferred, based on notifications from the central government.
  • However, the revised draft bill allows global data flows to all jurisdictions except those listed in a specified "negative list," which acts as an official blacklist of countries where data transfers are prohibited.
  • The previous draft's provision on "deemed consent" could be modified to impose stricter requirements on private entities. However, government departments would still be allowed to assume consent when processing personal data for reasons of national security and public interest.

Comparison with other countries

  • An estimated 137 out of 194 countries have put in place legislation to secure the protection of data and privacy, according to the United Nations Conference on Trade and Development (UNCTAD), an intergovernmental organization within the United Nations Secretariat.
  • Africa and Asia show 61% (33 countries out of 54) and 57% (34 countries out of 60) adoption respectively.
  • Only 48% of Least Developed Countries (22 out of 46) have data protection and privacy laws.

Different Models of data protection framework

  • EU model: The GDPR focuses on a comprehensive data protection law for the processing of personal data. It has been criticized for being excessively stringent and imposing many obligations on organizations processing data, but it is still the template for most of the legislation drafted around the world.
  • US model: Privacy protection is largely defined as “liberty protection” focused on the protection of the individual’s personal space from the government. It is somewhat narrow because it enables the collection of personal information as long as the individual is informed of such collection and use.
  • China model: New Chinese laws on data privacy and security include the Personal Information Protection Law (PIPL), which came into effect in 2021. It gives Chinese data principals new rights as it seeks to prevent the misuse of personal data.

Enhancement of Data Protection Measures in India

  • In 2017, the Supreme Court of India, in the case of Justice K.S. Puttaswamy Vs Union of India, unanimously affirmed that Indian citizens have a fundamental right to privacy, protected by Article 21 of the Constitution, which guarantees life and liberty.
  • The Indian government in 2017 established the B.N. Srikrishna Committee, to address data protection issues. The committee submitted a report with recommendations, that included imposing restrictions on data processing and collection, establishing a Data Protection Authority, recognizing the right to be forgotten, and advocating for data localization.
  • Furthermore, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules of 2021 require social media platforms to exercise increased diligence in monitoring the content on their platforms.

Standing up for National Anthem

Context: An executive magistrate in Srinagar has sent 11 men to jail after they were detained for allegedly not rising for the National Anthem at an event on June 25 where J&K Lt Governor Manoj Sinha was present.

Bound Down In legal terms, to be “bound down” means to be required to appear before the investigating officer or the court on a given date. The expression is usually used in court orders to indicate that an accused is “bound” by surety or personal guarantee to appear before authorities.

Provision of CrPC used for arrest 

Section 107 Of CrPC  

“It authorises a Magistrate, in case of emergency when breach of peace is imminent, to order the accused person to agree to a bond which asks him to maintain peace for the prescribed period of time, not exceeding one year, as the Judge thinks would fit.”

Section 151 of CrPC

“A police officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented.

Such a detention period should not exceed twenty-four hours from the time of his arrest unless his further detention is required or authorised under any other provisions of this Code or of any other law for the time being in force.”

Standing up for national anthem 

Constitutional Provisions 

  • Art 19(1)(a) provides for freedom of speech and expression 
  • Art 19(2) put restriction on the freedom provided under article 19(1)(a) in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence
  • Art 25 provides for Freedom of conscience and free profession, practice and propagation of religion subject to public order, morality and health and to the other provisions of Part 3.
  • In Part 4A, under Art 51A(a) every citizen has a duty to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem.

The Prevention of Insults to National Honour Act, 1971

Section 3 of The Prevention of Insults to National Honour Act, 1971 prescribes jail up to three years and/ or a fine for “intentionally preventing the singing of the National Anthem or causing disturbance to any assembly engaged in such singing”.

Issues

  • Whether mere standing and not singing the national anthem under a religious belief can be protected under Article 19 (1) (a) and 25 (1) of the Constitution of India.
  • Art 51A(a) of the Constitution makes it every citizen’s duty to “abide by the Constitution and respect its ideals and institutions, the national flag and the national anthem”

The Issue arises because these provisions neither expressly spell out the proper way to show respect, nor do they talk about sitting or standing while the national anthem plays.

Supreme Court Cases

Bijoe Emmanual & Others v. State of Kerala & Ors, 1986

In this case, Hon'ble Supreme court (SC) granted protection to three children of Jehovas witness Sect, who didn’t join in singing of national anthem but stand respectfully at their school. The court held that forcing the children to sing national anthem is a violation of their fundamental right to religion.

Shyam Narayan Chouksey v. Union of India

Supreme Court said that 

  • Article 25 (“Freedom of conscience and free profession, practice and propagation of religion was incorporated in recognition of the principle that the real test of a true democracy is the ability of even an insignificant minority to find its identity under the country’s Constitution.
  • SC passed an interim order that “All the cinema halls in India shall play the National Anthem before the feature film starts and all present in the hall are obliged to stand up to show respect to the National Anthem.” 
  • The court had also ordered that “entry and exit doors shall remain closed” when the Anthem is played, and that “when the National Anthem shall be played…it shall be with the National Flag on the screen”

Later, in 2018, the order passed was modified to the extent that playing of the National Anthem prior to the screening of feature films in cinema halls is not mandatory, but optional or directory.

Instruction for Correct use of National Anthem by Ministry of Home Affairs (MOHA)
Instructions have been issued by MOHA from time to time about the correct versions of the Anthem, the occasions on which these are to be played or sung, and about the need for paying respect to the anthem by observance of proper decorum on such occasions.

  • In an order issued by, the Ministry of Home Affairs (MHA) had stated that “whenever the anthem is played, the audience shall stand to attention”.
  • “However, when in the course of a newsreel or documentary the anthem is played as a part of the film, it is not expected of the audience to stand as standing is bound to interrupt the exhibition of the film and would create disorder and confusion rather than add to the dignity of the anthem,” the ministry added.

Constitutional Patriotism

Constitutional Patriotism is a German Jurisprudence concept which indicated complete devotion to constitutional principles as a way of encouraging social cohesion and dwells on building a common identity for all its citizens over their individual culture, religion tradition etc., thereby making the constitutional principles as binding factors and nothing else. 

  • The idea was introduced by the German philosopher Karles Jaspers after World War II to inculcate the feelings of unity among the German people. 
  • It was believed to be a kind of solidarity that is different from the context of nationalism and the ideas of a single community. 

However, in this context, the Supreme Court has used this concept to play the national anthem as a means to instill patriotism and nationalism which is symbolic of the nation and not of the constitution.

Difference between Nationalism, Cosmopolitanism and Constitutional Patriotism

  • In general, the concept of constitutional patriotism designates the idea that political attachment ought to center on the norms, the values, and, more indirectly, the procedures of a liberal democratic constitution.
  • Thus, political allegiance is owed, primarily, neither to a national culture, as proponents of liberal nationalism have claimed, nor to “the worldwide community of human beings,” as, for instance, Martha Nussbaum's conception of cosmopolitanism has it. 
  • Constitutional patriotism promises a form of solidarity distinct from both nationalism and cosmopolitanism.

Trending now

State of India’s Environment 2026: Rising Climate Risks and the Need for Resilience
Karnataka Announces Ban on Social Media for Children Under-16
India–France “Special Global Strategic Partnership”: A New Indo-Pacific Anchor
Front-of-Package Labelling: A Preventive Strategy to Address India’s Rising Lifestyle Diseases