polity

Trump becomes first ex-U.S. President to be convicted of felony

Context: Donald Trump has become the first former American President to be convicted of felony crimes. New York jury found him guilty illegally influencing the 2016 election through a hush money. In this context, let us compare the eligibility conditions for the office of President in case of USA and India.

United States of America

  • Eligibility conditions for President of US: Candidates for president of the United States must meet basic requirements. The U.S. Constitution states that the president must:
    • Be a natural-born citizen of the United States
    • Be at least 35 years old.
    • Have been a resident of the United States for 14 years.

Anyone who meets these requirements can declare their candidacy for president. Once a candidate raises or spends more than $5,000 for their campaign, they must register with the Federal Election Commission. That includes naming a principal campaign committee to raise and spend campaign funds.

  • Can a convicted person run for president in USA: There is no bar based on a candidate’s criminal record. In some American states, felons are not allowed to run for state or local offices, but this does not apply to federal offices, including that of President.
  • Reelection for US president: The terms for reelection are regulated by the twenty-second amendment.
    • Twenty-Second Amendment
      • Section 1: No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by the Congress and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

Republic of India

  • Eligibility conditions for President of India: A person to be eligible for election as President should fulfil the following qualifications:
    • He/she should be a citizen of India. 
    • He/she should have completed 35 years of age. 
    • He/ she should be qualified for election as a member of the Lok Sabha. 
    • He/she should not hold any office of profit under the Union government or any state government or any local authority or any other public authority. A sitting President or Vice-President of the Union, the Governor of any state and a minister of the Union or any state is not deemed to hold any office of profit and hence qualified as a presidential candidate.
  • Further, the nomination of a candidate for election to the office of President must be subscribed by at least 50 electors as proposers and 50 electors as seconders. Every candidate must make a security deposit of Rs. 15,000 in the Reserve Bank of India. The security deposit is liable to be forfeited in case the candidate fails to secure one-sixth of the votes polled. 
  • Before 1997, number of proposers and seconders was ten each and the amount of security deposit was f2,500. In 1997, they were increased to discourage the non-serious candidates.
    • Can a convicted person become President of India:
      • The eligibility conditions mentioned above state that for person to become a President, He/She should be qualified for the election as a member of Lok Sabha. The Constitution of India and Parliament has laid various grounds for disqualification for being elected as a member of Parliament such as holding office of profit, unsound mind, insolvency, given up citizenship, and disqualified under any law under the Parliament.
      • The Parliament has laid down following additional disqualifications under Representation of People’s Act 1951.
        • He/she must not have been found guilty of certain electoral offences or corrupt practices in the elections. 
        • He/she must not have been convicted for any offence resulting in imprisonment for two or more years. But the detention of a person under a preventive detention law is not a disqualification. 
        • He/she must not have failed to lodge an account of his/her election expenses within the time. 
        • He/ she must not have any interest in government contracts, works, or services. 
        • He/she must not be a director or managing agent nor hold an office of profit in a corporation in which the government has at least 25 per cent share. 
        • He/she must not have been dismissed from government service for corruption or disloyalty to the State.
        • He/she must not have been convicted for promoting enmity between different groups or for the offence of bribery.
        • He/she must not have been punished for preaching and practicing social crimes such as untouchability, dowry, and sati. 

        Thus, if the person is found guilty and is convicted for any offence resulting in in imprisonment for two or more years, he/she shall be rendered disqualified to be and Member of parliament and ipso facto the office of President.

        • Reelection: Article 57 of Constitution of India deals with eligibility for reelection, it states that a person who holds, or has held, office as president shall, subject to the other provisions of the constitution of India be eligible for reelection to the office. Thus, a person may be elected for any number of terms.

        Embracing India's District Diversity for effective policy making

        Context: Chief Economic Adviser Nageswaran has argued for making the districts as smallest geographical unit for socio-economic development and analysis. He argues that districts capture the diversity of India and should be the focus of development administration.

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        About Districts: 

        • According to Article 1 of the Constitution, India is a union of states and UTs. 
        • States and UTs in turn have been broken into smaller constituent units known as districts.
        • The prerogative of making districts lies with the state governments.
        • Districts are manned by District Collectors who administer the unit. 
        • Districts also have urban and rural local bodies known as Panchayats and Municipalities.
        • Earlier, there were about 500 districts in India. However, there has been recent trend towards smaller districts to make their administration more feasible.
        • Currently, average district in India has nearly 1.86 million people, larger than the population of countries like Singapore (0.56 million) and UAE (0.94 million), shows the gamut of governance required at the district level.
        • Note: According to Census
          • Largest district in terms of Area: Kutch District
          • Largest district in terms of population: 24 Pargana, Kolkata

        Socio-economic achievement and disparities among India’s district: 

        • Socio-economic achievement and disparities
          • Recent studies using NFHS-5 data, showcase inter-generational developments in education, that the average level of the mother’s education equals or exceeds that of the father’s in as many as 195 districts (out of 707 districts studied). A generation previously, only 11 districts had more educated mothers than fathers.
          • Over 15 percent of districts have more than 90 per cent of women who own and operate savings accounts.
          • Over 91 per cent of districts have had more than 70 percent of births in the last five years in health facilities.
          • Urban districts, which constitute 30 percent of all districts in India, account for more than 55 percent of all wages paid and close to 45 per cent of all jobs. 
          • Average wage in the top 70 prosperous districts is three times higher than the average wage of the bottom 305 districts.
        • Policy approaches and programs: 
          • Top-down policies continue to help address socio-economic issues at the district level in areas such as improved sanitation and hygiene (Swachh Bharat), provision of healthcare services (Ayushman Bharat), reducing malnutrition (POSHAN Abhiyaan) and rural job guarantee (MGNREGS). For instance, the Swachh Bharat Mission has led to 75 per cent of villages being defecation-free
          • The Aspirational Districts Programme, launched in 2018. It has been instrumental in addressing critical gaps and fostering collaboration among diverse stakeholders to target efforts in the pockets of deprivation in crucial areas of health and nutrition, education, agriculture and water resources, etc.
            • In the last six years, the programme has transformed the lives of about 25 crore people in 112 districts, with visible improvements in key indicators, such as health, financial inclusion and education, as tracked by NITI Aayog. 
          • The percentage of pregnant women registered for ante-natal care within the first trimester rose from 68 per cent in 2018 to 89 per cent in 2023.
          • The percentage of underweight children below the age of six years declined from 20.6 per cent in 2018 to 9.2 per cent in 2023. 
        • One District One Product (ODOP), launched in 2020, the programme has seen the development and promotion of 1,000-plus unique products, across 767 districts, encompassing sectors such as textiles, agriculture, food processing and handicrafts.

        Way forward: 

        • ARC 2 recommendations on District Administration: 
          • Developing a reliable central district database through which data collection from the grassroot level with the help of local revenue administration machinery can be done. The database must contain block and circle-wise information on population, PHCs, PDS outlets, Police stations, schemes implemented, fund sanctioned, beneficiaries under the scheme etc. 
          • There is need to strengthen the compliance machinery at the district level to enforce provisions of the RTI Act and to reduce the element of delay and subjectivity in the functioning of the lower level formations of the government. This should be done by creating a special RTI Cell in the office of the Collector, whose functions should be reviewed by the Collector at regular periodicity. 
          • For effective monitoring and evaluation of programme/projects which are directly under the charge of the Collector, there needs to be computerized/MIS attached to his office. On the basis of these, the Collector could undertake monthly or quarterly review of performance. This cell could also function as the nodal e- governance cell for other officers located in the district by using its capacity to coordinate, and develop relevant IT solutions. 
          • Comprehensive classification of rules, guidelines and procedures is necessary for efficient service delivery and better understanding among both the officers and the general public. 
        • India’s diversity is embodied in its districts. To the policymaker, understanding the full scale of this diversity is key to crafting policies.
        • Effective administration requires recognizing the diverse needs and priorities across India's districts, necessitating policies that are not one-size-fits-all but are instead tailored to each district's unique circumstances. A significant challenge remains in the availability of timely, high-quality data for informed decision-making at the district level.
        • An ideal set of policies should be a bouquet of varied measures for different localities and regions, tailored to their culture, urbanisation, development and demography. These should be bolstered by uniform interventions in infrastructure, public goods, livelihoods, policy enablers and good governance.

        Case study: District Development Index for Maharashtra

        The index captures a district’s progress by giving equal weightage to its potential for socio-economic development and its existing levels of socio-economic development. In addition to providing an immediate picture of district performance, the index is also built for the long term, so policymakers can tap into the potential presented by various districts.

        Chief Secretary and Current Issue with Extension of its Tenure in Delhi

        Context: The Supreme Court of India, through an order, permitted the Union Government to unilaterally extend the tenure of the incumbent Chief Secretary despite the opposition from the Delhi government on allegations of conflict of interest.

        Timeline of Current Issue with respect to Service of Chief Secretary in Delhi 

        Government of NCT of Delhi vs Union of India Case, 2017 (Service Judgement):

        • In this case, the Supreme Court unequivocally held that references to "state government" in the relevant All India Rules (AIR) or Joint Cadre Rules (JCR) related to Delhi would mean the Government of Delhi.
        • Following this ruling, the Delhi government's recommendation became necessary for extending the Chief Secretary's tenure under Rule 16 of the All India Services (Death-cum-Retirement Benefits) Rules, 1958.

        Government of National Capital Territory of Delhi (Amendment) Act, 2021:

        • This act amended Section 21 of the Government of National Capital Territory of Delhi Act, 1991, by inserting subsection (3), specifying that the expression "Government" referred to in any law to be made by the Legislative Assembly shall mean the Lieutenant Governor.

        Current Supreme Court Order:

        • The Supreme Court carved an exception for the Chief Secretary of Delhi, asserting that he is differently placed than other officers under the AIR or JCR and is not bound by the Services judgement.
        • Despite the earlier ruling emphasizing the Delhi government's role in extending the Chief Secretary's tenure, the Supreme Court's current order permits the Union Government to unilaterally extend the incumbent Delhi Chief Secretary's tenure. 
        • This decision comes despite the opposition of the Delhi Government, citing serious allegations of conflict of interest against the Chief Secretary, which are currently under investigation.

        Chief Secretary of a State 

        While the Constitution of India does not have an explicit provision related to the chief secretary of states under Article 166, it provides for the conduct of the business of the state government. Their appointment is an executive action done by the chief minister in the name of governor.

        • Depending on the state, the powers and functions of chief secretaries are defined in the rules of business. 
        • The Chief Secretary is at the apex of the administrative hierarchy of a state. 
        • Many of their functions have evolved through parliamentary custom and convention, and the rules are amended from time to time to accommodate new evolving roles.

        Role of Chief Secretary 

        The Chief Secretary of a state acts as the ex-officio Secretary to the Council of Ministers and, in that capacity, he is known as the Secretary to the Cabinet and plays an important role in policy formulation.

        1. Head of the Cabinet Secretariat Department: The Chief Secretary oversees the Cabinet Secretariat Department, functioning under the Chief Minister's political leadership.
        2. Work Pertaining to Cabinet Meetings:
          • The Chief Secretary is responsible for preparing agenda papers for cabinet meetings.
          • As the ex-officio Secretary to the Council, they attend cabinet meetings and sub-committee meetings.
          • The Chief Secretary records decisions made in cabinet meetings and forwards copies to the Governor, Chief Minister, and council of ministers.
        3. Participation in the Policy Formulation Process:
          • The Chief Secretary serves as the primary source of information and advice to the Chief Minister and other ministers.
          • Their presence in cabinet meetings is crucial to counterbalance ministers who may be influenced by public opinion or constituency pressure, ensuring decisions are made with long-term considerations.
        4. Role in the Follow-up of Cabinet Decisions:
          • After cabinet decisions, the Chief Secretary oversees the implementation by the secretary of the concerned department.
          • The Chief Secretary has the authority to request documents related to any department's case.
        5. Representation at the National Level Consultations:
          • The Chief Secretary represents the state in national-level consultations, contributing to discussions and decisions on broader issues.

        Function and Responsibilities of Chief Secretary 

        1.     He chairs an expert body, which decides matters of awarding honours and distinctions.

        2.     He deals with matters relating to inter-state disputes.

        3.     The Chief Secretary can initiate changes in Rules of Business but the final decision in this respect rests with the cabinet.

        4.     All matters of housing accommodation and government buildings and circuit houses fall under his jurisdiction.

        The functioning and responsibilities of the Chief Secretary affect all the departments and, therefore, the role of the Chief Secretary as the head of the General Administration Department remains of substantial significance.

        Issues related to Hit and Run Clause in Bharatiya Nyaya Samhita, 2023

        Context: The implementation of Section 106 (2) of the Bharatiya Nyaya Sanhita, 2023 (BNS), has sparked a wave of protests among truck drivers across multiple states.

        The situation surrounding the protests against Section 106 (2) of Bharatiya Nyaya Sanhita, 2023 (BNS), is complex. The government has introduced the provision to address the increasing road fatalities and instil a sense of moral responsibility among the citizens. However, the demands of the protesters raise valid concerns about the impact of the legislation on drivers, particularly in the context of their challenging work conditions.

        image 6

        Key Aspects About the Issue 

        Need of Such a Law

        • High Fatality Rate: India recorded over 1.68 lakh road crash fatalities in 2022, leading to a daily average of 462 deaths. This indicates the magnitude of the problem and the immediate need for effective interventions.
        • Year-on-Year Increase: Despite a global decrease in road crash deaths, India experienced a substantial year-on-year increase of 12% in road accidents and 9.4% in fatalities. 
        • Frequency of Accidents: The statistic of 19 deaths every hour, translating to one death every three and a half minutes, emphasises the continuous and pervasive nature of the road safety crisis in the country.
        • Highway Concerns: Over half of all road fatalities occurring on national and state highways, which constitute less than 5% of the total road network, indicates a critical need for targeted safety measures on these specific road types.
        • High number of Hit and Run cases: The National Crime Records Bureau recorded 47,806 hit and run incidents which resulted in the deaths of 50,815 people in 2022.
        • Global Comparison: Despite having only 1% of the world's vehicles, India accounts for approximately 10% of crash-related deaths. This highlights the disproportionate impact and challenges faced by the country in managing road safety.
        • Economic Impact: The economic loss of 5-7% of GDP annually due to road crashes further emphasises the multifaceted impact of road accidents, extending beyond human lives to economic consequences.

        To address such challenges, the government introduced new provisions under Bhartiya Nyaya Samhita to deter drivers from engaging in rash and negligent driving that can lead to fatalities. These provisions also impose a positive obligation on offenders to report such incidents, emphasizing moral responsibility toward the victims. 

        Contested Provisions of Bhartiya Nyaya Samhita 

        Section 106: Causing death by negligence

        1. Whoever causes death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine. 
        2. Whoever causes death of any person by rash and negligent driving of vehicle not amounting to culpable homicide, and escapes without reporting it to a police officer or a Magistrate soon after the incident, shall be punished with imprisonment of either description of a term which may extend to ten years, and shall also be liable to fine. 

        But the above provision led many drivers from different states to take to the road, expressing certain concerns.

        Concerns of Protesters about the brought provisions:

        • Severity of Punishment: Transporters argue that the 10-year imprisonment and ₹7 lakh fine for fleeing the scene of an accident without reporting it is excessive. 
        • Work Condition: They contend that this penalty fails to consider the challenging work conditions, long driving hours, and difficult roads that drivers often face.
        • Unintentional Accidents: Accidents may occur due to factors beyond the driver's control, such as poor visibility due to fog and the law remains silent on such unintentional accidents.
        • Fear of Mob Violence: The fear of mob violence against drivers who stop to assist the injured at accident sites is mentioned, indicating potential safety risks for drivers.
        • Negative Impact on the Transport Industry: Drivers are worried that the stringent penalties may discourage individuals from joining or continuing in the transport profession, leading to a potential negative impact on the transport industry.

        Issues need to be addressed 

        • Misinformation: There is a need to address misinformation about the legislation, such as the incorrect claim that the fine for fleeing the accident spot is ₹7 lakh which is not mentioned under the provisions.
        • Revisiting and Reconciling Clauses: The suggestion to revisit and reconcile the clauses, particularly distinguishing between rash and negligent driving, is a valid consideration. 
        • Differentiating the degrees of liability and punishment based on the nature of the incident could address the concerns raised by the protesters. Applying a single clause universally may unfairly prejudice drivers facing diverse circumstances.
        • Community Service and License Revocation: In cases resulting in minor injuries, alternative measures such as community service, license revocation, or mandatory driving retests could provide a more nuanced approach, helping avoid criminalizing every incident and considering the circumstances of each case.

        Balancing Road Safety and Drivers’ Concerns: A way Ahead 

        • Revisiting and refining the legislation based on a holistic understanding of the issues raised by protesters could lead to a more just and effective legal framework. 
        • All the stakeholders should engage in a constructive dialogue to address the concerns of transporters while ensuring public safety on the roads.

        Notaries and Issues with their functioning

        Context: Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law & Justice recently released a report on the 'Functioning of Notaries'.

        About Notaries

        • Notary (also called Public Notary) is a public official whose chief function is to authenticate contracts, deeds and other documents by an appropriate certificate with a notarial seal.
        • The profession of notaries in India is presently regulated by the Notaries Act, 1952 (Passed by Parliament) and Notaries Rules, 1956.
        • Notaries Act is a Central Legislation but the subject 'Legal Profession' falls in the Concurrent List of the VIIth Schedule of the Constitution of India. Hence, both Central and State Governments are administratively competent to appoint notaries.
        • Appointment of Notaries: Under the Notaries Act, both the Central & State Governments have been vested with powers to appoint any legal practitioners or persons who possessing prescribed qualifications as notaries. Central Government can appoint notaries for the whole or any part of India while State Governments can appoint notaries for the whole or any part of the State. Currently, an interview based system is followed by Central/State Governments to appoint Notaries.
        • Period of Practice: According to Notaries Act, Notaries are entitled to practice for 5 years, which may be renewed for 5 years. Thus, before the end every 5 year period, Notaries need to renew their certificate of practice as Notaries from their appointing authorities.
        • Maximum number of notaries to be appointed by Central and State governments is specified in the Notaries Rules, 1956.
        • Eligibility criteria for appointment as a Notary: Notary Rules, 1956 prescribes eligibility criteria for appointment as a Notary. They qualifications are as follows:
          • At least 10 years of practice as an Advocate, or
          • At least 7 years of practices as an Advocate for a person belonging to SC/ST/OBC/Woman, or,
          • A person who had been a member of the Indian Legal Service under the Central Government, or,
          • A person who had been at least for 10 years

        (i) a member of Judicial Service, or

        (ii) Held an office under the Central/State Government requiring special knowledge of law after enrollment as an advocate, or

        (iii) Held an office in the department of Judge Advocate General (JAG) or the legal department of Armed Forces.

        • Duties of Notaries: According to Notaries Act, following functions are performed by Notaries.
          • Verify, authenticate, certify or attest the execution of any instrument.
          • Present any promissory note, hundi or bill of exchange for acceptance or payment or demand better security.
          • Administer the oath to or take affidavit from any person.
          • Translate or verify the translation of any document from language to another.
          • Act as a Commissioner to record evidence in any civil or criminal trial if so directed by any court or authority.
          • Act as an arbitrator, mediator or conciliator, if so required.

        Of the above functions, the bulk of work performed by notaries is related to verifying or authenticating the execution of an instrument and administering oaths or taking affidavits from any person.

        • Fees to be charged by Notaries: Currently, fees to be charged by Notaries for Notarial act is prescribed by the Notaries Rules, 1956.

        Issues with Profession of Notaries:

        • Degradation of profession of notaries: Notaries have been known to issue false certificates leading to fraud and other legal issues. Notaries have been known to operate from public vehicles and taxis, thus lowering the dignity of Notarial profession, this happens as there is no designated spaces for notaries to sit.
        • Low fees prescribed for Notaries: Currently, Notaries Rules, 1956 prescribes the fees to be charged by Notaries which is very meagre. This fees was last updated in 2014. Notaries do not receive any remuneration or pay from the government.
        • Lack of transparency in appointment of Notaries: Present interview appointment system for notaries lacks transparency and objectivity and is ritualistic. There is no objective criterion for holding interviews for the selection of notaries. There have been allegations of corruption and misuse of transparency in the process.
        • Low sanctioned strength of Notaries: Notaries Rules, 1956 prescribes the maximum number of notaries to be appointed by Central/State Governments and enhancement of this quota in line with population. However, the number of notaries is limited and unevenly distributed across the country, leading to difficulty is accessing notarial services, especially in rural and remote areas.
        • Issues with qualifications of notaries: Current requirement of 10 years of practice as advocate for practice as eligibility for appointment as notary is very high. Also, there have been many instances where applicants having no experience of practicing in courts to be appointed as notary based on their years of enrolment as advocates.
        • Issues in renewal of certificate of practice of Notaries: There are huge delays in the disposal of applications for renewals of certificates of practice. This leads to many Notaries sitting out of work leading to loss of their practice, income and reputation. There are also allegations of corruption and misuse of discretion in the renewal process.
        • Lack of training of Notaries: Notaries in India are not adequately trained and supervised and there is no mechanism for ensuring their accountability and quality of service.
        • Issues in notarising of documents: Notarial work is largely paper based and manual which increases the risk of fraud, forgery and tampering of documents. There is a lack of digitisation, standardisation and verification of notarial records and certificates.

        Suggestions for Notaries

        • Raising of fees charged by Notaries: There is a need to appropriately raise the fees charged by notaries which indexed to inflation. This will allow notaries to have a decent standard of living. This fees should be revised at regular intervals, every 5 years.
        • Appointment of Notaries: The interview based appointment of notaries should be done away with and instead appointment of notaries should be based on an objective type written examination along the lines of All India Bar Examination (AIBE) conducted by Bar Council of India.
        • Sanctioned Strength of Notaries: Sanctioned strength of notaries in a state should be determined based on a set of objective criteria like population, volume of litigation, economic and commercial activities in the state etc. and this should be reviewed regularly.
        • Qualification of Appointment of Notaries: Eligibility for appointment as notaries should be reduced to 5 years from the current 10 years. This will attract young aspirant lawyers to this profession.
        • Renewal of certificate of practice of Notaries: Renewal of certificate of practice of Notaries is done to know about the antecedents of the Notaries and to ensure that the applicant is alive and ensure that nobody else is practicing in their place. To ensure smooth practice of Notaries, the committee has recommended that renewal of certificate of practice every five years should be done away with. After their appointment, notaries should be allowed to practice till a particular age prescribed by the Government.
        • Diversity in notaries' profession: Ideally, notaries profession should reflect the diversity of the state which will enrich the notarial profession and the legal system. Thus, adequate representation should be given to SCs, STs, OBCs, Women, Physically Challenged, Minorities etc.
        • Training of Notaries: Notaries should be provided with regular trainings and guidance and their performance and conduct should be monitored and evaluated by an appropriate government/authority. Some ethical and professional standards should be laid out by such government/authority to which notaries should adhere to. Also, complaints or grievances against Notaries should be promptly addressed and resolved.
        • Use of technology in appointment and notarial work: Government should make the Notary Portal of Department of Legal Affairs into a one-stop place for advertising vacancies of notaries, making applications, submitting fees, publishing results and downloading e-certificates of practice. Annual returns under Notaries Rules, 1956 should also be filled through this portal. Also, general public should be provided with state-wise list of public notaries, updated on a real-time basis, for verifying credentials of notaries. Services of this portal can be extended to States/UT also. Notaries should be equipped to handle electronic transactions, digital documents and online notarisation.
        • Designated areas for sitting of notaries: Government should ensure designated areas for sitting of notaries in every court complex from where they can do their notarial work in a dignified manner.
        • Change of notarial years for annual returns: The Notarial year should be changed from calendar year to financial year as this will help the notaries to synchronise their returns with that of Income Tax returns.
        • Notarising of documents: Notarial work should be modernised and digitised and the use of electronic signatures, stamps and seals should be encouraged. Notarial records and certificates should be stored and maintained in a centralised online database, which can be accessed and verified by concerned authorities and parties. Governments should ensure that all public notaries maintain a digital register to keep records of documents notarised by them.

        National Human Rights Commission: An Analysis

        Context: The National Human Rights Commission accreditation status under Global Alliance of National Human Rights Institutions (GHNRI) is about to be reviewed by the Global Alliance of National Human Rights Institutions (GANHRI).

        About Global Alliance of National Human Rights Institutions (GANHRI):

        • GANHRI is a global network of 114 NHRCs which coordinates the relationship between NHRIs and United Nations.
        • It was conceived at the International conference held in Tunis in 1993. Participating NHRIs established the International Coordinating Committee of NHRIs (ICC) with the goal of coordinate the activities of the NHRI network. 
        • In 2016, the ICC changed its name into Global Alliance of National Human Rights Institutions (GANHRI).
        • GANHRI is incorporated as a legal entity under the Swiss law and has a Bureau consisting of 16 “A status” NHRIs representing the four regions of GANHRI. General annual meetings of GANHRI are held in cooperation with UN Human Rights in its capacity as the GANHRI secretariat.

        The Subcommittee on accreditation: It conducts a peer reviewed process for initial accreditation and re-accreditation in every five years. Presently, India’s Human Rights body NHRC has A rating.

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        About National Human Rights Commission (NHRC)

        • It is a Statutory body established in 1993 under the Protection of Human Rights Act, 1993.
        • It is considered as a watchdog of human rights in the country, i.e. rights related to life, liberty equality and dignity of individuals.

        Composition of NHRC

        • It consists of Chairman and 5 members.
          • Chairman: Should be retired Chief Justice of India or a judge of Supreme Court.
          • Members: Serving or retired Judge of Supreme Court, serving or retired chief justice of High court and 3 members having knowledge or practical experience with respect to human rights (out of which at least one should be a woman.)
          • Ex-officio Members: Chairpersons of following bodies are ex officio members.
            • National Commission for Minorities.
            • National Commission for SCs
            • National Commission for STs
            • National Commission for Women
            • National Commission for Backward Classes
            • National Commission for Protection of Child Rights
            • Chief commissioner for Persons with Disabilities

        Functions of NHRC

        • To enquire into violation of Human Rights or Negligence the prevention of such violation by a public servant.
        • To intervene into any proceeding involving allegation of violation of Human Rights.
        • Visiting jails and detention centers to study the living conditions of inmates.
        • Reviewing constitutional and other legal safeguards for the protection of human rights and recommend measures for their effective implementation.
        • Reviewing factors like terrorism, naxalism, militancy that inhibit the enjoyment of human rights and recommend remedial measures.
        • Study international treaties and instruments on human rights and make recommendations for their effective implementation.
        • To undertake and promote research in the field of human rights.

        Achievements of NHRC

        • Intervention in mega projects: Intervention in individual cases of displacement on account of mega projects, disasters, and conflicts.
          • Outcome: Commission examined the provisions of the Land Acquisition (Amendment) Bill, 2007 and the Rehabilitation and Resettlement Bill, 2007 and recommended relief measures to the displaced.
        • Issues related to excessive use of police force: At various instances, commission has taken cognizance of killing of Adivasis and excessive use of force on Adivasis protesting Narmada Project and called for a report from the State DGP.
          • Outcome: Based on the reports, the commission recommended relief measures such as dropping of charges and implementation of adequate rehabilitation measures.
        • Intervention against high Suicide rates: The Commission took Suo motu cognizance of the reports about suicide by farmers of Maharashtra and sought reports from Government.
          • Outcome: The Government of Maharashtra in its report informed the Commission that it had appointed a Committee at District level under the Chairmanship of District Collector to monitor and supervise the implementation of various schemes, to assist farmers and to curb, dissuade them from committing suicide.
          • Families of farmers who had committed suicide were being provided financial assistance as per norms laid down by the State Government. The Government of Andhra Pradesh had also constituted a Farmers Welfare Commission to go into the causes of suicide. The Commission has set up a committee to study the problem and suggest solutions.
        • Violence against Adivasis: Violence by Maoists and Salwa Judum in Dantewada, Chhattisgarh was brought to the notice of the Commission.
          • Outcome: The Commission called for a report from the State Government. While the matter was under consideration of the Commission, the Supreme Court based on a writ petition filed before it, directed the Commission to examine/verify allegations relating to violation of human rights by Naxalites and Salwa Judum and the living conditions in the refugee settlement colonies.
        • Ratification of International conventions: India is not a signatory to UN Convention against torture, the commission is constantly advocating for its early ratification.

        Issues or concerns with NHRC

        • Recommendatory nature: Functions of the commission are merely recommendatory; it has no power to punish the violation of Human rights.
          • The recommendations are also not binding upon the concerned government or body.
        • Limited powers concerning armed forces: Limited role, power, and jurisdiction with respect to violation of human rights by armed forces.
        • Administrative constraints: Being a Paris principle compliant institution, it must have functionaries and infrastructure suited for its smooth functioning, which is lacking at present.
        • Financial constraints: Presently, the commission receives grants in aid from MHA to function, for the effective functioning, it must have financial autonomy.
        • Manpower Constraints: Commission has rarely functioned at the sanctioned strength, due to increasing workload, it is compelled to hire retired government officials as consultant on contract basis.
          • Lack of legal manpower: The law division of commission lacks adequate resources to deal with cases because of shortage of trained manpower in field of human rights.
        • Lack of Suo moto uptake: Activists have alleged that arrests are made under UAPA law for exercising rights to freedom of expression and peaceful assembly, NHRC has maintained silence on these issues.
        • Lack of diversity: Critics argue that since the Chairman and members are mostly drawn from judicial fraternity, it restricts the diversity and plurality of the board. There is no mandatory representation of minority, SCs and STs in the commission.
        • Political Interference: The composition of the selection committee is highly skewed in favour of the party in power. This may result in political interference in the working of the NHRC.
        • Narrow Jurisdictions: NHRC can only investigate complaints of Human right violations which are registered within 1 year of the incident. This reduced the Jurisdiction of NHRC.
        • Control of Home Ministry: Most instances of human rights violations that the NHRC investigates are against the police and, it raises concerns as the commission comes under the Home Ministry. 

        Suggestions to Make NHRC more effective:

        • Constitutional body: NHRC can be made a constitutional body on the similar lines of South African Human Rights Commission.
        • Report to be presented in parliament: It is suggested that the report of NHRC should be tabled in parliament, and based on the NHRC report, an action taken report on the recommendation should be presented by the government.
        • Mandatory time frame for action taken: Act should be amended to include a time frame for action taken and response formulation on NHRC recommendations.
        • Independent cadre: NHRCneeds to develop an independent cadre of staff including legal and human rights expert.
        • Financial independence: Commission must be provided financial autonomy to function because of the increasing workload and responsibilities.
        • Jurisdiction: Period of jurisdiction must be expanded; commission should be allowed to investigate the matters which are older than 1 year.
        • Contempt powers: NHRC should be accorded with power of contempt to ensure effective implementation of the recommendations.

        About Paris Principles

        The Paris Principles were defined at the first International Workshop on National Institutions for the Promotion and Protection of Human Rights held in Paris on 7–9 October 1991. They were adopted by the United Nations Human Rights Commission by Resolution 1992/54 of 1992, and by the UN General Assembly in its Resolution 48/134 of 1993.

        The Paris Principles set out six main criteria that NHRIs require to meet. These are: 

        • Mandate and competence.
        • Autonomy from Government
        • Independence guaranteed by a Statute or Constitution
        •  Pluralism
        • Adequate resources
        • Adequate powers of investigation.

        Post Office Act, 2023

        Context: Both Rajya Sabha and Lok Sabha has passed the Post Office Act, 2023. The Act seeks to replace Indian Post Office Act, 1898 and simplify legislative framework to facilitate evolution of India Post into a citizen-centric service network. This legislation is an attempt to ensure the effective functioning of the Postal Department as a messenger service and as a provider of banking facilities.

        Historical Context of Indian Post Office

        • 38th Report of Law Commission on Indian Post Office Act, 1898:  The 1898 Act provides for the interception on the ground of ‘public emergency’. The Law Commission highlighted that since the term  ‘public emergency' has not been explicitly defined in the act, it provides a broad basis for interception, thus limiting citizen’s 
          • Right to Privacy (Puttaswamy Case)  
          • suspension of fundamental rights to speech and expression (Article 19 (1)).
        • Recommendations of Law Commission: Parliament should amend the existing laws relating to interception to ensure that they adhere to the Constitution. 
        • This recommendation led to the enactment of Telegraph (Amendment) Act of 1981 which gave the executive limited powers of interception. 
        • However, Parliament passed the Indian Post Office (Amendment) Bill, 1986 which gave executive power to intercept in the national interest. This Bill empowered Union or State Government or any authorised officer to 'intercept or detain' any postal article on certain grounds such as public emergency.
        • Despite being passed by the Parliament this bill could not come into force as Former President Zail Singh neither assented nor returned the Bill to the Parliament for reconsideration. (Famous Case of Pocket Veto and Presidential activism in India’s constitutional history).

        Salient features of Post Office Act, 2023

        About Post Office Act, 2023 
        Issuance of postal stamp It states that India Post will have the exclusive privilege over issuing postage stamps.
        Services to be prescribed Provides that India Post will provide services, as may be prescribed by the central government.
        Director General to make regulations Provision for the appointment of a Director General, who is authorized to create regulations for all activities essential to postal service provision.
        Power of Interception Allows interception of postal articles on grounds such as state security, friendly relations with foreign states, public order, emergency, public safety, or contravention of the Act or other laws.  An authorized officer appointed by the central government can conduct interceptions.
        Examination of Postal Article Empowers an India Post officer to deliver the postal article to the customs authority or any other specified authority for handling.
        Exemption from liability The government is exempt from liability for loss, mis-delivery, delay, or damage to postal articles, unless the central government explicitly assumes liability. Officers are also exempt, except in cases of fraud or wilful misconduct.
        Removal of offence and penalties Provide for one offence or consequence that is unpaid amounts can be recovered as arrears of land revenue.

        Contentious Provisions of Post Office Act, 2023 

        1. Interception of Articles: The Post Office Act, 2023 empowers the Union government to appoint an officer-in-charge who is empowered to ‘intercept, open, or detain’ any postal article on grounds such as the security of the state, friendly relations with foreign states, public order, emergency, public safety, or contravention of the provisions of the Act or any other laws."
        2. The Union government, by notification, can also empower any officer of the Post Office to deliver a postal article suspected of containing any prohibited item to the customs authority or any other specified authority.
        3. Exemption of Liability to Post Office: The Act exempts the Post Office from incurring any liability related to its services. It specifically stipulates that no officer shall incur any liability unless the officer has acted fraudulently or wilfully caused any loss, delay, or mis-delivery of service.

        Issues Raised Against the Post Office Act, 2023

        • Violation of Fundamental Right to Privacy: 
          • The interception power given to the state is not defined. In the absence of clear guidelines, it encourages state surveillance and violates Articles 14, 19(1)(a), and Article 21 of the Constitution. 
          • There is no provision in the Act that prevents officers from leaking any contents of the intercepted postal articles.
        • Lack of Clarity:
          • It does not specify the grounds for interception, giving unbridled powers to the authorities concerned.
          • The Act does not stipulate what would qualify as an ‘public emergency’—a ground for interception.
        • Lack of Procedure for Interception: The Act fails to specify the procedure for interception, making it arbitrary in nature.
        • Lack of Clarity on Recruitment of the Officer in Charge of Interception: The officers empowered by the Act to ‘open and detain’ any intercepted shipment lack provisions regarding their qualification, selection process, and training.
        • Absence of Grievance Redressal Mechanism: The Act does not provide any grievance redressal mechanism to citizens, despite relieving post officers of any liability with regard to the services offered.
        • Violation of Principle of Natural Justice and Due Process of Law: There is no clause in the legislation requiring the government to inform a citizen about such actions. Thus, a citizen will be unable to raise concerns about interception or contest the action, violating every principle of natural justice and due process of law.
        • Paternalistic State and Big Brother Syndrome: By monitoring citizens without providing any redressal mechanism, the state has assumed the roles of both a parent and a big brother.
        • Chilling Effect on freedom of expression: It may lead to a chilling effect affecting the freedom of expression of an individual and using the post as a means of expressing thoughts.

        Courts cases related to Interception

        People’s Union for Civil Liberties (PUCL) versus Union of India (1996)

        • In this case, the constitutionality of Section 5(2) of Telegraph Act was challenged for permitting telephonic interception without any due process guarantees.
        • The Supreme Court acknowledged that telephone tapping infringed upon  right to privacy and created safeguards against arbitrariness in the exercise of the state’s surveillance powers.
        • It held that in the absence of a just and fair procedure to regulate the powers of interception, it is not possible to safeguard the rights of citizens under Articles 19(1)(a) and Article 21.

        Justice KS Puttaswamy versus Union of India (2017)

        • Supreme Court declared the right to privacy to be a fundamental right of all Indians.
        • The verdict stipulated that any state measure proposing to interfere with the right to privacy must satisfy certain requirements:
          • Legality: the measure is authorized by statute.
          • Legitimate goal: the measure pursues a proper purpose.
          • Suitability: the measure takes meaningful steps towards achieving the proper purpose.
          • Necessity: the measure is the least rights-restrictive measure amongst equally effective alternatives.
          • Proportionality: the measure does not disproportionately impact individual rights.
          • Procedural safeguards: the measure incorporates meaningful guardrails against possible abuse.

        Shreya Singhal vs. Union of India (2015)

        • In this case, the Supreme Court held that arbitrary grounds for restricting freedom of speech and expression are unconstitutional.

        Way Forward

        • Ensure the Act aligns with constitutional provisions (Articles 14, 19(1)(a), and Article 21) by introducing clear guidelines to define the scope and limits of state-granted interception powers.
        • Define 'public emergency' to prevent arbitrary use of interception powers.
        • Outline a transparent procedure for interception in the Act, with an independent oversight body to review and authorize requests.
        • Establish an accessible grievance redressal mechanism for citizens to raise concerns related to interception.
        • Include a clause requiring the government to inform affected citizens about interception actions. 
        • Provide a mechanism for citizens to appeal actions of interceptions, ensuring adherence to principles of natural justice and due process.
        • It does not specify the grounds for interception, giving unbridled powers to the authorities concerned.

        JustIS APP

        Context: Department of Justice under Ministry of Law & Justice has launched JustIS App, which is a digital tool for efficient court management.

        About JustIS App

        Department of Justice under Ministry of Law & Justice has JustIS App which is a Electronic Case Management Tool available for judicial officers.

        JustIS App allows judicial officers to

        • Access laws, regulations and case law.
        • Automatically generate a hearing schedule for all cases on their docket
        • Send notifications to lawyers
        • Track the status of a case on their docket
        • View & manage case document
        • Assist in judgement writing
        • Semi-automatic generation of court orders
        • View court orders and judgements in a particular case.

        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.

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        (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.

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        (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.

        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.

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