DAILY NEWS ANALYSIS

GS-II: A milestone in greater transparency, accountability

News

The Jan Soochna Portal launched by the government of Rajasthan is a remarkable achievement in furtherance of RTI, especially Section 4 of the RTI Act that deals with proactive disclosure of information.

Importance of Accountability and Transparency:

• Transparency must be accompanied by accountability.
• JSP places the power of making the State government accountable to everyone who accesses the information made available on the portal.
• A National Judicial Data Grid was launched keeping transparency in the justice delivery system in mind. This gave information about all pending cases across the country.
• The justice delivery system was asked to account for the enormous delay in such a large number of cases.
• Chief Justices and Registrars in many courts appreciated the fact that they needed to answer questions relating to such enormous delays.
• Many courts have begun to concentrate on the disposal of old cases with considerable success.
• This is a good example of transparency accompanied by accountability brought about by civil society.

Jan Soochna Portal:

• Details of every activity of the government such as availability of food grains and ration shops and their distribution, implementation of various schemes and their beneficiaries and a variety of other information are available on a real-time basis.
• It is a virtual Janta Information System.
• The portal has been arrived at through a regular and rigorous consultative process between government officials, IT professionals and civil society.
• Since the information is available on the Internet, every citizen, right down to the municipal ward and panchayat, has access to the information.
• For example, if identified persons in a particular area had not availed themselves of any rations, they can be easily contacted.
• The portal gives the details of every farmer in every bank branch whose loans have been waived, along with the amounts.
• Another significant piece of information is about mining leases.
• This portal gives the list of mines in every district, provides geographical coordinates, and the area where mining has been permitted, including the land deed identifiers.
• It also provides details about pollution and environment clearances.
• It provides details of production and royalties and taxes paid.

Challenges Remain:

Maintenance issues to ensure that there is no let-up in the availability of information.

System in place:

• Various line departments of the government of Rajasthan have been given a set of obligations that they are expected to fulfill. For example, they are expected to ensure digitisation of records.
• The Department of Information Technology will serve as the nodal department for the development, operationalisation, and maintenance of the JSP.
• Its obligations include adherence to the norms and standards laid down by a digital dialogue advisory group.
• The advisory group will be the monitoring agency.
• Grievance redressal officers will be appointed so that citizens can make the State government truly accountable.
• The government of Rajasthan has also taken steps to train citizens so that they are aware of the facilities available.
• It has been decided to host the JSP in decentralised locations, right down to the municipal ward and panchayat levels.

CONCLUSION

It would be wonderful if all other State governments follow the Rajasthan government’s initiative, which aims to make people, including the marginalised sections, a part of the governance process.

GS-II: SC asks government if it plans to link social media, Aadhaar.

News

The SC on Friday decided to hear a plea by Facebook to call forth petitions pending in various HC concerning the linking of social media accounts users with their Aadhaar numbers.

Aadhaar social media linking:

The Supreme Court on August 20, 2019 stressed on the need to find a balance between the right to online privacy and the right of the state to trace originators of messages that are fake, defamatory or aim to spread panic.The Supreme Court bench comprising Justices Deepak Gupta and Aniruddha Ghose expressed concern over the dangers of the dark web. The bench’s observations came in response to the submissions made by Attorney General KK Venugopal appearing on behalf of the Tamil Nadu Government about the need to link user profiles on social media platforms with the Aadhaar database.

However, social media platforms, particularly Facebook have been resisting Aadhaar linking, stating that sharing of 12-digit Aadhaar number would violate the privacy policy of users. The facebook-owned messaging platform, WhatsApp will be one of the worst-hit if the Aadhaar-social media linkage is approved by the court, as the messaging platform is known to be a space for private conversations online.

How did Aadhaar-social media linking case originate?

The original PILs seeking Aadhaar-social media interlinking were filed by private citizens Antony Clement Rubin and Janani Krishnamurthy for authentication of identity. Both the petitioners sought Aadhaar linking to social media profiles due to rising instances of cyberbullying, spreading of defamatory and humiliating messages and other intolerable activities on social media. The cases were registered in the Madras High Court.

Why is Facebook resisting Aadhaar-social media linking?

Facebook has been resisting the move of linking user profiles with Aadhaar, as the social media platform feels that it would violate the privacy policy of users.

Why is Facebook seeking transfer of cases demanding Aadhaar-social media linking to the Supreme Court?

Facebook sought transfer of four petitions, two in Madras High Court and one each in the Bombay and the Madhya Pradesh High Courts on Aadhaar-social media linking to the Supreme Court stating that all the pending cases raise the same issue and that it was difficult for it to defend itself before high courts across the country.

What happens if certain courts rule in favour of Aadhaar-social media linking and others don’t?

The conflicting decisions by the four courts could lead to a situation where the social media platforms, which operate uniformly across India, will be ordered to link Aadhaar with user profiles in certain Indian states and not others.

What happens if user profiles on social media platforms are linked with their Aadhaar number?

The linking of user profiles on social media with Aadhaar would make every message and post by the user traceable. Though the move will serve as a deterrent to social media instigators and perpetrators of defamatory and fake posts, it would also violate the privacy of the users, keeping a record of each message along with the registered mobile number or email account. This would mean the end of private communications.

Conclusion:

The Madras High Court reiterated its stand that Aadhaar cannot be used to authenticate social media accounts. It has dismissed the plea made by the PIL petitioners, but given that the Supreme Court is hearing Facebook’s transfer petition, the Madras HC has adjourned the hearing on WhatsApp traceability case until September 19. The Supreme Court said that there is a need to find a balance between the right to online privacy and the right of the state to trace the origins of hateful messages and fake news. The government needs to move away from relying on Aadhaar and linking as a one-stop solution for issues ranging from terrorism (SIM linking), money laundering (bank account linking), electoral fraud (voter ID linking) and now cybercrime (social media account linking).

GS-II: Why sedition law has lost meaning?

News

Justice Deepak Gupta, a sitting judge of the Supreme Court, noted how the provision in the IPC provides for punishment for seditious speech is misused often than not. He wondered whether the time is ripe to have a relook at the law.

Freedom of speech

• Article 19(1)(a) of the Constitution guarantees freedom of speech and expression.
• It is subject only to Article 19(2) which saves any law that imposes “reasonable restrictions” on the limited grounds of 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 etc.

Sedition Law:

• Section 124A of the IPC defines sedition. It makes every speech that “brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards the Government” a criminal offence.
• Such an offence is punishable with a maximum sentence of life imprisonment.
• It is classified as “cognisable” — the investigation process can be triggered just by filing an FIR. A judicial authority need not have to take cognisance.
• It is also “non-bailable” — the accused cannot get bail as a matter of right, but is subject to the discretion of the sessions judge.
• An explanation to the provision clarifies that mere “disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
• A five-judge constitution bench decision of SC in Kedarnath v. State of Bihar (1962) read down Section 124A to mean that only those expressions that either intend to or have the tendency of causing violence are punishable under Section 124A.

Scope of Fundamental Rights expanded

The jurisprudence of fundamental rights was expanded through several decisions in R C Cooper v. Union of India (1969), Indira Gandhi v. Raj Narain (1975), Maneka Gandhi v. Union of India (1978), I.R. Coelho v. State of Tamil Nadu (2007) and, in Puttaswamy v. Union of India (2017).

Each of these decisions establishes that fundamental rights in the Constitution are not to be read as isolated silos but are to be read as if the content of each fundamental right animates the other.

Kedarnath judgement – limitations and expanding jurisprudence

• In Kedarnath case, the court merely tested the intent of the provision under the exceptions to the freedom of speech under Article 19(2) of the Constitution. It did not take into consideration the effect of the right to equality (Article 14) or due process (Article 21).
• Reading of Articles 14, 19 and 21 has evolved jurisprudence of testing legislation curtailing fundamental rights on substantive and procedural reasonableness, necessity and proportionality.
• The requirement of “necessity” comes from India ratifying the International Covenant on Civil and Political Rights in 1976.
• Article 19 of the ICCPR requires speech-limiting state action to be backed by law and to be necessary on the grounds of respect for the rights and reputations of others, national security etc.

Way ahead

• The new thought focuses on understanding “necessity” of state action limiting fundamental freedoms.
• The burden is on the state to establish that such a limiting measure is “necessary in a democratic society”
• “Proportionality” should inform the understanding of “reasonableness” of restrictions in Article 19.

GS-II: Government has failed to bring in Unifirm Civil code ,says SC.

News

The Supreme Court said the nation has still not endeavoured tosecure for its citizen a uniform Civil Code.

What is uniform civil code?

Uniform civil Code is a proposal to have a generic set of governing laws for every citizen without taking into consideration the religion.

What the constitution says?

Article 44 of the Constitution says that there should be a Uniform Civil Code. According to this article, “The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India”. Since the Directive Principles are only guidelines, it is not mandatory to use them.

India needs a Uniform Civil Code for the following reasons:

A secular republic needs a common law for all citizens rather than differentiated rules based on religious practices.

Another reason why a uniform civil code is needed is gender justice. The rights of women are usually limited under religious law, be it Hindu or Muslim. The practice of triple talaq is a classic example.

Many practices governed by religious tradition are at odds with the fundamental rights guaranteed in the Indian Constitution.

Courts have also often said in their judgements that the government should move towards a uniform civil code including the judgement in the Shah Bano case.

Goa Civil Code

Goa is the only Indian state to have a UCC in the form of common family law. The Portuguese Civil Code that remains in force even today was introduced in the 19th century in Goa and wasn’t replaced after its liberation.

Features-

• The Uniform Civil Code in Goa is a progressive law that allows equal division of income and property between husband and wife and also between children (regardless of gender).
• Every birth, marriage and death have to be compulsorily registered. For divorce, there are several provisions.
• Muslims who have their marriages registered in Goa cannot practice polygamy or divorce through triple talaq.
• During the course of a marriage, all the property and wealth owned or acquired by each spouse is commonly held by the couple.
• Each spouse in case of divorce is entitled to half of the property and in case of death, the ownership of the property is halved for the surviving member.
• The parents cannot disinherit their children entirely. At least half of their property has to be passed on to the children. This inherited property must be shared equally among the children.

Arguments in favour of the Uniform Civil Code:

• It Will Integrate India- India is a country with many religions, customs and practices. A uniform civil code will help in integrating India more than it has ever been since independence. It will help in bringing every Indian, despite his caste, religion or tribe, under one national civil code of conduct.
• Will Help in Reducing Vote Bank Politics- A UCC will also help in reducing vote bank politics that most political parties indulge in during every election.
• Personal Laws Are a Loophole- By allowing personal laws we have constituted an alternate judicial system that still operates on thousands of years old values. A uniform civil code would change that.
• Sign of a modern progressive nation- It is a sign that the nation has moved away from caste and religious politics. While our economic growth has been significant, our social growth has lagged behind. A UCC will help society move forward and take India towards its goal of becoming a truly developed nation.
• It will Give More Rights to Women- Religious personal laws are misogynistic in nature and by allowing old religious rules to continue to govern the family life we are condemning all Indian women to subjugation and mistreatment. A uniform civil code will also help in improving the condition of women in India.
• All Indians Should be Treated the Same- All the laws related to marriage, inheritance, family, land etc. should be equal for all Indians. UCC is the only way to ensure that all Indians are treated the same.
• It Promotes Real Secularism- A uniform civil code doesn’t mean that it will limit the freedom of people to follow their religion, it just means that every person will be treated the same and all citizens of India have to follow the same laws whether they are Hindus or Muslims or Christians or Sikhs.

GS-II: Government plea against SC\ST Act verdict goes to 3- judge Bench.

News

The Supreme court on Friday regered a review petition filed by the government against March 20, 2018 judgement of the court to 3-judge bench.

What’s the issue?

• In March 2018, Supreme Court diluted the stringent provisions of SC/ST Act (Subhash Kashinath Mahajan v. State of Maharashtra).
• The verdict saw a huge backlash across the country. The government filed a review petition in the Supreme Court and subsequently amended the 1989 Act back to its original form.

Guidelines of the petitions:

• Supreme court gave the judgement on the pretext that Innocents cannot be terrorised by the provisions of the SC/ST Act and their fundamental rights need to be protected.
• The court said that public servants could be arrested only with the written permission of their appointing authority, while in the case of private employees, the Senior Superintendent of Police concerned should allow it.
• A preliminary inquiry should be conducted before the FIR was registered to check if the case fell within the ambit of the Act, and whether it was frivolous or motivated, the court ruled.

SC/ST Prevention of Atrocities Act

• For centuries, caste was the most prominent part of religious and social life in India. A person s caste was initially based upon his occupation, but it soon became hereditary and unalterable. Caste system gave various privileges to the upper castes while at the same time allowing repression of the lower caste. The caste system has often been criticized for being unjust and regressive.
• After India attained independence, the Indian constitution attempted to redress the historical injustices and tried to provide an equal platform to the marginalized and disadvantaged by banning caste-based discrimination. Article 17, the fundamental right provided by the constitution abolishes the practice of untouchability. Practising untouchability in any form is a felony, and anyone practising it is punishable by law. The Indian constitution guarantees equality to all, but despite that, there are various forms of inequalities present among the citizens of India due to the ancient caste system.

The government decided to retain original provisions because of the following reasons:

• There had been no decrease in the atrocities committed on SC/ST people despite the laws meant to protect their civil rights.
• The sad state of affairs was despite the existence of 195 special courts across 14 States to exclusively try Prevention of Atrocities (PoA) cases.

Way Forward:

The amendments to the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 2018 is a move in the right direction. However, no matter how strong a piece of legislation is, all will depend on how well it is implemented.If the implementing agency does not do its bit then the legislative effort would not be successful in the long run. The administrative set up, which includes police machinery, investigating agencies and judiciary, has to work together to effectively implement such a law.