Administration of Tribal Areas

Administration of  Tribal  Areas

Areas under Schedule 6

Assam 1. North Cachar Hills
2. Karbi Anglong
3. Bodoland
Meghalaya 1. Khasi Hills
2. Jaintia Hills
3. Garo Hills
Tripura Tripura Tribal Areas District
Mizoram 1. Chakma
2. Mara
3. Lai

Need of 6th Schedule

  • Tribes of other states have more or less assimilated with culture of majority of people where they live but Tribes in these states still have their roots in their own culture .
  • Needs to be treated differently . As a result,  sizable autonomy given to them in Governance

Features of 6th Schedule

  • Tribal Areas in these areas to be called Autonomous Districts but fall inside authority of State concerned
  • If more Tribes in Autonomous District ,then Governor can divide district to various Autonomous Regions
  • Each A.D has District Council consisting of 30 members
26 Elected by Universal Adult Franchise . Tenure of 5 years
4 Nominated by Governor and hold office till pleasure of Governor
  • Each Autonomous Region has separate Regional Council
  • Legislative power – District and Regional Councils administers area under them and can make laws on specified matters like land , forest, canal water, shifting agriculture, money lending etc . But  these laws require assent of Governor
  • Councils empowered to collect revenue and impose tax on specified things
  • Acts of Parliament and State assembly don’t apply to these areas or apply with certain modifications

Jan 2019 : Union cabinet approved  constitutional amendment stating that Finance Commission will now “recommend the devolution of financial resources” to the district councils in the Sixth Schedule areas.

Analysis of working of 6th Schedule

  • Representation Issues
    • Demography has changed a lot over last six decades but changes are not effectively represented in the structure of Autonomous District Councils (ADCs)
    • Women need to be represented in them . Unlike in Panchayati Raj Institutions , there isn’t any provision of reservation wrt women
  • Governance Issue
    • Poor quality of governance . Many of them have not codified even the customary laws
    • Corruption and illegal activities –  Some members of autonomous council are helping the extremist group factions. North Cachar autonomous council is under scrutiny of CBI and NIA
  • Financial Issues
    • Financial dependence on the state and centre for funds
    • No provisions regarding Audit of accounts 
    • State Finance Commission is not constitutionally bound to include Terms of References wrt Schedule 6 Areas . They don’t get any grants like PRIs and hence are always under Financial Crunch
  • Issues wrt Elections
    • No  express  provision  for  holding  election  within 6 months  of  the  date  of  dissolution  of  a  District Councils.
    • In elections , no Model Code of Conduct and no expenditure ceiling.  
    • Anti Defection Laws are not applicable.
  • No further decentralisation – ADCs have not gone for further decentralisation and not formed Autonomous Regions and Regional Councils in case there are more tribes  .  For example in Bodo Territorial Area districts, there is only district council although there are other Tribes in that region too.
  • Concept  of  Sixth  Schedule   has  encouraged ethnic  divisions. 

Measures to improve working of 6th Schedule

  • Training and capacity building of Autonomous District Council Members for healthy governance.
  • Regular elections should be conducted by State Election Commissions
  • Create a permanent watchdog with powers to order inquiry and initiate actions when irregularities are discovered
  • Many activities are undertaken by State Government as well as District Councils. This duplication is a major source of confusion and obfuscates responsibility. Clarity of functions and roles is needed.
  • Venkatachaliah  Commission,  2002 (recommendations)
    • Audit of accounts  by  the  Comptroller and  Auditor-General  of  India.
    • Make  the  Anti-Defection  Law   applicable  to  the  Sixth  Schedule areas.
  • Ramachandran  Committee, 2007 (recommendations)
    • Remove overlaps  in  functional  responsibilities  between  the States  and District  Councils.
    • Need to constitute State Finance Commission for recommending ways to devolve  funds to District Councils & Regional Councils
  • 14th Finance Commission (recommendations)
    • Finances of 6th Schedule Areas should also be looked at par with Panchayati Raj Institutions

125th Constitutional Amendment Bill

Bill Following are the issues the bill seeks to address:

  • Bill proposes that Finance Commission will now recommend the financial devolution to the Autonomous District council.
  • Bill increases the number of members in some council  (more than 30) considering demands  that some councils were not able to represent major and minor tribes
  • Reserves at least one-third of the seats for women in the village and municipal councils.

Union Territories

Union Territories

U.T are those areas which are under direct administrative control of Central Government.  This  is a Conspicuous departure from federalism in India .

Creation of Union Territories

Why they are created ?

Different reasons

Political & Administration  considerations Delhi & Chandigarh
Cultural Distinctiveness Pondicherry, Daman & Diu , Dadra & Nagar Haveli
Strategic Importance Andaman & Nicobar + Lakshadweep
Special Treatment of Backward & Tribals Mizoram, Manipur, Tripura(later granted statehood)

Administration of Union Territories

  • Article 239 to 241 of Part VIII
  • Administered by  President through Administrator appointed by him. But Administrator is just agent of President & not head of U.T like Governor
  • Different Nomenclature for agent –  Lt. Governor (LG), Administrator & Chief Commissioner
  • Pondicherry(1966) & Delhi(1992) are provided with Legislative Assembly . But this doesn’t diminishes the supreme control of President & Parliament over them
  • Parliament can make law over all three lists and this power extends to Delhi & Pondicherry too . But in addition with that their Legislative Assemblies can also make laws on state & concurrent list( in case of conflict , central law prevails )
  • President can make regulations for peace & good governance of U.Ts of A&N, Lakshadweep, Dadra &Nagar Haveli and Daman &Diu (not Chandigarh) & these regulations have force of Act of Parliament
  • Parliament can establish High Court for U.T or put it under Jurisdiction of High Court of adjacent state (Note : only Delhi has separate High Court)
  • Constitution don’t contain  separate provisions for administration of acquired territories & same provisions apply to them as that of Union Territories

Home Minister’s Advisory Committees for U.T

  • Made under Government of India(Allocation of Business) Rules 1961
  • Made for all 5 UTs without legislature
  • Consist of Administrator + Member of Parliament + Members from Local Bodies
  • Committee discuss general issues relating to social & economic development of U.Ts

Election Funding

Election Funding

History

1969 In 1969, PM Indira Gandhi government amended the Companies Act and imposed a total ban on corporate funding given to political parties.

Reason :
1. Official Reason : To remove political corruption
2. Real Reason : Cut wings of Syndicate within Congress which had good relations with Business houses + Increasing Corporate Support to Right wing Swatantra Party and Jana Sangha

Result : This eliminated the most important  source of election funds to parties without providing an alternative financing mechanism (such as state funding) &   effectively pushed campaign finance underground . 
1985 Rajiv Gandhi Government legalised Corporate Funding recognising previous mistake
But Corporates still prefers to give fund under the table in order to avoid retribution from other party 

Problem 1 : Transparency 

  • Loophole in Representation of People Act :  All the income of Political Parties are tax exempted provided , they file return of income to IT Department and they tell the source  of donations above 20,000 to Election Commission of India annually . Most political parties show donations of less than 20,000 from individuals as their main source  .
  • Data to corroborate this
    • According to Association for Democratic Reforms (ADR) 
      • 69% of Funding of parties is from  undisclosed sources
      • In Regional parties , Undisclosed Funding is even more .
        1. Samajvadi Party =  94%
        2. Shiromani Akali Dal = 86%
  • Despite provisions under section 29 of Representation of People Act, 1951, parties do not submit their annual audit reports to Election Commission of India
  • Parties are  also  out of the ambit of Right to Information act.

Problem 2 : Issue on spending in Elections 

  • Capped Expenditure is for period starting from  EC notification , whereas parties actually start spending money on campaigns much before that.
  • There is no ceiling on party election expenditure — only candidates’ expenses are capped

Ceiling on election expenditure

(From 2014) Lok Sabha Assembly
Bigger States ₹70 Lakh ₹28Lakh

Problem 3: Problem with IT ACT 1961:

  • Section 13A of IT act 1961 provide tax exemption to Political Parties for income from house property, voluntary contribution, capital gains and other sources.  Case may occur where Political Parties may be formed only for the sake of avoiding income tax for the property

Remedies  wrt Funding of Political Parties

  • Bring Political Parties under Right to Information
  • Increase number of days for campaigning . This was done in Britain and is successful
  • State FinancingIndrajit Gupta Committee, 255th Law Commission Report  & 2nd ARC Report  has also favoured this .  (for more on State Funding, Click here)
  • Limit on Total Undisclosed Funding that parties can accept : Law Commission  and Election Commission favoured this . Undisclosed money  should be 20 Crore or 20% of total funding of party (whichever is less) .

Anti-Defection Law

Anti-Defection Law

‘Defection’ has been defined as, “To abandon a position or association, often to join an opposing group”.

Politics of Defection

  • Surge in defection was first seen after 4th Lok Sabha in 1967 when out of 16 states , Congress wasn’t able to get clear Majority in 8 states
  • No party was in clear majority and as a result frequent Defections were seen to topple the governments. In 17 months, 17 governments changed in states due to defectors 

Reasons of Defection

  • Death of main leader resulting in fight between earlier equals (ie Ministers) to become Chief Minister or Prime Minister
  • Total absence of ideology in Politics. As a result of its absence, legislators don’t shy while changing parties
  • Various factions within the parties. When particular faction  perceive that other faction is getting more power, they indulge in defections
  • Lure of Ministerial Posts
  • Tremendous gap between emoluments , status and other benefits to Minister and Ordinary Legislator

52nd Amendment Act,1985  &  91st Amendment Act,2003

  • In our original constitution , there wasn’t any provision for Anti Defection
  • These were added through 52nd Amendment, 1985 & 91st Amendment ,2003
  • It added 10th Schedule to Indian constitution.

Provisions of 10th Schedule

Provision 1 : Provisions for Members elected as officers of the house

  • They are allowed to leave their party  while in the office  but they are not allowed to leave their own party & join other party

Provision 2 : Members who are elected but are independent

  • If he join any political party after election , then he would be charged under Anti Defection Laws

Provision 3 : Nominated Members

  • If any member is nominated & he doesn’t belong to any party , he/she has full freedom to join any party within 6 months of nomination but after expiration of this period ,he would be liable to be tried under Anti Defection laws 

Provision 4 : Elected Member belonging to any political Party

There are two grounds for application of Anti Defection Laws

  • If he/she  voluntarily gives up the membership of the party
  • Votes or abstains from voting in legislature, contrary to the direction (whip) of the party. 

Supreme Court in it’s previous judgements has ruled that “voluntarily giving up the membership of the party” is not synonymous with “resignation”. It could be “implied” in participation of the member in anti-party activities

Provision 5 : Exceptions to 10th Schedule

There were two exceptions in original Amendment (52nd Amendment ,1985) ie Split and Merger but 91st Amendment repealed Split.

Split This has been repealed  through 91st Amendment
Exemption from disqualification in case of split  by 1/3rd members of part  
Merger This provision is still present
Will not be disqualified  when atleast 2/3rd members agrees to such merger

Provision 6 : Deciding Authority

  • Chairman of House & his decision shall be final

Provision 7 : Caveat

  • There is no time limit for leader/chairman of house to decide on matter of disqualification

Kihoto Hollohan vs Zachilhu, 1993

  • Supreme Court declared this provision to be unconstitutional
  • Supreme Court Argued
    • It bars jurisdiction of Supreme Court & High Court . To bar jurisdiction of Supreme Court /High Court , Amendment must be passed by Special Majority by both houses + ratified by 50% of state legislature
    • While operating under the Anti-defection Law, the Speaker was in the position of a tribunal and therefore, his decisions like those of all tribunals were subject to judicial review.’
  • Present Situation : there may not be any judicial intervention until the Presiding officer gives his order. However, the final decision is subject to appeal in the High Courts and Supreme Court.

Advantages of Anti Defection Law

  1. Provides greater stability in the politics of nation
  2. Facilitates democratic realignment of parties in legislature by way of merger of parties
  3. Reduces corruption at political level
  4. Give clearcut constitutional recognition for existence of political parties for first time

Criticism of Anti Defection Law

  1. It’s vesting of decision-making authority in the Presiding officer is criticized on two grounds.
    • He may not exercise this authority in an impartial manner due to political exigencies.
    • He lacks the legal knowledge and experience to adjudicate upon the cases. 2 Speakers of the Lok Sabha (Rabi Ray-1991 and Shivraj Patil-1993) have themselves accepted this
  2. Increased High Command Culture as  MP’s  cannot  vote  on any  issue  independently.  
  3. Reduced democratic accountability : MPs are elected by people to represent constituency . But due to Anti Defection Law, MP cant go against party line even it is against the interest of people he / she is representing .
  4. Against the basic freedom of association and opinion guaranteed by the Fundamental Rights . Freedom of association and opinion did include the freedom of changing associations and opinions.
  5. Coalition and pre-poll alliances are not covered under Tenth Schedule
  6. It is against Articles 105 and 194 which guarantees the freedom of speech and expression in the Houses of Legislatures at the Center and in the States.

Changes needed in Anti-Defection Law

  1. Disqualification  provision  should  be applicable when Legislators  votes  contrary to  matters  which  are core  to  the  party’s  manifesto
  2. Anti-Defection cases shouldn’t be handed by Chairperson /Speaker of RS/LS . Dinesh Goswami Committee Recommendation :The issue of disqualification should be decided by the President/ Governor on the advice of the Election Commission.
  3. Time in which such cases should be disposed off should be clearly defined because Speakers don’t take up matter for Months and even Years related to Defection. 
  4. Law Commission Recommendation : Pre-poll electoral fronts should be treated as political parties under anti-defection law.

Jan 2020 : Supreme Court asked Parliament to amend the Constitution to strip Legislative Assembly Speakers of their exclusive power to decide on the matter of disqualification under the anti-defection law

Alternate Dispute Resolution and Lok Adalats

Alternate Dispute Resolution and Lok Adalats

Alternate Dispute Resolution Mechanism

Alternative Dispute Resolution(ADR) includes dispute resolution processes and techniques  short of litigation like Lok Adalats.

Various Provisions of Alternative Dispute Resolution

  • Historical Approach: Panchayats in India are the earliest known Alternative Dispute Resolution mechanism. 
  • Constitutional provision: The mechanism finds its basis in the
    • Article 14 (Equality before Law)
    • Directive Principles of State Policy (DPSP) for Equal Justice and Free legal Aid under Article 39A.
  • Legal Provisions
    • Gram Nyayalayas Act,2009
    • Legal Services Authorities Act (1987) (established Lok Adalat System)
  • Committees
    • Justice Malimath Committee (1989- 90) suggested the need for establishing Alternative Dispute Resolution mechanism 
    • Justice BN Srikrishna Committee

Need of Alternate Dispute Resolution Mechanisms?

  • In country like India, where there is huge backlog (3.2 crore) , Alternative Dispute Resolution can play a huge role in making justice available to all
  • Right to timely justice is an implicit part of the fundamental Right to Life and liberty. 
  • Alternative Dispute Resolution can also be implicitly related to the Directive Principles of State Policy  for Equal Justice and Free legal Aid under Article 39A.
  • Judicial proceedings in India not only take time but are also expensive . Alternative Dispute Resolution is way to provide inexpensive justice to people.
  • Alternative Dispute Resolution  allows the parties to come up with more creative solutions that a court may not be legally allowed to impose.

Arbitration , Mediation and Conciliation

  • Three main types of Alternative Dispute Resolution are
    • Arbitration : Very close to court but instead of Court , there will be some third party to decide issue  . Process of arbitration can start only if there exists a valid arbitration agreement between the parties prior to the emergence of dispute. Both parties agree to abide by decision beforehand .
    • Mediation : Third party is catalyst helping them to  reach at some middle ground.
    • Conciliation : Same like Arbitration in which third party will give verdict but that is not binding .

Important Notes

  • Alternative Dispute Resolution processes conform only to civil disputes.
  • Mahatma Gandhi Tanta Mukti Abhiyaan : Scheme of Maharashtra to resolve small disputes in villages by way of Arbitration within Village . United Nations has recognised this Scheme for bringing harmony

Lok Adalats

Legal Services Authorities Act, 1987

Hindrances to Access to Justice

  1. Poverty of claimant => can’t hire Advocate and can’t afford to attend court proceedings by skipping his daily wages .
  2. Delay in disposal of justice as it take decades for case to reach its logical conclusion.

Legal Services Act was enacted to take care of such problems 

To check above hindrance , two things done under Legal Services Authorities Act

  • Legal Services Authorities at the National, State and District levels to  provide free & competent legal services to the weaker sections of  society
  • Lok Adalats : For faster disposal of Justice (explained below)

Lok Adalat = People’s Court

Overview

  • Organiser = The National Legal Service Authority (NALSA) .
  •  Idea of Lok Adalat was advocated by Justice P.N. Bhagwati, a former Chief Justice of India.
  • It is Non-adversarial system, whereby mock courts (called Lok Adalats) are held by the National (NALSA), State , District Authority etc
  • Lok Adalat is
    • presided  by sitting or retired judicial officer as chairman, with two other members, usually lawyer & social worker.
    • There is no Court Fee.
    • procedural laws and the Evidence Act are not strictly followed 
    • Can deal with all Civil Cases – Matrimonial Disputes, Land Disputes,  Property Disputes etc.
  • First Lok Adalat was held  in 1982 in Gujarat.
  • LEGAL SERVICES AUTHORITY ACT 1987 ,  gave statutory status to Lok Adalat.
  • Main condition of the Lok Adalat is that both parties in dispute should agree for settlement. The decision of Lok Adalat is binding on the parties to the disputes and its order is capable of execution through legal process. No appeal lies against the order of the Lok Adalat.

How Lok Adalat is different

  • Less expensive & fast
  • Focus on compromise. When no compromise is reached, the matter goes back to the court &  if a compromise is reached, an award is made and is binding on the parties.
  • Disputing parties plead their case themselves . No advocate or pleader is allowed
  • No court fees levied
  • Award has same effect as of a Civil Court decree

Limitations of Lok Adalat

  • Lok Adalats are not suitable for complex cases  because repeated sittings at short intervals with  same judge are  not possible
  • Lack of Confidentiality – Lok Adalat proceedings are held in the open court 
  • Lok Adalats are criticized for being in hurry. It should be kept in mind that ‘Justice should not only be done, it must also be seen to be done’
  • Article 39 A calls for equal justice . But Lok Adalats don’t provide this.

Therefore Lok Adalats can at most supplement the legal redressal mechanism rather than being an alternative to the formal institution of Judiciary

Other things done for Alternate Dispute Redressal

  • Arbitration and Conciliation Act amended
  • Justice BN Srikrishna Committee to review Arbitration Mechanism in India which has called for
    • Making Arbitration Promotion Council of India (APCI) to improve quality of arbitration in India
    • Amend National Litigation Policy to declare that PSU Litigations will be solved via Arbitration instead of Courts
  • Special Commercial Courts have been made for speedy disposal of Commercial disputes above ₹1 cr

Parliamentary Privileges & Contempt of House

Parliamentary  Privileges & Contempt of House

This issue remains in news like

  1. 2019 : Breach of privilege motion was moved against Prime Minister and Defence Minister claiming they had misled Parliament on the Rafale fighter jet deal issue
  2. 2017 :  Karnataka assembly Speaker ordered the imprisonment of two journalists for a year based on recommendations of its privilege committees.
  3. 2003 : TN  Speaker directed arrest of 5 journalists for publishing articles that were critical of AIADMK government

Meaning of Parliamentary Privilege

  • ‘Privilege’ means a special or exceptional right  or  immunity enjoyed by a particular class of persons 
  • Idea behind parliamentary privileges is that members who represent the people 
    • Should not be obstructed in any way in the discharge of their parliamentary duties
    • They are able to express their views freely and fearlessly inside the Houses of Parliament   
    • Ensure sovereignty of Parliament .

Collective Privileges

  • Right to publish its Reports & Proceedings & also right to prohibit others from publishing same(44 Amendment – Press can publish true report without permission)
  • Can hold secret sitting 
  • Can make rules to regulate its own procedures
  • Right to receive immediate information about arrest, detention etc of its member
  • Courts are prohibited to inquire into proceedings of House 
  • It can punish members as well as outsiders for breach of privileges

Individual Privileges

  • Cannot be arrested during the session and 40 days before the beginning and 40 days after the end of the session . 
  • Freedom of Speech in the Parliament . No member is liable  for anything said  in Parliament 
  • Exempted from jury service . Can refuse to give evidence and appear as a witness when Parliament is in session .

Breach of Privileges vs Contempt of the house

  • Any act or omission which
    • obstructed a House of the Parliament / its Member / its Officer in the performance of their functions or
    • which has tendency to produce result against the dignity , authority and honour of the House
  • is treated as Contempt of the House
  • Breach of Privilege and Contempt of the House are used interchangeably but may have different implications
    • Contempt of the House has wider implications – It may be a Contempt of the House without specifically committing a Breach of Privilege
    • Example : Disobedience to a legitimate order of House is not a breach of the Privilege but can be a Contempt of the House

Important Cases

  • Keshav Singh Case , 1965 : Related to committal to prison of Keshav Singh by the UP Vidhan Sabha for committing a breach of privilege and contempt of the House .  It was held that Judiciary cant interfere in this.
  • Searchlight case, 1959 : Supreme Court held that the provisions of Article 194 indicate that Freedom of Speech referred in it is different from the Freedom of Speech and Expression under Article 19(1)(a) and cannot be cut down in any way by law contemplated by clause(2) of Article 19.

Need of Codified Act regarding Privileges

There is need for a law for codifying the privileges, define the limits of penal action for breach of privilege and procedures to be followed.

  • Article 105 (Article 194 for LA) : Privileges and immunities of each House of Parliament shall be such as may be defined by Parliament by law, and, until so defined shall be those which are enjoyed by House of Commons of Britain .
  • Hence, until now since separate Law is not there, Parliament enjoys same privileges as that of House of Commons .
  • Note : expression ‘until so defined’ does not mean an absolute power to not define privileges at all.

Issue :

  1. Indian Parliament is not Supreme while British Parliament is. Hence, giving same power to Parliament as that of House of Commons is wrong because
    • Fundamental Rights of Citizens can be curtailed
    • other limitations on Parliament cant be applied
  2. Historical reasons : Parliamentary privileges were wrested by Parliament from  King in England. In India, Privileges were granted by People so that their representatives can work without any fear

National Commission to Review the Working of Constitution (NCRWC) , 2nd Administrative Reforms Commission (ARC)& All India Whips  has also recommended that the privileges of legislatures should be defined by law.

Australia passed Parliamentary Privileges Act in 1987, clearly defining privileges, the conditions of their breach and consequent penalties.