top of page

1.   Breach Of Privilege

1.1. Types of Privileges

Collective

  • Exclude strangers from proceedings. Hold a secret sitting of the legislature

  • Freedom of press to publish true reports of Parliamentary proceedings. But, this does not in case of secret sittings

  • Only Parliament can make rules to regulate its own proceedings

  • There is a bar on court from making inquiry into proceedings of the house (speeches, votes etc.)

Individual

  • No arrest during session and 40 days before and 40 days after the session. Protection available only in civil cases and not in criminal cases

  • Not liable in court for any speech in parliament

  • Exempted from jury service when the house is in session.

  • deliberations

1.2. Concept of privileges and types of privileges

  • The concept of privileges emerged from the British House of Commons when a nascent British Parliament started to protect its sovereignty from excesses of the monarch.

  • The Constitution (under Art. 105 for Parliament, its members & committees /Art. 194 for State Legislature, its members & committees) confers certain privileges on legislative institutions and their members to: o Protect freedom of speech and expression in the House and insulates them against litigation over matters that occur in these houses

  • Protect against any libel through speeches, printing or publishing

  • Ensure their functioning without undue influence,

Committee on Privileges

  • Standing committee constituted in each house of the Parliament/state legislature.

  • Consists of 15 members in Lok Sabha (LS) and 10 members in Rajya Sabha (RS) to be nominated by the Speaker in LS and Chairman in RS.

  • Its function is to investigate the cases of breach of privilege and recommend appropriate action to the Speaker/Chairperson.

pressure or coercion

  • Ensure sovereignty of Parliament

  • Currently, there is no law that codifies all the privileges of the legislators in India. Privileges are based on five sources:

  • i) Constitutional provisions

  • ii) Various laws of parliament

  • (iii) Rules of both the houses

  • iv) Parliamentary conventions

  • v) Judicial interpretations

  • Whenever any of these rights and immunities is disregarded, the offence is called a breach of privilege and is punishable under law of Parliament. However, there are no objective guidelines on what constitutes breach of privilege and what punishment it entails.

  • Following procedure is followed in privilege cases:

  • A notice is moved in the form of a motion by any member of either house against those being held guilty of breach of privilege.

  • The Speaker/ Rajya Sabha chairperson is the first level of scrutiny of a privilege motion. They can take a decision themselves or refer it to the privileges committee of parliament. Privilege committee in Parliament as well as in state legislatures decides upon such cases.

  • An inquiry is conducted by the committee and based on findings a recommendation is made to the legislature.

  • A debate can be initiated on the report in the House and based on the discussion, the Speaker can order the punishment as defined by the privileges committee.

1.3. Challenges with respect to privileges

  • Against 'Constitutionalism' or doctrine of limited powers. Absence of codified privileges gives unbridled power to house to decide when and how breach of privilege occurs.

  • Judicial scrutiny is barred in cases of privileges, which is against the doctrine of judicial review.

  • Discredits separation of powers, as speaker acts as complainant, advocate and the judge. Used as a substitute for legal proceedings.

Instances of breach of privileges

  • In 1978, Indira Gandhi faced a motion for breach of privilege on the basis of observations of excesses during emergency (Justice Shah Committee report). Subsequently, she was expelled from the house.

  • Expulsion of Subramanyam Swami from Rajya Sabha in 1976 on charges of bringing disrepute to the Parliament.

  • Tamil Nadu assembly punished the journalists of The Hindu for criticizing the CM in 2003.

  • Karnataka assembly passed a resolution imposing imprisonment and fines on scribes in 2017.

  • Penal action in cases of breach of privileges unwarranted, unless there is an attempt to obstruct the functioning of the house or its members.

  • Must only be invoked by legislature when there is "real obstruction to its functioning". Breach of privilege invoked for genuine criticism of members of the house or due to political vendetta, reduces accountability of elected representatives. Violation of FR of expression and personal liberty.

  • Invoked on grounds of defamation by individual members, while judicial remedy available under defamation and libel law.

Way Forward

  • Constituent Assembly envisaged the system of uncodified privileges based on British House of Commons, as only temporary. Indian & British Parliament have different political and legal status (popular sovereignty vs parliamentary sovereignty). Therefore, there is a need for proper codification of privileges. E.g. Australia passed Parliamentary Privileges Act in 1987, clearly defining privileges, the conditions of their breach and consequent penalties.

  • The decisions of the speaker may be influenced by his/her political affiliations. Therefore, the trial must be conducted by a competent, independent and impartial tribunal.

  • Higher judiciary must set limits on punitive powers.

  • The 'sovereign people of India' have restricted right to free speech while 'their representatives' have absolute freedom of speech in the houses. Courts must revisit earlier judgments to find right balance between Fundamental Rights of the citizens and privileges of legislature.

2. NONE OF THE ABOVE (NOTA)

About NOTA

  • It was introduced in India following the 2013 Supreme Court directive. It is an option the voting machine, designed to allow voters to disapprove all the candidates while delivering their vote.

  • However, NOTA in India does not provide for a ‘right to reject’. The candidate with the maximum votes wins the election irrespective of the number of NOTA votes polled.

Rule 64

  • It refers to “declaration of result of election and return of election”. But the rule does not take into account a situation where Nota votes may be higher than those polled by any candidate.

  • The NOTA votes have not been accounted while calculating votes polled by candidates for making them eligible (1/6th of valid votes) for getting back their security deposits.

  • An Association of Democratic Reforms analysis says that since 2013 till March 2018, NOTA has secured a total of 1.33 crores votes from all assemblies and Lok Sabha polls combined.

  • Election Commission currently has no plenary power to call a fresh election even if NOTA secures highest votes.

  • To give greater sanctity to NOTA and even order a fresh election, Rule 64 of Conduct of Election Rules will have to be amended and can be done by the law ministry. It will not require Parliament sanction.

2.1. Significance of re-elections

  • Freedom of expression: NOTA emanates from our fundamental right of ‘Right to liberty’ and ‘Freedom of Expression’ as it gives a way for the voter to register her consent or discontent for candidates chosen by the political parties.

  • Conducive for democracy: Participation of people is one of the crucial pillars of democracy thus in exercising the NOTA the voter is participating in the electoral process while not abstaining from voting altogether.

  • Betterment of democracy: There is an opaqueness in the selection process of the candidates chosen for representing a political party, with nepotism, favoritism and money power being the driving force. It gives voters an opportunity to express their dissent and may also force parties to field better candidates known for their integrity.

2.2. Challenges of conducting fresh election

  • Financial Pressure: Fresh elections lead to massive expenditures by Government as it has to conduct re-election which put extra pressure on the public exchequer.

  • Disrupting democracy: It leads to frequent elections which results in disruption of normal public life and impact the functioning of essential services.

  • Administrative pressure: Election Commission of India has to take help of a significant number of polling officials as well as armed forces to ensure smooth, peaceful and impartial polls.

  • Governance issues: Conducting fresh election impacts development programs and governance due to imposition of Model Code of Conduct by the Election Commission.

3. Governor’s Role In Dissolution Of State Assemblies

3.1. More About News

  • The reasons for the dissolution were: the “extensive horse trading” and the possibility that a government formed by parties with “opposing political ideologies” would not be stable.

  • The move is being seen as harmful for democracy as J&K’s relationship with the Centre is rooted in constitutional safeguards as well as in the participation of its major parties in electoral politics and parliamentary democracy.

3.2. Constitutional provisions

  • Article 172 says that every Legislative Assembly of every State, unless sooner dissolved, shall continue for five years.

  • Article 174 (2) (b) of the Indian Constitution merely states that the Governor may, from time to time, dissolve the Legislative Assembly.

  • Article 356 (“President’s rule”): In case of failure of constitutional machinery in State the President, on receipt of report from the Governor of the State or otherwise,

  • may assume to himself the functions of the Government of the State

  • declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament

  • With Respect to J&K Constitution: The powers under Section 92 (failure of constitutional machinery) and Section 52 (provides for dissolution of assembly) were invoked for this move.

3.3. Issues related to Dissolution Powers

  • Lack of Objective Criteria for untimely dissolution: While Article 174 gives powers to the governor to dissolve the assembly, but the Constitution is silent on as to when and under what circumstances can the House can be dissolved.

  • Political reasons being cited for Dissolution: Potential for political instability in the future being cited as a reason in J&K to prevent emerging alliances is undemocratic in nature.

  • Moreover, describing an alliance as opportunistic is fine as far as it is political opinion but it cannot be the basis for constitutional action.

3.4. Missing Political Neutrality in Governor’s Office:

  • The post has been reduced to becoming a retirement package for politicians for being politically faithful to the government of the day. Consequently, the office has been used by various governments at the centre as a political tool to destabilise elected state governments.

  • For e.g. Bihar State Assembly was dissolved by the governor in 2005 on apprehensions of “horse trading. Later the Supreme Court called the decision to be illegal and mala fide.

3.5. Suggestions

Sarkaria Commission

  • The state assembly should not be dissolved unless the proclamation is approved by the parliament.

  • Sparing use of article 356 of the constitution should be made.

  • All possibilities of formation of an alternative government must be explored before imposing presidential rule in the state.

M MPunchhi Commission

  • The governor should follow “constitutional conventions” in a case of a hung Assembly.

  • It suggested a provision of ‘Localized Emergency’ by which the centre government can tackle issue at town/district level without dissolving the state legislative assembly

Supreme Court Judgements:

  • Bommai case of 1994:

  • The court accorded primacy to a floor test as a check of majority.

  • The court also said that the power under Article 356 is extraordinary and must be used wisely and not for political gain.

  • Rameshwar Prasad case (2006)

  • Bihar Governor’s recommendation for dissolving the Assembly the previous year was held to be illegal and mala fide

  • A Governor cannot shut out post-poll alliances altogether as one of the ways in which a popular government may be formed.

  • The court had also said unsubstantiated claims of horse-trading or corruption in efforts at government formation cannot be cited as reasons to dissolve the Assembly.

4. Central Bureau Of Investigation (CBI)

4.1. More about news

General Consent

  • Given that the CBI has jurisdiction only over central government departments and employees, it can investigate a case involving state government employees or a violent crime in a given state only after that state government gives its consent. Thus, it gets a general consent instead of a case-specific consent to avoid taking permission each time.

  • The general consent is normally given for periods ranging from six months to a year.

  • The CBI which is under the Delhi Special Police Establishment (DSPE) Act, 1946, will now have to approach the State government for permission for investigation on a case by case basis.

  • It is not the first time. Over the years, several states had also withdrawn consent for some time.

What can the CBI do now?

  • The CBI would still have the power to investigate old cases registered when general consent existed. (as decided by the Supreme Court in KaziLhendupDorji of 1994)

  • Withdrawal of consent will only bar the CBI from registering a case within the jurisdiction of Andhra and Bengal. Thus, for new cases the CBI could still file cases in Delhi and continue to probe people inside the two states.

  • Moreover, cases registered anywhere else in the country, but involving people stationed in Andhra Pradesh and West Bengal would allow CBI’s jurisdiction to extend to these states.

  • Also, if the Supreme Court or a High Court directs that a particular investigation be handed over to the CBI, there is no need for any consent under the DSPE Act.

 

Central Bureau of Investigation

  • It is the main investigation agency of the central government for cases relating to corruption and major criminal probes.

  •  It is not a statutory body.

  • The Lokpal Act 2013 prescribed that the CBI director shall be appointed on the recommendation of a committee comprising the Prime Minister, Leader of the Opposition in the Lok Sabha and Chief Justice of India or a judge of the Supreme Court nominated by him.

  • The Central Government can authorize CBI to investigate such crime in a State only with the consent of the concerned State Government. The Supreme Court and High Courts, however, can order CBI to investigate such a crime anywhere in the country without the consent of the State.

5. Enemy Property

5.1. More on the News

  • The approval has been accorded for sale of enemy shares under the Custody of Ministry of Home Affairs/ Custodian of Enemy Property of India (CEPI, is an Indian government department that is empowered to appropriate property in India owned by Pakistani nationals under Defence of India Act), as per Section 8A of Enemy Property Act, 1968.

  • Department of Investment and Public Asset Management (DIPAM) has been authorized under the provisions.

5.2. About Enemy property

  • According to Enemy Property Act, 1968, "Enemy property" refers to any property belonging to, held or managed on behalf of an enemy, an enemy subject or an enemy firm.

  • The Defence of India Acts defined an ‘enemy’ as a country that committed an act of aggression against India.

  • When nations go to war, they often seize the properties in their countries of the citizens and corporations of the enemy country. The idea behind seizing these properties is that an enemy country should not be allowed to take advantage of its assets in the other country during war.

  • To administer the enemy property seized during the wars, the government enacted the Enemy Property Act in 1968. It laid down the powers of the CEPI for management and preservation of the enemy properties.

  • A recent amendment to the Enemy Property (Amendment and Validation) Act, 2017, ensures the heirs of those who migrated to Pakistan and China during Partition and afterwards will have no claim over the properties left behind in India. of the Enemy Property Act, 1968 (promulgated in 1968 after India-Pakistan war of 1965), to sell the same.

  • Sale proceeds are to be deposited as disinvestment proceeds in the Government Account maintained by Ministry of Finance.

5.3. Impact of the decision

  • The decision will lead to monetization of enemy shares that had been lying dormant for decades since coming into force and the Enemy Property Act in 1968.

  • With the approval, now, of the procedure and mechanism for sale of enemy shares an enabling framework has been institutionalized for their sale.

  • It will lead to monetization of movable enemy property and the sale proceeds from this may be used for development and social welfare programmes.

6. Beyond Fake News’ Project

Background

  • Fake news can be propagated through any media- print, electronic and social.

  • There have been instances of mob unrest, death and injury due to fake news as most of the citizens view any news published by mainstream media as true without ascertaining its authenticity.

  • It is used to influence public opinions, to gain popularity or to malign the image, character of certain individuals or opponents or to defame them. For example- it has been found that on an average 2% tweets have relevant information on the disaster, the rest of the tweets contains sympathetic and mostly gibberish conversations.

6.1. Right to free speech and fake news

  • Fake news refers to news, stories, information, data and reports which is or are wholly or partly false. Fake news exploits the freedom allowed to media in a democracy to spread misinformation which in turn affects the right to free speech in the following ways: • Free publication or broadcast of news in India flows from the fundamental right to freedom of expression as enshrined under Article 19 of the Constitution. However, there is no specific law in India to deal with fake news.

  • Freedom of speech can only be curtailed as per the limited circumstances set out in Article 19(2) of the Constitution of India – and falsehood isn’t one of those ‘reasonable restrictions’.

  • In the case of tackling ‘fake news’, the problem of sharing of mass misinformation must be tackled. But while tackling the problem, the priority of any responsible Government must be to first ensure that freedom of speech is not unduly restrained.

  • Self-regulation by mainstream media to contain fake news has largely been ineffective. Any direct effort by the government to control fake news is prone to be seen as an assault on the freedom of media which functions as the fourth pillar of democracy.

  • The project ‘Beyond Fake News’ is a new campaign that is aimed at fighting back against disinformation and fake news with a major focus on global media literacy, including workshops and debates in countries like India.

6.2. Legal recourses available for people affected by fake news

  • Broadcasting Content Complaint Council (BCCC): A complaint relating to objectionable TV content or fake news can be filed to the BCCC if a broadcaster incites communal hatred, encourages violence against women or child abuse, airs contents having gory scenes of violence, promotes superstition or consumption of drugs and other contraband substances.

  • Indian Broadcast Foundation (IBF): It look into the complaints against contents aired by 24x7 channels.

  • News Broadcasters Association (NBA): It represents the private television news and current affairs broadcasters. It is self-regulatory in nature and probes complaints against news broadcasters in a fair manner.

  • Press Council of India: According to the Press Council Act, 1978, it can warn, admonish or censure the newspaper, the news agency, the editor or the journalist found guilty of spreading misinformation.

6.3. Related Information

  • To curb the menace of fake news IIT-Kharagpur has come up with a solution that uses artificial intelligence to extract critical information from viral social media content that is manually not possible.

  • Similar innovative ways can be further developed and utilized for applying on the mass level.

  • IPC Sections 153A and 295: It can be invoked against someone creating or spreading fake news if it can be termed as hate speech.

  • Defamation suit: It is another legal tool available in the case of fake news. If a person finds a fake news defamatory, s/he can file a civil or criminal case for defamation.

  • The Information Technology (IT) Act: It imposes an obligation on intermediaries such as search engine giant Google to remove any objectionable content pursuant to takedown notices by law enforcement agencies.

  • Contempt of Court laws: False stories about judicial proceedings would be covered by contempt of court laws and false stories about Parliament and other legislative bodies would violate privilege.

7. Internet Shutdowns

7.1. Reasons for Internet Shutdowns in India

  • Fake News circulation: It has emerged as a major problem for democratic societies and governments across the world are using internet shutdown as a tool to deal with it. For example: Internet shutdown was recently resorted for preventing child kidnapping rumors in Tamil Nadu.

  • For maintaining Internal security: internet shutdowns have also been carried to prevent spread of inflammatory messages, misguiding of youth into terror activities through false propaganda, and have been used maximum times in J&K to maintain peaceful atmosphere.

  • Other Issues: Shutdowns have also been utilized for a plethora of other activities such preventing protests against movies, prevent cheating in state recruitment examinations such as in Rajasthan, etc.

7.2. Arguments against Internet Shutdown

Legislative Backing in India

  • Section 144 of the Criminal Procedure Code, 1973: A vast majority of Internet shutdowns recorded in India in the recent years have been ordered under this. It is used to prevent obstruction, annoyance, danger to human life, disturbance of the public tranquility, etc.

  • Section 5(2) of the Indian Telegraph Act, 1885

  • It allows authorized officers to prevent the transmission of class of messages during a public emergency or in the interest of public safety.

  • The broad and future-proof definition of the term "Telegraph" brings virtually any communication system – including the Internet – within the Act’s purview

  • The Temporary Suspension of Telecom Services (Public Emergency and Public Safety) Rules, 2017.

  • Ensuring Freedom of Speech and Expression: The Supreme Court in a 2017 judgement has said that the right to access Internet comes under fundamental right of expression and cannot be curtailed at any cost. Various shutdowns compromise the right to free and fair speech

  • Archaic Laws: Section 144 and Section 5(2) contain almost no checks and balances to prevent their abuse by officials. Moreover, they are archaic laws that have been carried down from the British Raj and are clearly not designed to oversee state actions like Internet shutdowns.

  • No definite criteria: The criteria for enforcing shutdowns are entirely up to the subjective interpretation of the authority issuing orders as there is no objective standard to determine if a given situation qualifies as a public emergency or threatens public safety, etc.

  • Non-resolution of the issue: The frequent instances of shutdowns have failed to address the underlying causal issue such as fake news, hate speech, etc. as the vastness of the internet users (over 50 crores in India) makes tracing the origin of fake news almost impossible.

  • Increase in Preventive shutdown: In 2017, the number of preventive shutdowns were almost three times the number of reactive shutdowns, indicating that Internet shutdowns are increasingly being resorted to even before law and order breakdowns have actually taken place. Thus, users in affected areas are often unaware and have no time to mitigate the impact of shutdowns.

  • Against the spirit of Digital India: It is in contradiction to the Government of India’s flagship initiative Digital India.

Way Forward

  • Measures by Tech companies:

  • Social media giants such as Twitter, Facebook, etc. must “self-regulate” themselves by filtering out fake news, increasing transparency regarding how personal data is collected and used, etc.

  • Tech companies must work to spread digital literacy, culture of skepticism, scientific temper and prevent misinformation. For example: WhatsApp is working together with seven organizations in India to draft a digital literacy training program for its users.

  • Civil Society and Media: They should continue to raise awareness about government’s attempt at censorship and undue surveillance efforts.

  • Measures by Government: A Standard Operating Procedure must be created with adequate safeguard to minimize subjective and whimsical approach to enforcing shutdowns and we must move towards a regime where such a step is taken only if there a tangible threat.

8. YuvaSahakar-Cooperative Enterprise Support And Innovation Scheme

8.1. About YuvaSahakar

  • Purpose: To cater to the needs and aspirations of the youth, NCDC has come up with this youth-friendly scheme for attracting them to cooperative business ventures. It would encourage cooperatives to venture into new and innovative areas.

  • CSIF fund: The scheme will be linked to a ‘Cooperative Start-up and Innovation Fund (CSIF)’ created by the NCDC with an annual outlay of Rs 100 crore and it has special incentive for cooperatives of North Eastern region, Aspirational Districts and cooperatives with women/SC/ST/PwD members.

  • Funding: The funding for the project will be up to 80% of the project cost for the special categories as against 70% for others. The scheme envisages 2% less than the applicable rate of interest on term loan for the project cost up to Rs 3 crore including 2 years moratorium on payment of principal.

  • Eligibility: All types of cooperatives in operation for at least one year and having positive net-worth are eligible.

October Indian Polity and Constitution

bottom of page