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1.   Demand For Abolishing The Concurrent List

Seventh Schedule (Article 246)

  • The Constitution provides a scheme for demarcation of powers through three ‘lists’ in the seventh schedule.

  • The union list details the subjects on which Parliament may make laws e.g. defence, foreign affairs, railways, banking, among others.

  • The state list details those under the purview of state legislatures e.g. Public order, police, public health and sanitation; hospitals and dispensaries, betting and gambling etc.

  • The concurrent list has subjects in which both Parliament and state legislatures have jurisdiction e.g. Education including technical education, medical education and universities, population control and family planning, criminal law, prevention of cruelty to animals, protection of wildlife and animals, forests etc.

  • The Constitution also provides federal supremacy to Parliament on concurrent list items i.e. in case of a conflict; a central law will override a state law.

Why Concurrent list?

  • The aim of the concurrent list was to ensure uniformity across the country where independently both centre and state can legislate. Thus, a model law with enough flexibility for states was originally conceived in the constitution.

  • Also, few concurrent list subjects required huge finances needing both centre and state to contribute.

1.1. Historical Underpinnings

  • Time and again centre-state relations come under scanner due to rising demands from various corners of the country for more power devolution in favor of states.

  • The Indian governance system though federal in nature has strong central tendencies which born out of a mix causes i.e. the inertia to stay within the guidelines set by the Government of India act of 1935, fear of cessation etc.

1.2. Centralization of power Vis a Vis Concurrent list

  • Since 1950, the Seventh Schedule of the Constitution has seen a number of amendments. The Union List and Concurrent List have grown while subjects under the State List have gradually reduced.

  • The 42nd Amendment Act was implemented in 1976, restructured the Seventh Schedule ensuring that State List subjects like education, forest,

  • Sarkaria Commission Recommendation on Concurrent List

  • The residuary powers of taxation should continue to remain with the Parliament, while the other residuary powers should be placed in the Concurrent List.

  • The Centre should consult the states before making a law on a subject of the Concurrent List.

  • Ordinarily, the Union should occupy only that much field of a concurrent subject on which uniformity of policy and action is essential in the larger interest of the nation, leaving the rest and details for state action. protection of wild animals and birds, administration of justice, and weights and measurements were transferred to the Concurrent List.

  • The Tamil Nadu government constituted the PV Rajamannar Committee to look into Centre-State relations. It spurred other states to voice their opposition to this new power relation born due to 42nd amendment act and Centre’s encroachment on subjects that were historically under the state list.

  • The Sarkaria Commission was set up to look into Centre-State relations after opposition shown by states. However, the recommendations of the Sarkaria Commission were not implemented by successive central governments.

1.3. Issues with Concurrent list

  • Limited capacity of states: Some laws enacted by Parliament in the concurrent list might require state governments to allocate funds for their implementation. But due to federal supremacy while the states are mandated to comply with these laws they might not have enough financial resources to do so.

  • Balance between flexibility and uniformity: Some laws leave little flexibility for states to sync the laws according to their needs for achieving uniformity. A higher degree of detail in law ensures uniformity across the country and provides the same level of protection and rights however, it reduces the flexibility for states to tailor the law for their different local conditions.

  • Infringement in the domain of states: Some Bills may directly infringe upon the rights of states i.e. relates to central laws on subjects that are in the domain of state legislatures. E.g. anti-terrorist laws, Lokpal bill, issues with GST and Aadhar etc. where states’ power are taken away in a cloaked manner.

  • This asymmetry News Hightlight the need for a detailed public debate on federalism and treatment of items in the concurrent list.

What can be done?

  • Strengthening of Inter-State Council: Over the year committees starting from Rajamannar, Sarkaria and Punchi have recommended strengthening of Interstate Council where the concurrent list subjects can be debated and discussed, balancing Centre state powers. There is far less institutional space to settle inter-state frictions therefore a constitutional institution like ISC can be a way forward.

  • Autonomy to states: Centre should form model laws with enough space for states to maneuver. Centre should give enough budgetary support to states so as to avoid budgetary burden. There should be least interference in the state subjects.

2. Education As A Criteria For Local Elections

Background

  • Under Rajasthan Panchayati Raj (Second Amendment) Act, 2015 it was made mandatory for people contesting zila parishad, panchayat samiti and municipal elections to have passed Class 10.

  • Those contesting sarpanch elections to have passed Class 8 and those standing for sarpanch elections in panchayats in scheduled areas to have cleared Class 5.

  • Constitutional Validity of the law enacted by Haryana government was challenged in Supreme Court in Rajbala vs State of Haryana case, in which court upheld the validity of law barring the illiterate from contesting panchayat polls in the state.

  • SC held that the Right to Contest is neither fundamental rights, nor merely statutory rights, but are Constitutional Rights. Further, the Right to Contest can be regulated and curtailed through laws passed by the appropriate legislature.

  • The Supreme Court’s interpretation is based on the fact that uneducated or illiterate people getting elected to the local bodies can easily be misled by officials if they don’t know how to write and read.

2.1. Arguments against educational criteria

  • Against grassroots democracy: When there is no minimum education criteria to become MLA or MP, it is unfair to make such a criteria for panchayat elections.

  • Misplaced Focus: Experts have said that primary role of an elected public representative is to put forward the point of her/his electorate rather than being well-versed in technicalities of administration.

  • Discriminatory towards Women & Weaker Sections: Since the rate of literacy is low among the Dalits, Tribals and Women in particular due to societal and historical reasons, this law had disenfranchised a large number of Dalits and Women.

  • Exclusionary Move: As per 2011 Census, over 70% of the overall rural population over the age of 20 years got barred from contesting the sarpanch elections in Rajasthan. It defeats the very purpose of the Panchayati Raj institutions, to include citizens in multi-tier local governance from all sections of society.

  • Weakens the Panchayati Raj System: Due to lack of candidates who meet the education criteria, the number of sarpanch candidates who have been elected unopposed has more than doubled in the state as compared to the previous polls.

  • Abdication of Responsibility: The education criteria penalised the people for failure to meet certain social indicators, when in fact it is the state’s responsibility to provide the infrastructure and incentives for school and adult education.

2.2. Arguments in favor of educational criteria

  • Progressive Legislation: It will encourage people to focus on education. People who were till now illiterate will now be encouraged to take up minimum education even if at a later age.

  • Need of the Hour: This move may further the debate about having educational criteria for MPs and MLAs too. As in the present era, governance has become a complex issue and we must have educated people as our representatives.

  • Improvement in Social Indicators: Experts argue that having Educational Criteria will lead to betterment of other social indicators like lowering of child marriages, female feticide, and overall improvement of health and wellbeing. Having two child norm as a criterion has already lowered the fertility rates in states.

  • Role-Model Effect: States rationale is that it will lead to the role-model effect, and citizens in the constituencies will emulate their panchayat leaders, which will lead to social progress.

Conclusion

  • In his memorandum to the Simon Commission in 1928, the father of the Indian Constitution B.R. Ambedkar said, “Those who insist on literacy as a test and insist upon making it a condition precedent to enfranchisement, in my opinion, commit two mistakes. Their first mistake consists in their belief that an illiterate person is necessarily an unintelligent person…Their second mistake lies in supposing that literacy necessarily imports a higher level of intelligence or knowledge than what the illiterate possesses…”.

  • This decision should force a recasting of the debate on finding ways and means by which elected bodies are made more representative. This is because to mandate paternalistically what makes a person a ‘good’ candidate goes against the spirit of the attempt to deepen democracy by taking self-government to the grassroots.

3. DRAFT IT RULES

3.1. Key Suggestions of Draft IT [Intermediaries Guidelines (Amendment) Rules] 2018

  • Definition of intermediaries: Any social media platform with more than 50 lakh users or in the list notified by the government is defined as an “intermediary”. Social media platforms such as WhatsApp, Facebook, Instagram, Twitter etc. and search engines like Google fall under the definition of intermediary.

  • Privacy Policy: The intermediary must publish their privacy policy informing the user not to host, display, upload, modify, publish, transmit, update or share any information that is harmful, harassing, blasphemous, defamatory, obscene, threatens security of the state etc.

  • Informing non-compliance: A new rule 3(4) requires intermediary to inform its users at least once every month, in case of non-compliance with rules and regulations, user agreement and privacy policy.

  • Nodal person of contact: The intermediary is liable to provide information sought by any government agency within 72 hours of the query. They are expected to appoint a ‘nodal person of contact’ for 24X7 coordination with law enforcement agencies and officers to ensure compliance.

  • Removal of unlawful content: The intermediary after being notified by the appropriate authority should remove or disable access to unlawful content within 24 hours. The intermediary is also expected to preserve such information and associated records for at least 180 days for investigation purposes (as against 90 days now).

  • Traceability of originator: The modified Rule 3(5) will introduce a “traceability requirement” to enable tracing the originator of information on the platform. It will in effect require a platform to break end-to-end encryption and introduce systems for retaining information specific to each bit of user data sent/received, including WhatsApp messages.

3.2. Information Technology Act 2000

  • It is the primary law in India dealing with cybercrimes and electronic commerce, based on United Nations Model Law on Electronic Commerce 1996.

  • It formed the basis on e-governance in India as it gave recognition to electronic records and digital signatures.

  • It defines several cyber-crimes like tampering with computer source documents, hacking, cheating using computer resource, publishing obscene information in electronic form, cyber-terrorism etc. and prescribes penalties for them.

  • Section 79 of the IT Act elaborates on the exemption from liabilities of intermediaries in cases where they are merely acting as ‘conduits’ for information transmitted & published by end-users. Section 79(2)(c) mentions that intermediaries must observe due diligence while discharging their duties, and also observe guidelines as prescribed by the Central Government.

  • Tools to identify unlawful content: The modified Rule 3(9) requires online platforms to deploy automated tools to identify and disable access to unlawful content. It requires online platforms to report cyber security incidents with the Indian Computer Emergency Response Team.

3.3. Need for such regulations

  • Social media has brought new challenges for the law enforcement agencies, as it is being used for recruitment of terrorists, circulation of obscene content, spread of disharmony, incitement of violence, public order, fake news etc. An active cooperation & coordination between government and technology companies is needed for effective enforcement of the law.

  • A number of lynching incidents were reported in 2018 mostly alleged to be because of fake news/rumors being circulated through WhatsApp and other Social Media sites. The government needed to strengthen the legal framework and make the social media platforms accountable under law.

  • Supreme Court also recognized the need for online platforms following due diligence and enforcing ‘reasonable restrictions to free speech’ under Article 19(2) of the Constitution so that their platforms are not used to commit and provoke terrorism, extremism, violence and crime. It allowed government to frame Standard Operating Procedure (SOP) to deal with publication of such content.

3.4. Challenges posed

  • Definition of “unlawful content”: The definition of unlawful content is in terms of violation of sovereignty, friendly foreign affairs, public order, decency or morality under Article 19(2) of the Constitution. The scope of such as definition is wide and allows the government to curb any information that goes against it. The activists fear that this might lead to the “Chinese model of censorship”.

  • This also goes against the spirit of SC judgement in Shreya Singhal case whereby it struck down Sec 66A of IT Act 2000. It was asserted in the judgement that vague and subjective used in the law such as "annoyance", "inconvenience", "danger" etc. doesn't come under the purview of a criminal proceeding. A penal law can be declared void on the ground of vagueness, if it fails to define the criminal offense with definiteness.

  • Government Interference: The draft amendments allow breaking of encryption on messaging platforms such as WhatsApp, but lack any judicial safeguards against governmental abuse or interference. This infringes on the constitutional right to informational privacy and goes against the spirit of Puttaswamy judgement (2017).

  • Pro-active censorship: Allowing intermediaries to block any “unlawful” content on the Internet or using automated tools for the same, without any oversight, makes them arbiters without any right & violates the right to free speech. The Rules don’t provide the procedure or the object for such an exercise. They differ from the requirements governing content of other media like newspapers and television. Moreover, no provision for content creator to appeal against the takedowns goes against the principle of natural justice.

  • Longer data retention: The phrase, “government agencies” is not defined and the specific conditions for data retention, for a longer period, are also not defined. Such retention will be without the information of the user and even despite the user deleting the data on the servers of the intermediary.

  • Induce self-censorship: Draft Rule 3(4), which inserts a monthly requirement to inform users about the legal requirements, may induce self-censorship. Such a measure by law will require product side changes for smaller startups and entrepreneurs, thereby increasing costs.

  • There is a need to keep the privacy-security balance intact and limit the scope for executive overreach. But, such changes in digital information architecture must be brought after a consultative process with all stakeholders on board.

3.5. Finding of Audit

  • It found that, out of the 838 public authorities audited, over 85% did not disclose information related to: Budget and programming, Publicity and public interface and e-governance.

  • It observed that most public authorities had taken transparency-related measures, however, vital information is not fully displayed on official websites.

3.6. Major Reason behind Non-Compliance to Section 4 of RTI.

Section 4 of the RTI Act

  • It states that, every government department has to voluntarily disclose information through annual reports and websites.

  • It mandates that public authorities shall maintain all its records duly catalogued and indexed in a manner and form which facilitate the RTI Act.

3.7. Advantages of Suo-moto Disclosure:

  • Limiting Corruption: Publishing information about the actions of the government keeps public officials under the constant watch of the public, makes governments to be more accountable and less corrupt.

  • Increasing Participation: It empowers citizen with information which increase their voice in decision making process and policies, which are more likely to benefit them and less likely to be hijacked by special interest groups.

  • Equality in Access: Proactive disclosure makes the information available to the public rather than particular or few individual(s).

  • Security: Publishing information also protects the security of individuals within society. Requesting information for some individuals can sometimes be dangerous, particularly if it threatens powerful interest groups.

  • Improving Information Management: Proactive disclosure is also a more efficient means of disclosing information than processing individual information requests both in terms of the number of people it reaches and the public administration burden.

  • Lack of Awareness among PIO’s: According to an annual report of State Information Commission (SIC), 80% of Public Information Officers (PIO) and Appellate Authorities (AAs) do not know the basics of the RTI Act.

  • Demand Based Supply: There is focus on furnishing information on demand rather than effectively ensuring voluntary disclosures by public authorities.

  • Poor quality of information provided: Information proactively disclosed is not updated regularly leading to obsolescence of information provided, lack of important items of information on websites and relevant facts, which reflect lack of transparency in processes and inadequate training provided to the concerned PIO.

  • Obsolete record management Guidelines: The current record management guidelines at Centre and in most states are inadequate to meet the requirements specified under the RTI Act as there is lack of any electronic document management system in many of the Departments.

  • Neglect of record keeping: Leading to a tendency to provide bulk unprocessed information rather than a relevant and intelligible summarization.

  • Lack of Accountability: Currently there exist inadequate measures and processes for an Information Commission to view the adherence levels of this important provision of the Act, also there is no provision to fix responsibility on any officer at the level of public authority in case of non-compliance.

  • Non-availability of basic Infrastructure: Lack of basic infrastructure such as photocopier machines at each Public Authority and basic level of automation such as necessary applications and connectivity hampers its implementation.

Way Forward

  • Awareness drive: Government should make awareness programmes targeting the public as well as governmental bodies, for educating them and promoting about suo-moto disclosure under RTI Act.

  • Training of public authorities: Public officials should be trained on how to comply with proactive disclosure rules and how to make most effective use of both ICTs and traditional dissemination channels.

  • Establishing Public Records Office (PRO) for website monitoring and auditing: PRO would have responsibility to oversee proper record keeping in all public offices including preparation and up-dating of manuals, modernization and digitization, monitoring, inspections and other relevant functions. The Public Records Office should function under the overall guidance and supervision of CIC or SIC.

  • Improving Infrastructure: The ARC report had mentioned that GoI may allocate one per cent (1%) of the funds of the ‘Flagship Programmes’ for a period of five years for improving the infrastructure requirements.

  • Strict Punishment: Government officials hide truth/facts of information for camouflaging their acts of corruption/carelessness. This act should come under criminal offence.

  • Improving Record Management: Record keeping procedures need to be developed, reviewed and revised; catalouging, indexing and orderly storage should be mandatory; all documents need to be converted into rational, intelligible, retrievable information modules.

4. Witness Protection Scheme

4.1. More on News

  • Supreme Court under Article 141/142 of the Constitution of India has provided legal sanctity to the scheme until Parliament/state legislature enacts a law on the matter.

  • Although National Investigation Agency (NIA) act provides for witness protection, the scheme has extended it to the witnesses in all other cases as per the threat perception.

4.2. Related Information

  • Art. 141 - law declared by the Supreme Court shall be binding on all courts within the territory of India.

  • Art. 142- Under this, SC can grant appropriate relief for doing complete justice (where there is some manifest illegality, want of jurisdiction or where some pulpable injustice is shown to have resulted). Curative petition owes its origin to this article.

  • Judgments/Committees in the matter o Zahira sheikh vs. State of Gujarat SC observed that witness protection is necessary for free and fair trial.

  • 14th report of Law commission and subsequently in and reports indicated about the need to protect witnesses.

  • Concerns in the matter were also raised by the 4th Report of the National Police Commission (1980).

4.3. Need of Witness Protection Scheme

  • Rule of Law: it is imperative to ensure that investigation, prosecution and trial of criminal offences is not prejudiced because of threats or intimidation to witnesses. It will help in strengthening the Criminal Justice System in the Country and improve national security scenario.

  • Rights of Witness: While offenders have range of constitutional and legal rights, witnesses have limited rights and protection in current setup. This imbalance of rights many times compels the witnesses to turn hostile.

  • Threats to Witness: In many high-profile cases/scams like NRHM scam in UP, Fodder scam in Bihar key witnesses were killed adversely affecting the investigation in these cases.

  • International Practice: Countries like US, UK, Canada, and New Zealand have separate programme/acts for the protection of witnesses. In many countries, local police may implement informal protection as the need arises in specific cases.

4.4. Challenges

  • Lack of resources: Indian police force has acute shortage of manpower (136 personnel per lakh population) and funds even to handle day to day policing. The witness protection duties will further increase the pressure.

  • Right of accused: Law Commission mentioned that concealing the identity of witness for his/her protection can compromise the rights of the accused to demand a fair trial in case he/she wants to establish authenticity of witness.

4.5. Witness Protection Scheme

Procedure:

  • Secretary, District Legal Services Authority (DLSA) can pass witness protection order for the witness protection under this Scheme for protection of identity/change of identity/relocation of a witness, categorization of threat etc.

  • The Threat Analysis Report shall be prepared by the ACP / DSP after investigation on direction from DLSA. The police officer will categorize the threat perception and suggest corrective measure.

  • The responsibility of implementation lies on witness protection cell constituted under the scheme.

  • Physical safety: o Ensuring that witness and accused do not come face to face during investigation or trial.

  • Concealment of identity of the witness by referring to him/her with the changed name or alphabet.

  • Escort to and from the court and provision of Government vehicle date of hearing.

  • Close protection, regular patrolling around the witness’s house.

  • Use of Technology: o Holding of in-camera trials, videoconferencing, teleconferencing etc.

  • Judicial Support: o Ensuring expeditious deposition of cases during trial on day to day basis without adjournments.

  • Financial provisions: o Witness Protection Fund for the purpose of re-location, sustenance or starting new vocation/profession.

  • The scheme aimed to enable a witness to depose fearlessly and truthfully. Under it, witness protection may be as simple as providing a police escort to the witness up to the courtroom or, in more complex cases involving an organised criminal group, taking extraordinary measures such as offering temporary residence in a safe house, giving a new identity, and relocation at an undisclosed place.

  • Privacy of Witness: Providing physical security to witnesses may not be appreciated by witness as it curtails the privacy and movement.

  • Time frame of protection: It may be difficult to assess the time frame for protection. E.g. protection of witnesses may be required not only before, but also during and after trail and that too for years considering the delays in Criminal Justice System.

  • Issue in implementation: Indian Penal Code, Juvenile Justice Act and Whistle blowers Protection Act etc. already have provisions for witness protection but lack of availability of appropriate structure limits the implementation.

Way forward

  • Effective witness protection legislation should be enacted clearly defining the role of police, government and judiciary. This will create confidence among witnesses.

Witness Protection Bill 2015

  • The proposed Bill seeks to ensure the protection of witness by- • Formulation of witness protection programme and constituting National Witness Protection Council and State Witness Protection Councils to ensure its implementation

  • Constitution of a "witness protection cell" to prepare a report for the trial court to examine and grant protection to the witness referred as "protectee" after being admitted in the programme;

  • Providing safeguards to ensure protection of Identity of witness;

  • Providing transfer of cases out of original Jurisdiction to ensure that the witness can depose freely;

  • Providing stringent punishment to the persons contravening the provisions and against false testimonies;

  • In this regard, Witness Protection Bill 2015 can be enacted with suitable amendments.

  • Witness protection cell established under scheme should arrange for the provisions of false identities, relocation, employment and follow up.

  • In some cases medical facilities, social services, state compensation, counseling, treatment and other support should be provided to the witness.

  • The witness should be treated with fairness, respect and dignity and protection from intimidation, harassment or abuse must be prevented throughout the criminal justice process.

  • Overhauling the Criminal Justice System with faster and scientific investigation, trails and convictions will reduce the need of witness protection.

5. India Urban Data Exchange (IUDX)

5.1. Data Exchange - Concept Background

  • Cities around the world have learned that they possess a new valuable asset, namely the data generated by their various departments and agencies with each data set having its own security and privacy consideration, as well as commercial, monetary or subscription aspects.

  • Cities such as Copenhagen, and Manchester have taken ownership of their data assets by creating data exchanges, which are software platforms that allow controlled sharing of data by providing common ways of accessing and representing the data

  • An important idea behind a data exchange is that data silos are actually not a bad thing, as each silo often represents a domain-optimized service that performs that function very well. Instead of breaking silos or moving data into a central repository, this approach chooses to interconnect the disparate and distributed entities through a common data exchange.

  • In addition, there is an opportunity for third-party providers of data, or third-party providers of data analytics or data annotation, to participate in what becomes a data marketplace.

 

ICCC

  • It’s a center where the entire city's information is collected, viewed and analysed through a City operations center application.

  • Significance: Government can take pro-active measures and informed decisions on the basis of the data on a single dashboard. This system would control street lights, parking lights, parking, traffic (including violations and congestions), waste management, water supply etc. through sensors.

  • As of June 2018, ICCC were operational under 10 smart cities in India with the latest being Naya Raipur.

5.2. India Urban Data Exchange

  • It’s a platform intended to facilitate easy and efficient exchange of data among various stakeholders of Smart Cities by interconnecting disparate urban data platforms, and enabling co-creation and innovation.

  • Smart City Mission aims to develop an innovative city that uses information and communication technologies (ICTs) and will spend over Rs 16,000 crore (8% of the total Rs 2.04 lakh crore investment) on IT.

  • After digitising municipal operations, such as waste flow, water supply, traffic patterns, and surveillance systems, the aim is to feed all data into an Integrated Command and Control Center (ICCC).

  • In this manner, it reflects the two-way partnership of information sharing between funding agencies and service providers, enabling both to find smarter and more efficient ways of improving service delivery and the overall outcomes achieved for individuals, families and their communities.

  • Monitoring of IUDX: Open Smart Cities of India (OSCI) will be setup as a non-profit, start up company with central and state government officials, Smart City officials, researchers, and industry players to set up and scale IUDX.

5.3. Advantage of IUDX

  • Good Governance: It will serve as a foundation for City Administration to build City Operations Center through which the city Administrators can monitor & operate the various city services Intelligently & efficiently.

  • Informed policy making: It will empower Citizen, Industry, Academic and Research institution with direct access to a wide variety of data and make informed policy and decision making.

  • Data Monetization: IUDX would essentially create a unified single-point data market place for various smart cities ecosystem stakeholders. This will help cities with new revenue sources and create a fertile environment for innovation.

5.4. Concern and Way Forward

  • Data Protection and Usage: Regulations and laws should detail how consent for gathering data should occur, how data can be used and shared.

  • Privacy and Personal Right Protections: Smart cities will face challenges of privacy as they strive to balance innovation with personal privacy. Therefore, cities will need to establish laws and regulations that determine how the privacy of its citizens will be protected.

  • Reliability and Liability: Laws will need to determine exactly who is liable for damages incurred by malfunctioning IoT technology. Standards must be developed that outline how reliable an IoT device must be in order for it to be embedded in a smart city.

December Indian Polity and Constitution

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