Basic structure of the Constitution revisited : The Hindu

The basic structure theory plays a useful part in our constitutional jurisprudence. But was there truly a judicial formulation by the Supreme Court of India of the basic structure doctrine in the Kesavananda Bharati case? An insider's unravelling of a fascinating story.

THIRTY-FOUR years ago, on April 24, 1973, thirteen judges of the Supreme Court assembled in the Chief Justice's court packed to its capacity with lawyers and laypersons. They delivered eleven judgments in India's most celebrated case in constitutional law the Kesavananda Bharati case. For over three decades we have believed that in that case a majority of judges decided that Parliament has no power to amend the basic structure of the Constitution.

Revelations of how the Kesavananda case was decided have been disclosed in later interviews with those who were involved in the case, writings of scholars, and by a revealing autobiography of Justice Jaganmohan Reddy, one of the judges in that case. This writer, a counsel in the case, kept detailed notes of the proceedings of the case. We can now piece together a collated account of how the case was decided. At the end of it, the question arises was there truly a judicial formulation of the theory of basic structure in that case, as it has come to mean today; and was the case decided in an atmosphere conducive to a detached determination of a highly contentious matter with political overtones?

To reverse the Golak Nath case (1967), which had held that Parliament had no power to amend fundamental rights, and in anticipation of a major constitutional battle, we now know that the government carefully selected some judges who would not be obstructive to its reversal. The case became a contest not only between the rival parties but apparently among some of the judges who were committed to their own strong views on Parliament's power to amend the Constitution. Justice Jaganmohan Reddy records this about some his colleagues: "I got the impression [from the first day] that minds were closed and views were determined."

The case was essentially a political fight in a court of law with a political background. It was conducted under continuous and intense pressure the likes of which it is hoped will never be seen again. One author has described the atmosphere of the court as "poisonous." A judge on the bench later spoke about the "unusual happenings" in the case. If the several "unusual happenings" in the case are related in detail, they will make one doubt if the decision in the case was truly a judicial one expected from judges with detachment from the results of the controversy before them.

On April 24, 1973, the eleven separate judgments were delivered by nine judges; collectively these ran into more than 1000 printed pages. Six judges Chief Justice S.M. Sikri and Justices J.M. Shelat, K.S. Hegde, P. Jaganmohan Reddy, A.N. Grover, and S. Mukherjea were of the opinion that Parliament's power was limited because of implied and inherent limitations in the Constitution, including those in fundamental rights. Six other judges Justices A.N. Ray, D.G. Palekar, K.K. Mathew, S.N. Dwivedi, M.H. Beg, and Y.V. Chandrachud were of the opinion that there were no limitations at all on Parliament's power to amend the Constitution. But one judge Justice H.R. Khanna took neither side. He held that Parliament had the full power of amending the Constitution; but because it had the power only "to amend," it must leave "the basic structure or framework of the Constitution" intact. It was a hopelessly divided verdict after all the labour and contest of five months. No majority, no minority, nobody could say what was the verdict.

How was it then said that the Court by a majority held that Parliament had no power to amend the basic structure of the Constitution? Thereby hangs a tale not generally known. Immediately after the eleven judges finished reading their judgments, Chief Justice Sikri, in whose opinion Parliament's power was limited by inherent and implied limitations, passed on a hastily prepared paper called a "View of the Majority" for signatures by the thirteen judges on the bench. One of the conclusions in the "View of the Majority" was that "Parliament did not have the power to amend the basic structure or framework of the Constitution." This was lifted from one of the conclusions in the judgment of Justice H.R. Khanna. Nine judges signed the statement in court. Four others refused to sign it.

By any reading of the eleven judgments, this conclusion could not have been the view of the majority. It was only the view of one judge Justice H.R. Khanna. Some judges had no time to read all the eleven judgments as they were prepared under great constraints of time owing to the retirement of the Chief Justice the next day. Justice Chandrachud confessed that he had a chance hurriedly to read four draft judgments of his colleagues. No conference was called of all judges for finding out the majority view. The one conference called by the Chief Justice excluded those judges who were of the opinion that there were no limitations on the amending powers. Nor was the conclusion debated in court, as it ought to have been. The Chief Justice's action has been described by some as an act of statesmanship. Others believe it was a manoeuvre to create a majority that did not exist.

The verdict would have remained in this uncertain state but for accidental events following the decision. On August 1, 1975, with lightning speed and by an outrageous abuse of the amending power during the Emergency, Parliament made the 39th Amendment to the Constitution. This introduced Article 329 A of the Constitution which sought to validate Indira Gandhi's election set aside by a judge of the Allahabad High Court without any contest, including her pending appeal in the Supreme Court.

On August 11, 1975, Indira Gandhi's election appeal against her disqualification was heard by five judges presided over by Chief Justice A.N. Ray. He had been appointed Chief Justice of India by the government the day after the judgments in the Kesavanada case superseding three other judges who had decided against the unlimited power of Parliament to amend the Constitution. The government believed that with the amendment to Article 329A of the Constitution, her appeal would simply be allowed. But so outrageous was the amendment that all five judges declared it bad as it violated "the basic structure." Nevertheless, Indira Gandhi's appeal was allowed by an amendment made to the Representation of the People Act, 1951, which cured all illegalities in her election. The court could strike down constitutional law but not an ordinary law that carried out the same purpose. To many this seemed perplexing.

Everyone took it that the court had now approved the basic structure theory by striking down the amendment to Article 329A everyone, that is, except Chief Justice A.N. Ray. He had stated in Indira Gandhi's case that the hearing would proceed "on the assumption that it was not necessary to challenge the majority view in Kesavananda Bharati case." On November 9, 1975, two days after the Indira Gandhi case was decided, the Chief Justice constituted a new bench of thirteen judges to review the Kesavananda Bharati case.

For two days, N.A. Palkhivala made the most eloquent and passionate argument against the review. On November 12, the third day, the Chief Justice announced suddenly at the very outset of hearing: "The bench is dissolved." Thus ended an inglorious attempt to review the Kesavananda judgment. Whatever the reasons for the dissolution of the bench, Chief Justice Ray's maladroit attempt to review the basic structure limitation gave it a legitimacy that no subsequent affirmation of it could have given.

But the problem could not be avoided. In 1980, in the Minerva Mills case, the question was raised whether there was indeed a majority view on the limitation of the basic structure. Justice Bhagwati said that the statement signed by nine judges had no legal effect at all and could not be regarded as the law declared by the Supreme Court. He said the so-called majority view was an unusual exercise that could not have been done by judges who had ceased to have any function after delivering their judgments and who had no time to read the judgments. However Justice Bhagwati relieved himself from deciding what he called "a troublesome question" by saying that Indira Gandhi's case had accepted the majority view that Parliament's power of amendment was limited. This was not correct as that case was decided on the assumption that it was not necessary to challenge the majority view.

So a single judge's opinion Justice Khanna's of a limitation of the basic structure on Parliament's power has passed off as the law. But Justice Khanna was responsible for another vital dimension of the basic structure two years after the case was decided. In the Kesavananda case, he did not say that fundamental rights were part of the basic structure of the Constitution, although six other judges said that and the case was entirely about the validity of amending fundamental rights by the challenged constitutional amendments. Three of Justice Khanna's brother judges in the Kesavananda case were clearly of the opinion that Justice Khanna had not held that fundamental rights were part of the basic structure in the Kesavananda Bharati case.

But in Indira Gandhi's election case two years later, Justice Khanna "clarified" his judgment in the Kesavananda case. He now said that he had given clear indications in his judgment that fundamental rights were part of the basic structure. By so clarifying his judgment, Justice Khanna did not realise that this clarification rendered his judgment in the Kesavananda case hopelessly self-contradictory, as he had held unconditionally valid two constitutional amendments that nullified vital fundamental rights. With that dubious exercise, Justice Khanna's "clarification" is now a vital part of the basic structure. Fundamental rights are now immune to an amendment if it violates the basic structure of the Constitution.

In the latest judgment, delivered on January 11, 2007, by nine judges of the Court on the Ninth Schedule to the Constitution, the basic structure limitation has been stated to be "an axiom of our constitutional law." An axiom means a self-evident truth. So be it. Whatever its origins, the basic structure theory plays a useful part in our constitutional jurisprudence. Parliament does not and should not have an unlimited power to amend the Constitution. However, in the glorification of the basic structure theory, it is important to bear in mind its infirm roots and how predilections and prejudices of judges, chance, and accidental circumstances have played a greater part rather than any logic or conscious formulation of it.

(The writer is a former Solicitor-General of India. This article is based on his lecture, which was presided over by Lok Sabha Speaker Somnath Chatterjee, to the Supreme Court Bar Association on April 4, 2007.)

PREAMBLE OF INDIAN CONSTITUTION

"We ,THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizen:

JUSTICE,social,economical and political;
LIBERTY of thought,expression,belief,faith and worship;
EQUALITY of status and opportunity; and to promote among them all;
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this 26th day of November ,1949, DO HERE BY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION".

HAPPY REPUBLIC DAY INDIA

In the context of modern capitalist driven economy, the ideals enshrined in the preamble still relevant? Equality and fraternity possess a challenge. Critically examine

The ideals enshrined in the constitution reflect the ideas and aspirations of our elders while drafting the constitution. The idea of socialist state in 1950 to market driven economy in with the liberalization reforms in 1999 and successive years, shaped with economic future of the country with both up and downs. The concept of state driven economy in Nehruvian times laid an emphasis on vibrant economy with Heavy industrialization and Irrigation as its backbone. The 1950’s era addressed the immediate need of building a nation from foundations. Even the state driven reforms and privatization of resources and opening up of key areas to market investment created a Global economy in India. The Social equality attributed to the success of brings the marginalized classes in to main stream development. The success of ITDA,PMRY, SJGSY, PMSY Food for work, MGNREGA, Direct cash transfer schemes and PM Jan Dhan yojanga, pays a way for gainful employment and assured delivery of Govt resources to the public. This will help to bring social status as well as Economic independence to the poor to stand on their feet. The Directive Principles of state policy though not legally enforced but given a clear direction to the Govt’s to work upon to full fill the ideals in preamble. The capitalist economy allows wider reach of opportunities to the Business and Red tapeism to Red carpet to business provide employment opportunities to the both skilled and unskilled workforce to India helps to ends the Poverty and Fraternity between the societies and classes.  As fraternity well exists between equals the new market avenues provides way for it. The National skill development Mission aims to harness the demographic dividend once harnessed pays a way for class less society and more matured, well educated, performance driven India in all spears this will achieve the Ideals enshrined in the economy with more meaning full way.

Though we had slight disturbances and short comings in the past on our path but they will not deter the spirit of Indians. The Ghar waps, Communal clashes, preaching no family planning to improve hold of Hinduism will always deter in modern educated society which shackles the fundamentalism with Ideal values gained to transformation with education.

The Key attributes enshrined in the constitution will always be relevant in the present context whether it’s a Socialist or Capitalist economy. The economic nature alone  will not dictates the path of Nation.

Topic: National Green Tribunal : By Jaimin Shah

Q. National Green Tribunal?

The National Green Tribunal (NGT) has been established under the NGT Act, 2010 on 18th October, 2010 is headed by Chairperson L.S. Panta, a Retired Supreme Court Judge.

The Tribunal has been established for the effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto.

The Law Commission in its 186th Report recommended for setting up of environmental courts in each State or for a group of States for exercising all powers of a civil court in its original jurisdiction and with appellate judicial powers against orders passed by the concerned authorities under the Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981, the Environment (Protection) Act, 1986, the Public Liability Insurance Act, 1991.

The Law Commission’s Report was considered in the Ministry. In view of the growing environmental challenges, it was decided to set up a green tribunal as a specialized body equipped with the necessary expertise to handle environmental disputes involving multi-disciplinary issues.

Q. What are the highlights of National Green Tribunal Act, 2010?

The Tribunal has the same powers as are vested in a civil court under the Code of Civil Procedure, 1908.

The Tribunal shall not be bound by the procedure laid down under the Code of Civil Procedure, 1908, but shall be guided by principles of natural justice.

The Tribunal’s dedicated jurisdiction in environmental matters shall provide speedy environmental justice and help reduce the burden of litigation in the higher Courts.

The Tribunal is mandated to make an endeavor for disposal of applications or appeals finally within 6 months of filing of the same.

Initially, the NGT is proposed to be set up at five places of sittings and will follow circuit procedure for making itself more accessible. The five places of its sitting are at Delhi, Bhopal, Pune, Kolkata and Chennai.

The Tribunal has the original jurisdiction over all civil cases where a substantial question relating to environment, including enforcement of any legal right relating to environment is involved.

The Tribunal shall hear disputes arising out of the implementation of environmental laws mentioned in Schedule I of the NGT Act, 2010.

The Government is empowered to add any Act of Parliament having regard to objectives of environmental protection and conservation of natural resources.

The Tribunal is competent to provide relief over and above as is admissible under the Public Liability Insurance Act, 1991. In order to ensure access to justice, pollution control boards and local authorities have also been empowered under the NGT Act to file an application or appeal before the Tribunal on behalf of the affected person.

Appeal against any order of the Tribunal shall lie to the Supreme Court.

No civil court shall have jurisdiction to entertain any appeal in respect of any matter which the Tribunal is empowered to determine under its appellate jurisdiction.

No injunction shall be granted by any civil court or other authority in respect of any order passed by the Tribunal.

At present, the Tribunal consists of Chairperson and 3 Expert Members and 2 Judicial Members. The Expert Members are experts in physical and life sciences, engineering and law including persons having practical knowledge and administrative experience in the field of environmental policy and regulation. The Ministry is in the process of filling up of the remaining vacancies of Members in the Tribunal since NGT Act, 2010 provides for a minimum of 10 Expert Members and equal number of Judicial Members.

Important Acts :The Charter Act of 1853, Indian Councils Act 1861 & 1909

The Charter Act of 1853

• Laid foundation of Parliamentary system of Government, the executive and legislative separated. Legislative Assembly functioned in the model of British Parliament.
• Renewed the term of East India Company for an indefinite period;
• Reduced the number of Board of Directors from 24 to 18 and 6 out of them were nominated;
• The 4th member became at par with other members as right to vote was conferred; and further added, 6 members known as 'Legislative Councillors'. Six Members were the Chief Justice and a puisne judge of Calcutta Supreme Court, and four representatives, one each from Bengal, Madras, Bombay and NWFP. Therefore, the total number of members became 10.
• Now it became: Governor-General, 6 members (Legislative Councillors), 4 members (Governor-General-in-Council), Commander-in-Chief.
• Indian Civil Service became an open competition. Macaulay made Chairman of the Committee.
• The Act for the first time introduced local representation in the Indian (Central) Legislative Council. The Governor-General's Council had six new legislative members were appointed by the local (provincial) governments of Madras, Bombay, Bengal and Agra.
• The Act separated, for the first time, the legislative and executive functions of the Governor-General's Council.

Indian Council Act of 1861

• The three separate presidencies (Madras, Bombay and Bengal) were brought into a common system
• System of legislative devolution in India was inaugurated.
• The Act added to the Viceroy's Executive Council a fifth member - a jurist.
• For purposes of legislation, the Viceroy's Executive Council was expanded by the addition of not less than six and not more than 12 additional members, who would be nominated by the Governor-General and would hold office for two years. Therefore, the total membership increased to 17.
• Not less than half of these members were to be non-officials.
• The legislative power was to be restored to the Council of Bombay and Madras, while Councils were allowed to be established in other Provinces in Bengal in 1862 and North West Frontier Province (NWFP) in 1886, Burma and Punjab in 1897.
• In 1859, Canning had already introduced the Portfolio system. Under this portfolio system, the work of the Government, divided into several branches, was entrusted to different members of the Governor General's council. The act of 1861 envisaged that the member in-charge of his department could issue final orders with regard to matters which concerned his department. In 1861, the portfolio system led to creation of some kind of cabinet system.
• In 1862, Lord Canning nominated three Indians to his legislative council-the Raja of Benaras, the Maharaja of Patiala and Sir Dinkar Rao.
• The Act added to the Viceroy's executive council a fifth member who was a jurist. For the purpose of legislation, the Viceroy's Executive Council was expanded by the addition of not less than 6 and not more than 12 additional members who would be nominated by the Governor-General and would hold office for two years. Not less than half of these members were to be non-officials.

Indian Council Act of 1909
• Councils were enlarged and direct elections were introduced. 
• An Indian was to be appointed member of Governor General's executive council. 5 nominated by Governor General
• 27 elected which consisted of: (2 by special electorates, 13 by general electorates, 12 by class electorates consisting of (a) 6 elected by land holders and (b) 6 elected by Muslim constituencies.
• Satyendra Prasad Sinha became the first Indian to join the Viceroy's Executive Council')
• The separate electorate was introduced. Lord Minto has been known as 'Father of Communal Electorate'

Justice Verma Committee Report Summery

Justice Verma Committee was constituted to recommend amendments to the Criminal Law so as to provide for quicker trial and enhanced punishment for criminals accused of committing sexual assault against women.  The Committee submitted its report on January 23, 2013.   Full Text of the Committee Report  (11 MB)

Background: On December 23, 2012 a three member Committee headed by Justice J.S. Verma, former Chief Justice of the Supreme Court, was constituted to recommend amendments to the Criminal Law so as to provide for quicker trial and enhanced punishment for criminals accused of committing sexual assault against women.  The other members on the Committee were Justice Leila Seth, former judge of the High Court and Gopal Subramanium, former Solicitor General of India.  The Committee submitted its report on January 23, 2013.  It made recommendations on laws related to rape, sexual harassment, trafficking, child sexual abuse, medical examination of victims, police, electoral and educational reforms.  We summarise the key recommendations of the Committee. Rape: The Committee recommended that the gradation of sexual offences should be retained in the Indian Penal Code, 1860 (IPC).  The Committee was of the view that rape and sexual assault are not merely crimes of passion but an expression of power.  Rape should be retained as a separate offence and it should not be limited to penetration of the vagina, mouth or anus.  Any non-consensual penetration of a sexual nature should be included in the definition of rape.  The IPC differentiates between rape within marriage and outside marriage.  Under the IPC sexual intercourse without consent is prohibited.  However, an exception to the offence of rape exists in relation to un-consented sexual intercourse by a husband upon a wife.  The Committee recommended that the exception to marital rape should be removed.  Marriage should not be considered as an irrevocable consent to sexual acts.  Therefore, with regard to an inquiry about whether the complainant consented to the sexual activity, the relationship between the victim and the accused should not be relevant.  Sexual assault:  Currently, “assault or use of criminal force to a woman with the intent to outrage her modesty” is punishable under Section 354 of the IPC with 2 years imprisonment.  The term outraging the modesty of a woman is not defined in the IPC.  Thus, where penetration cannot be proved, the offence is categorized as defined under Section 354 of the IPC. The Committee recommended that non-penetrative forms of sexual contact should be regarded as sexual assault.  The offence of sexual assault should be defined so as to include all forms of non-consensual non-penetrative touching of a sexual nature.  The sexual nature of an act should be determined on the basis of the circumstances.  Sexual gratification as a motive for the act should not be prerequisite for proving the offence.  The offence should be punishable with 5 years of imprisonment, or fine, or both. Use of criminal force to disrobe a woman should be punishable with 3 to 7 years of imprisonment. Verbal sexual assault: At present, use of words or gestures to “insult a woman’s modesty” is punishable with 1 year of imprisonment or fine or both under Section 509 of the IPC.  This section should be repealed.  The Committee has suggested that use of words, acts or gestures that create an unwelcome threat of a sexual nature should be termed as sexual assault and be punishable for 1 year imprisonment or fine or both.    Sexual harassment: Some of the key recommendations made by the Committee on the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012 that is pending in Parliament are provided below: Domestic workers should be included within the purview of the Bill.  Under the Bill the complainant and the respondent are first required to attempt conciliation.  This is contrary to the Supreme Court judgment in Vishakha vs. State of Rajasthan which aimed to secure a safe workplace to women.  The employer should pay compensation to the woman who has suffered sexual harassment. The Bill requires the employer to institute an internal complaints committee to which complaints must be filed.  Such an internal committee defeats the purpose of the Bill and instead, there should be an Employment Tribunal to receive and adjudicate all complaints. Acid attack:  The Committee opined that the offence should not be clubbed under the provisions of grievous hurt which is punishable with 7 years imprisonment under the IPC. It noted that the offence was addressed in the Criminal Laws Amendment Bill, 2012 which is currently pending in Parliament.  The Bill prescribes a punishment of imprisonment for 10 years or life.  It recommended that the central and state government create a corpus to compensate victims of crimes against women.  Offences against women in conflict areas:  The continuance of Armed Forces (Special Powers) Act (AFSPA) in conflict areas needs to be revisited.  At present, the AFSPA requires a sanction by the central government for initiating prosecution against armed forces personnel.  The Committee has recommended that the requirement of sanction for prosecution of armed forces personnel should be specifically excluded when a sexual offence is alleged.  Complainants of sexual violence must be afforded witness protection.  Special commissioners should be appointed in conflict areas to monitor and prosecute for sexual offences.  Training of armed personnel should be reoriented to emphasise strict observance of orders in this regard by armed personnel. Trafficking:  The Committee noted that the Immoral Trafficking Prevention Act, 1956 did not define trafficking comprehensively since it only criminalised trafficking for the purpose of prostitution.  It recommended that the provisions of the IPC on slavery be amended to criminalise trafficking by threat, force or inducement.  It also recommended criminalising employment of a trafficked person.  The juvenile and women protective homes should be placed under the legal guardianship of High Courts and steps should be taken to reintegrate the victims into society. Child sexual abuse: The Committee has recommended that the terms ‘harm’ and ‘health’ be defined under the Juvenile Justice Act, 2000 to include mental and physical harm and health, respectively, of the juvenile.           Punishment for crimes against women: The Committee rejected the proposal for chemical castration as it fails to treat the social foundations of rape.  It opined that death penalty should not be awarded for the offence of rape as there was considerable evidence that death penalty was not a deterrence to serious crimes.  It recommended life imprisonment for rape. Medical examination of a rape victim: The Committee has recommended the discontinuation of the two-finger test which is conducted to determine the laxity of the vaginal muscles.  The Supreme Court has through various judgments held that the two-finger test must not be conducted and that the previous sexual experience of the victim should not be relied upon for determining the consent or quality of consent given by the victim.      Police reforms: The Committee has recommended certain steps to reform the police.  These include establishment of State Security Commissions to ensure that state governments do not exercise influence on the state police.  Such Commissions should be headed by the Chief Minister or the Home Minister of the state.  The Commission would lay down broad policy guidelines so that the Police acts according to the law.  A Police Establishment Board should be established to decide all transfers, postings and promotions of officers.  Director General of Police and Inspector General of Police should have a minimum tenure of 2 years.  Reforms in management of cases related to crime against women:  A Rape Crisis Cell should be set up.  The Cell should be immediately notified when an FIR in relation to sexual assault is made.  The Cell must provide legal assistance to the victim.  All police stations should have CCTVs at the entrance and in the questioning room.  A complainant should be able to file FIRs online.  Police officers should be duty bound to assist victims of sexual offences irrespective of the crime’s jurisdiction.  Members of the public who help the victims should not be treated as wrong doers.  The police should be trained to deal with sexual offences appropriately. Number of police personnel should be increased.  Community policing should be developed by providing training to volunteers. Electoral reforms: The Committee recommended the amendment of the Representation of People Act, 1951.  Currently, the Act provides for disqualification of candidates for crimes related to terrorism, untouchability, secularism, fairness of elections, sati and dowry.  The Committee was of the opinion that filing of charge sheet and cognizance by the Court was sufficient for disqualification of a candidate under the Act.  It further recommended that candidates should be disqualified for committing sexual offences.  Education reforms:  The Committee has recommended that children’s experiences should not be gendered.  It has recommended that sexuality education should be imparted to children.  Adult literacy programs are necessary for gender empowerment. Source: http://www.prsindia.org/

Special Category status and centre-state finances

“No one can ignore Odisha’s demand. It deserves special category status. It is a genuine right,” said Odisha Chief Minister, Naveen Patnaik, earlier this month. The Odisha State assembly has passed a resolution requesting special category status and their demands follow Bihar’s recent claim for special category status.

The concept of a special category state was first introduced in 1969 when the 5th Finance Commission sought to provide certain disadvantaged states with preferential treatment in the form of central assistance and tax breaks. Initially three states Assam, Nagaland and Jammu & Kashmir were granted special status but since then eight more have been included (Arunachal Pradesh,  Himachal Pradesh,  Manipur, Meghalaya, Mizoram, Sikkim, Tripura and Uttarakhand). The rationale for special status is that certain states, because of inherent features, have a low resource base and cannot mobilize resources for development. Some of the features required for special status are: (i) hilly and difficult terrain; (ii) low population density or sizeable share of tribal population; (iii) strategic location along borders with neighbouring countries; (iv) economic and infrastructural backwardness; and (v) non-viable nature of state finances. 1 The decision to grant special category status lies with the National Development Council, composed of the Prime Minster, Union Ministers, Chief Ministers and members of the Planning Commission, who guide and review the work of the Planning Commission.

In India, resources can be transferred from the centre to states in many ways (see figure 1). The Finance Commission and the Planning Commission are the two institutions responsible for centre-state financial relations.

Figure 1: Centre-state transfers (Source: Finance Commission, Planning Commission, Budget documents, PRS)

Planning Commission and Special Category

The Planning Commission allocates funds to states through central assistance for state plans. Central assistance can be broadly split into three components: Normal Central Assistance (NCA), Additional Central Assistance (ACA) and Special Central Assistance. NCA, the main assistance for state plans, is split to favour special category states: the 11 states get 30% of the total assistance while the other states share the remaining 70%.  The nature of the assistance also varies for special category states; NCA is split into 90% grants and 10% loans for special category states, while the ratio between grants and loans is 30:70 for other states.

For allocation among special category states, there are no explicit criteria for distribution and funds are allocated on the basis of the state’s plan size and previous plan expenditures. Allocation between non special category states is determined by the Gadgil Mukherjee formula which gives weight to population (60%), per capita income (25%), fiscal performance (7.5%) and special problems (7.5%).  However, as a proportion of total centre-state transfers NCA typically accounts for a relatively small portion (around 5% of total transfers in 2011-12).

Special category states also receive specific assistance addressing features like hill areas, tribal sub-plans and border areas. Beyond additional plan resources, special category states can enjoy concessions in excise and customs duties, income tax rates and corporate tax rates as determined by the government.  The Planning Commission also allocates funds for ACA (assistance for externally aided projects and other specific project) and funds for Centrally Sponsored Schemes (CSS). State-wise allocation of both ACA and CSS funds are prescribed by the centre.

                                                          Finance Commission

Planning Commission allocations can be important for states, especially for the functioning of certain schemes, but the most significant centre-state transfer is the distribution of central tax revenues among states. The Finance Commission decides the actual distribution and the current Finance Commission have set aside 32.5% of central tax revenue for states. In 2011-12, this amounted to Rs 2.5 lakh crore (57% of total transfers), making it the largest transfer from the centre to states. In addition, the Finance Commission recommends the principles governing non-plan grants and loans to states.  Examples of grants would include funds for disaster relief, maintenance of roads and other state-specific requests.  Among states, the distribution of tax revenue and grants is determined through a formula accounting for population (25%), area (10%), fiscal capacity (47.5%) and fiscal discipline (17.5%).  Unlike the Planning Commission, the Finance Commission does not distinguish between special and non special category states in its allocation.

1. Lok Sabha unstarred question no. 667, 27 Feb, 2013, Ministry of Planning ↩

Source:http://www.prsindia.org

The National Policy for Children, 2012

The Union Cabinet today gave its approval to the National Policy for Children, 2012. The Policy reaffirms the government's commitment to the realisation of the rights of all children in the country. It recognizes every person below the age of eighteen years as a child and that childhood is an integral part of life with a value of its own, and a long term, sustainable, multi-sectoral, integrated and inclusive approach is necessary for the harmonious development and protection of children. 

The policy lays down the guiding principles that must be respected by national, state and local governments in their actions and initiatives affecting children. Some of the key guiding principles are: the right of every child to life, survival, development, education, protection and participation; equal rights for all children without discrimination; the best interest of the child as a primary concern in all actions and decisions affecting children; and family environment as the most conducive for all-round development of children. 

The policy has identified survival, health, nutrition, education, development, protection and participation as the undeniable rights of every child, and has also declared these as key priority areas. 

As children's needs are multi-sectoral, interconnected and require collective action, the policy aims at purposeful convergence and strong coordination across different sectors and levels of governance; active engagement and partnerships with all stakeholders; setting up of a comprehensive and reliable knowledge base; provision of adequate resources; and sensitization and capacity development of all those who work for and with children. 

A National Plan of Action will be developed to give effect to the policy and a National Coordination and Action Group (NCAG) will be constituted to monitor the progress of implementation. Similar plans and coordination and action groups will be constituted at the state and district levels. The National Commission for Protection of Child Rights and State Commissions for Protection of Child Rights are to ensure that the principles of the policy are respected in all sectors at all levels. There is a provision for review of the policy every five years. The Ministry of Women and Child Development will be the nodal ministry for overseeing and coordinating the implementation of the policy and will lead the review process. 

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Doublespeak on electoral reforms

The paid news case is no longer just about Ashok Chavan. It concerns every individual and institution opposed to the sway of money power in elections

Politicians everywhere are known to indulge in doublespeak and our politicians are no exception. But some recent pronouncements of our Law Minister only show that our politicians may have very few serious rivals in this sport. Not long ago, the Minister was all praise for the Election Commission of India’s real time and effective monitoring of election expenses.

Now the same Minister has told the Supreme Court that the Election Commission is not concerned with the correctness or otherwise of the account of election expenses submitted by a candidate. In other words, the government wants the Commission to do an outstanding non-job!

Sound ‘investment’

That the candidates in our Assembly and Parliament elections spend huge amounts, many times over the prescribed ceiling, on election expenditure is no secret. They seem to have come to realise that this is an investment capable of giving phenomenal returns which no other enterprise could rival and, so, the best way of getting rich quicker. No wonder, therefore, that even panchayat elections boast of huge expenditures incurred by the contestants. That some unscrupulous sections of the media found innovative ways to help themselves to some part of this huge expenditure during election time is too well documented by now. It is also common knowledge that the effort has been raised to a fine art, prescribing different rates, a base rate for coverage to a paying candidate and none for his non-paying rival, and a premium rate for high and sustained praise for the payer, and hell and damnation for his rival.

The Press Council of India (PCI) gave the first opening to the Election Commission to take deterrent action in this new game christened ‘paid news,’ when the ECI followed up a PCI finding in respect of a candidate in the 2007 elections to the Uttar Pradesh Assembly, and disqualified her by using its powers under Section 10 A of the Representation Of The People Act, 1951.

But when the Election Commission was approached to exercise that very power in the case of the then Chief Minister of Maharashtra, Ashok Chavan, who, contesting the 2009 election to the Maharashtra Assembly, was alleged to have indulged in ‘paid news’ in a big way as found by an intrepid journalist after meticulous investigation, the Law Ministry seems to have woken up to the danger of a determined ECI exercising its power. Wanting to stop the Election Commission in its tracks, it has filed an affidavit before the Supreme Court seeking a ‘plain reading’ of that section of the law that was examined and interpreted beyond a shade of doubt by a three-judge Bench of the Supreme Court in the R. Shivarama Gowda Vs P.M. Chandrasekhar case (AIR 1999 SC 252).

The Election Commission seems to have unwittingly fallen into a trap in answering, through an interim order, the jurisdictional issue — apparently a red herring — raised by Mr. Chavan in the proceedings initiated before it. In the light of the unambiguous decision of the three-judge bench of the Supreme Court — which leaves little scope for any speculation on the issue of the powers of the ECI under Section 10A of the Act — the Election Commission could have gone ahead without harbouring any doubt. Nor should it have let anybody cast doubt and much less allowed him to get away with it. But that was not to be. The order of the Election Commission on the issue of jurisdiction, rejecting the objection raised by Mr. Chavan, the respondent, was challenged before the High Court in Delhi. Having lost the case there, Mr. Chavan has gone to the Supreme Court in an LPA (Letters Patent Appeal). Precious time has been lost in the process and the case initiated in November 2009 has yet to cross the first hurdle — three years down the line.

The government has joined Mr. Chavan in challenging the Election Commission’s power to disqualify a candidate under Section 10A of the Act for his failure to submit a correct and true rendering of his election expenditure.

The three-judge Bench of the Supreme Court lucidly brought out the scheme of the Act and the issues that have to be agitated in an election petition under Section 100 of the Act before the High Court where the remedy sought will be the unseating of the winner on the ground of corrupt practices, one of which is exceeding the limit on expenditure. No such election petition lies against any candidate except the winner. In contrast, Section 10 A can be invoked against any candidate on the ground of submitting a false or incorrect rendering of his election expenses. If proved, it will result in the disqualification for a maximum of three years even if he were the winning candidate.

The volte face

But suddenly this power is sought to be nullified. It is interesting to note that the Government Representative did not make this plea when the Ashok Chavan petition was heard by the Delhi High Court. On the contrary, the ASG did not support the petitioner’s plea that the 1955 decision of the Election Tribunal in Sucheta Kriplani Vs S.S. Dulat case (AIR 1955 SC758) was applicable to his case. The volte face by the government is, therefore, surprising. One is not sure whether the dramatis personae has suddenly assumed importance or the true import of the provision in Section 10A has dawned late, which has led to the Law Ministry taking up cudgels on behalf of Mr. Chavan before the Supreme Court.

Whatever the reason, it is clear that in advancing this plea and trying to whittle down the powers of the Election Commission, the government, contrary to its oft-repeated vehement concerns and commitment to curb money power and paid news in elections, is actually intent on perpetuating the same by making the Election Commission powerless to act even when the submitted accounts of election expenses are absurd in the extreme. That political parties and politicians are reluctant to initiate any electoral reform is no longer a secret. But a government working to undermine the ECI is the news now or a ‘scandal’ as The Hindu editorial called it.

The case before the Supreme Court is no longer one of Dr. Kinhalkar and others vs Ashok Chavan. It concerns every individual and institution that is uneasy about and opposed to the sway of money power in elections. In the last few years, the ECI has done a commendable job to monitor and tackle the menace of unbridled expenditure in elections. It has set up a monitoring division and monitoring arrangements down to the district level and is also closely interacting with government agencies like the Income Tax department to bring the offenders to book. With its customary policy of sharing information widely and transparently, the Election Commission has made it possible for interested civil society groups to get information from candidates’ affidavits and is providing similar access to the accounts they file by putting the abstract on the website. It has moved proactively to seek an amendment to the rule that allows 30 days to a candidate to file accounts and just 15 days thereafter to file an election petition before the courts by seeking more time for filing petitions. The ECI’s powers under Section 10 A can be invoked against all candidates, winners or losers, and if that is denied to it, only the winner’s election can be challenged in the High Court and that too only if it can be shown that he has breached the ceiling on expenditure.

Reprehensible

If the ECI’s powers are curbed, the whole activity of regulating election expenditure will come to a standstill with none having the authority to question and discipline the wrong-doers. If the government is aware of this, has thought about it, and has yet gone ahead to seek through its affidavit to the Supreme Court a ‘plain reading’ of the provisions of Section 10 A, a euphemism for negating the law laid down by the 1999 Supreme Court judgment, it is nothing but reprehensible.

The need of the hour is for civil society activists, NGOs and other concerned citizens to get together and voice their opinion against this calculated attack on the Election Commission’s powers. They would be well advised to go before the Supreme Court expressing their opposition to the government’s stand because the distortion being attempted can be allowed to go unchallenged only at the peril of democracy, and free and fair elections.

(N. Gopalaswami is a former Chief Election Commissioner of India)

The Street vendors(Protection of Livelihood and Regulation of Street Vending)Bill 2012

Summary of decisions taken by the Cabinet Committee on Investment since 30th January 2013

The Cabinet in its meeting held on 13.12.2012 approved the proposal of D/o Economic Affairs for constituting a new Cabinet committee on Investment. Accordingly, the Cabinet Committee on Investment was constituted by the Cabinet Secretariat letter no 1/11/3/2012-Cab dated 02.01.2013. The functions of the Committee are as under:

(i) to identify key projects required to be implemented on a time-bound basis, involving investment of Rs 1000 cr or more, or any other critical projects, as may be specified by the Committee, in sectors such as infrastructure, manufacturing, etc.; 
(ii) to prescribe time limits for issue of requisite approvals and clearances by the Ministries/Departments concerned in respect of projects in identified sectors;
(iii) to monitor the progress of identified projects including the time prescribed/taken to obtain each approval each approval/clearance and delays, if any; 
(iv) to review implementation of projects, that have been delayed beyond the stipulated timeframe, including issues causing delay in grant of clearance/approvals; 
(v) to review the procedures followed by Ministries/Departments to grant/refuse approvals and clearances; 
(vi) to take decision regarding grant/refusal of approval/clearance of specific projects that are unduly delayed , if deemed necessary; 
(vii) to consider and decide measures required for expeditiously granting/refusing approvals/clearances in identified sectors including simplification of rules/procedures followed by the respective Ministries/Departments for decision making; and
(viii) to require statutory authorities to discharge functions and exercise powers under the relevant law/regulation within the prescribed time frames for promoting investment and economic growth. 

2. Accordingly, all the concerned Ministries/Departments have been requested to review projects, both in public and private sectors, having investment of Rs 1000 cr or more that are pending on account of delay in according clearances/approvals and to formulate and circulate the proposals for the consideration of the CCI, after due inter-ministerial consultations, in respect of such delayed projects. If the Administrative Ministry/ Department feels that a proposal needs to be considered by the Committee of Secretaries first, it should send a note/proposal for consideration by the Committee of Secretaries to the Cabinet Secretariat. 

3.Security Clearance for Exploration and Production activities in NELP Blocks

3.1 In the first meeting of the CCI held on 30.1.2013, the proposal of M/o Petroleum and Natural Gas regarding “Clearance for Carrying Out Exploration and Production Activities in NELP Oil & Gas Blocks” was considered. The contracts for 40 blocks under consideration were awarded between April 2000 and June 2010. However, security clearance was withdrawn between February 2010 and May 2012. The issue was pending since then. According to the Ministry of Petroleum & Natural Gas, an investment of US$ 13.42 billion has already been made in these 40 blocks and an investment of US$ 2.542 billion is envisaged in the next 3-4 years. The Committee noted that exploration and production activities have been allowed by Ministry of Commerce in respect of one block. The CCI directed M/o Petroleum & Natural Gas and M/o Defence to evolve workable solution in respect of seven blocks within 30 days and to examine the conditions attached by the M/o Defence in respect of 32 blocks in terms of their essentiality and/or feasibility within 3 months. 

3.2 The CCI in its meeting held on 20.3.2013 considered the proposal of the M/o Petroleum and Natural Gas and approved the conditional clearance given in respect of 5 blocks. Total investment made in these blocks is US$ 10.546 billion (about Rs 56,921 cr) and investment envisaged is US$ 0.29 billion (about Rs 1,566 cr). The bottlenecks in respect of other 31 other blocks are in advanced stage of resolution. The CCI has directed that outstanding issues be resolved within a week. 

4. Pooling of Price of Imported Coal with Domestic Coal 

Investment made in a number of thermal power projects are not being optimally utilized at present due to shortage of domestic coal. This situation could be remedied by plugging the gap between demand and supply through import of coal. However, the price of imported coal is higher than the price of domestic coal. In view ofthis,on 5.2.2013, the Cabinet Committee on Economic Affairs considered the proposal of the Ministry of Coal regarding “Pooling of Price of Imported Coal with Domestic Coal” and approved the broad guidelines for the pricing and pass through of higher cost of the imported coal. The Committee also directed that the proposal based on the approved guidelines be placed within 5 weeks. 

5. Location of North Karanpura Super Thermal Power Project of NTPC 

In the second meeting of the CCI held on 20.02.2013, two proposals, one each of the M/o Coal and M/o Power regarding North Karanpura Super Thermal Power Project (NKSTPP)(3*660 MW) by NTPC. The project location falls in a potential coal bearing area containing coal reserve of about 6 billion tonne.The project has been pending since March 2000 on the issue of the location of the project. The CCI decided that the power plant be constructed at the present site with some specific conditions. The Committee also decided, in principle, to restore the original coal linkage granted to the plant with certain stipulations. According to the Ministry of Power, this project would lead to an investment of about Rs 14000 cr and generation of 1980 MW of power. 

6. Environment and Forest Clearance to Coal Mining projects

The CCI, in its meeting held on 20.02.2013, considered the proposal of the Ministry of Coal regarding fast tracking of the approvals for the Environment and Forest Clearances in respect of 12 coal mining projects. According to the Ministry of Coal, these 12 projects would lead to annual coal production of 36.97 Million Tonne and an investment of Rs 1347.63 cr. The Committee noted that in respect of six coal mines, environment clearance has been accorded and directed that in respect of remaining cases relating to environment/forest clearances, Secretary, Ministry of Environment & Forests and Secretary, Ministry of Coal will hold mutual discussions and finalize within one month, the time-frame for processing such cases. 

7. Decision taken to streamline the processes relating to Environment and Forest Clearances: Meeting of the CCI held on 20 March 2013 

7.1 To help boost investments in the critical sectors of the economy, a number of steps have been taken in the last three months to streamline the process of granting forest and environment clearances. The CCI, in its meeting held on 20.03.2013 reviewed the progress made in this regard so far and set deadlines for the activities that are yet to be completed. 

7.2 Environment Clearance (EC) for mining projects

7.2.1 For one time capacity expansion of 25% or less, coal mining projects have now been exempted from public hearing provided that public hearing had taken place at the time of obtaining the existing EC and the mining is confined to the existing lease area. This would help boost production of coal which is in short supply in the country. MoEF informed the CCI that an OM has been issued to this effect on 19.12.2012. 

7.2.2 It has also been decided that no fresh EC shall be required for a mining project at the time of renewal of mining lease, if EC was obtained under the EIA Notification of 2006. In this regard, the required Notification has been sent to the printing press for publication. CCI directed MoEF to ensure within a week that similar dispensation is made for projects that had obtained EC under the EIA Notification of 1994. 

7.3 Environment Clearance (EC) and Forest Clearance (FC) for linear projects. 

7.3.1 In order to protect the rights of STs and Other Forest Dwellers (STOFD) under the Forest Rights Act, the MoEF in its guidelines of 03.08.2009 had made it mandatory to get the consent of all the Gram Sabhas whose lands were involved in a project. Linear projects like roads, transmission lines etc. generally pass through a large number of villages. A number of projects were getting delayed as obtaining consent of each Gram Sabha is time consuming. The CCI was informed that an OM has been issued on 05.02.2013 whereby such projects are now exempt from obtaining the consent of Gram Saha provided that the rights of the Primitive Tribal Groups/Pre-agricultural Communities are not affected and the State Government has certified that all rights under the Forest Rights Act have been recognized and vested. This would help enormously reduce the time taken in obtaining FC and would also ensure that the rights of STOFD are fully protected. 

7.3.2 Many a time linear projects involve only small stretches of forest land. Earlier work could not be taken up even on the non-forest portion unless FC was available for the forest land. CCI was informed that this anomaly has been removed through an OM that MoEF issued on 07.01.2013. Now, work on non-forest part can begin (subject to certain conditions) during the pendency of the FC. 

7.3.3 Based on the order passed by the Supreme Court in the Lafarge matter, EC for a project is not being granted unless FC has been granted first. Therefore, pending FC work cannot begin in the non-forest portion of a linear project despite the easing of norms as described in para7.3.2 above. On being approached by the MoEF, the Supreme Court on 12.03.2013 has allowed delinking of EC and FC in case of linear projects. The CCI directed MoEF that the requisite guidelines to delink the grant of EC and FC for linear projects should be issued expeditiously. 

7.3.4 In its judgment dated 27.02.2012, the Supreme Court has made it mandatory (until rules are framed under MMDR Act) to obtain EC even for mining of minor mineral which includes brick/ordinary earth. Therefore, in the States, where relevant rules are yet to be framed, digging of earth for highway projects requires EC. The CCI was informed that an OM has been issued on 18.12.2012 obviating the need for obtaining a separate environment clearance for mining of soil/earth from borrow areas of highway projects. Further, based on experience gained, it is proposed to amend this OM to the effect that broad coordinates of areas from which borrow area may be selected, may be provided by the project proponent at EC stage instead of the TOR stage; and that likely impact on environment due to proposed mining of soil/earth may also be provided at EC stage instead of at the ToR stage. The CCI directed the MoEF to issue the requisite amendment expeditiously. 

7.4 Environment Clearance (EC) and Forest Clearance (FC) for other projects

7.4.1 Under MoEF’s letter dated 13.05.2011, no FC is required for creation of certain critical infrastructure involving less than 5 Ha forest land in 60 identified districts. The CCI was informed that through OM dated 10.12.2012 this has been extended to 22 more districts and through OM dated 01.02.2013 this exemption has further been extended to all categories of roads and quarrying of materials used in construction of public roads. 

7.4.2 The CCI was informed that, through OM dated 01.11.2012 EC procedure for SEZs has been brought in line with the framework prescribed for NIMZs under the National Manufacturing Policy. This would allow the State Govts. to delegate powers to the State Pollution Control Boards and would exempt individual units from public hearing, if the SEZ, as a whole, has undergone public hearing. 

7.4.3 The CCI was informed that a Committee has been constituted under Dr. K. Kasturirangan, Member, Planning Commission, to review the provisions of EIA Notifications, 2006 relating to building, roads and SEZ projects. The Committee is to give its report by 22.03.2013. The CCI directed the MoEF that the decisions on the recommendations of the Committee should be taken expeditiously. 

7.4.4 An Expert Committee has been constituted on 30.01.13 to further streamline EC processes. The issue relating to mandatory EC for brick earth and ordinary earth from areas less than 5 Ha has been referred to this Committee. The Committee has given its recommendations which are under examination. The CCI directed MoEF to complete the requisite action within a month.