The HINDU Notes – 10th January 2022 - VISION

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Monday, January 10, 2022

The HINDU Notes – 10th January 2022


📰 Unchanged: On EWS quota income norm

After much loss of time, SC allows EWS quota income norm to stay for this year

•It is a matter of considerable relief that the Supreme Court has allowed the commencement of counselling for post-graduate medical admissions under the all-India quota at a time when the long delay has caused a shortage of junior residents in the midst of an ongoing public health crisis. The Court’s decision to uphold the 27% quota for OBCs, with reasons to be adduced later, has also helped the cause of giving a push to the admission process, which was put on hold months ago. It is somewhat disappointing that despite several hearings and the deployment of an expert committee, the controversial criteria for the 10% Economically Weaker Sections (EWS) remain unchanged for admission for 2021-22. As early as October 25, the Union government offered to put on hold the admission process during the pendency of the challenge to the introduction of the OBC and EWS quotas by a July 29, 2021 notification. A month later, it informed the Court that it wanted to revisit the criteria for EWS. It was in response to the Court’s questions about the rationale of keeping the annual income criterion for the EWS quota at ₹8 lakh, the same income ceiling for those belonging to the OBC category to be eligible for reservation benefits. The time taken by the committee to reconsider the criteria and submit a report seems to have been in vain, as it has returned a recommendation that the existing norms be retained for the current year’s admissions.

•The Bench, taking into account the fact that the admission process cannot be further delayed, has chosen to allow the admission to proceed based on the norms spelt out in the July notification. However, the validity of the expert panel’s recommendations will be decided when the Court takes up the matter in March. It makes one wonder why the Government postponed the counselling and took more than a month to get a panel to revisit the criteria, if it was ultimately going to press for the current year’s admission to be allowed without any change. The Court, on its part, felt compelled to defer to the Government on this point, considering the urgency of the situation, as the alternative was staying the EWS quota for this year’s admission. Its original point — that there cannot be a common income limit for those coming from a background of social and educational backwardness and those who are members of privileged classes, but with inadequate economic means — still stands. The outcome is that this year’s batch may suffer from ‘over-inclusion’ if the norms are revised downwards from next year onwards. While the norms for EWS quota may get tweaked over time, the question whether there ought to be any reservation for the advanced classes solely on the ground that they have insufficient means is still before the Constitution Bench. An early decision will be most welcome.

📰 Control rather than privacy

The Joint Committee report on the Personal Data Protection Bill has raised more questions than it has solved

•In India, where the personal data of citizens are at the mercy of companies and government and where is no privacy law, the Puttaswamy judgment and the Justice B.N. Srikrishna committee report that led to the Personal Data Protection Bill of 2019 came as a ray of hope. But the Joint Committee report on the Bill has failed to provide a robust draft legislation ensuring the privacy of citizens. Instead, it has carved out an architecture for a surveillance state.

Infallibility of state

•Under the Constitution, fundamental rights are enforced against the state and its instrumentalities and not against private bodies. The Puttaswamy judgment held that the right to privacy is a fundamental right. However, the report has divided the digital world into two domains — government and private — and is based on the presumption that the question of right to privacy emerges only where operations and activities of private entities are concerned. Clause 12 of the Bill provides exemptions for the government and government agencies and Clause 35 exempts government agencies from the entire Act itself. Clause 12, which says personal data can be processed without consent for the performance of any function of the state, is an umbrella clause that does not specify which ministries or departments will be covered. Further, the Bill says, “harm includes any observation or surveillance that is not reasonably expected by the data principal”. This means if you install any software in your computer and the software violates the principle of privacy and data get leaked, the complaint of the data principal will not be legally tenable as the defence will be that ‘once you have installed the software, you should have reasonably expected this level of surveillance’. The government can use these provisions as a means of control and surveillance.

•If private entities can be given a transition time to comply with the Act, why should the same not be extended to government entities? Why should they be given blanket exemption instead? The Committee has failed to provide formidable firewalls to protect the privacy of individuals and has also carved out a mechanism for government control over personal data. The provisions are ultra vires of the judgment on privacy.

•For compliance with the provisions of the Act, a data protection authority (DPA) has to be appointed. The Bill elaborates on the functions and duties of the DPA. It is doubtful whether a single authority will be able to discharge so many functions in an efficient manner. The terms and conditions of appointment of the DPA also raise concerns. Unlike the Justice Srikrishna committee report which provided for a judicial overlook in the appointments of the DPA, the Bill entrusts the executive with the appointments. Although the report expanded the committee, the power to appoint the panelists vests with the Central government. While ensuring the protection of citizens’ fundamental right, it is necessary that the authority entrusted with the responsibility should work independently. Clause 86 says, “Authority should be bound by the directions of the Central Government under all cases and not just on questions of policy”. This makes the DPA duty-bound to follow the orders of the government. This weakens its independence and gives the government excessive control. Further, the appointment of the authority violates the principle of federalism. There is internal data flow and the States are key stakeholders in the process. Even if the proposed central authority issues directions to allow processing of data on the grounds of ‘public order’, it is important to note that ‘public order’ is an entry in the State List. If the pith and substance of the legislation are related to the State, then it has to be monitored by the State Data Protection Authority.

Economic cost of non-personal data

•One of the objectives of the Bill is to promote the digital economy. But by including non-personal data within the ambit of the Bill, the Joint Committee has put a huge compliance burden on the economy. This will hit the MSME sector and small businesses harder as technical processes involving data-sharing are very expensive. The government-constituted panel headed by S. Gopalkrishnan also opposed the idea of including non-personal data in the Bill. Mandatory data localisation, it is estimated, will squeeze the economy by 0.7-1.7%. This may also invite similar measures by other sovereign countries which will hamper smooth cross-border flow of data.

•The report has raised more questions than it has solved. In its present avatar, the Bill is more about surveillance and control than privacy. At the time of passage of the Bill, loopholes must be plugged so that India can have a robust data protection law.

📰 Some Raj Bhavans are on the war path

The Governor must be mindful of being a friend and a guide to his government, more so in Opposition-ruled States

•Recent media reports about the confrontation between the Governors and the State governments, in Maharashtra and Kerala, have turned the spotlight on the rather delicate relationship between the constitutional head of the State and the elected government. In Maharashtra, for example, the situation was indeed bizarre insomuch as the Governor refusing to accept the date of election of the Speaker recommended by the State government. Consequently, the Assembly could not elect the Speaker.

•The situation in Kerala has been no less bizarre. The State Governor having reappointed the Vice Chancellor of Kannur University in accordance with the law, made an allegation against the Kerala government that he was under pressure from the Government to reappoint the Vice Chancellor. The Governor confessed that he had done the wrong thing by yielding to governmental pressure. He has added that he does not want to remain the Chancellor any more, though he holds this position in an ex-officio capacity which means that he would have to remain the Chancellor as long as he is the Governor. But the Governor remains adamant.

•The Governor levelling allegations against his own government is not a first-time development. In West Bengal this has been a regular feature. Similarly, non-acceptance of the advice of the Council of Ministers too has been witnessed in Rajasthan as well as Maharashtra again. Of course, there have been differences between Governors and Chief Ministers in the past too, but these have been rare occurrences. But the open confrontations now clearly cross the boundaries of what is constitutionally permissible behaviour.

With discretionary powers

•The relationship between the Governor and Chief Minister has, even at the best of times, not been absolutely simple and tension free. It has something to do with the whole idea of the office of the Governor and its past history. In the colonial era, the Governor was the absolute ruler of the province who was answerable ultimately to His Majesty, the King. A closer look at the debates in the Constituent Assembly on the Governor would reveal that there were divergent views on the powers to be given to the Governor. In fact, there were members in the Assembly who wanted the Governor to be as powerful as the colonial-era Governors. Though B.R. Ambedkar was clear that the Governor should only be a constitutional head and the executive power should vest entirely in the elected government, he promoted the idea of vesting certain discretionary powers in the Governor. In this respect he was guided by the thinking that the State governments are in subordination to the Union government and, therefore, the Governor should be given discretionary powers to ensure that they act so.

•So, ultimately, the Governor who emerged from the Constituent Assembly was one with certain discretionary powers prescribed by or under the Constitution unlike the President of India who has not been given any such powers. Further, Article 163 (Article 143 in the draft Constitution) became a ‘blind reproduction of Section 50 of the Government of India Act 1935’ (H.V. Kamath). This exact reproduction of the provision in the Act of 1935 has, to a great extent, introduced a vagueness about the actual powers of the Governor vis-à-vis the elected government in democratic India which was corrected only with the Supreme Court of India stating the law in unambiguous terms in Shamsher Singh (1974). From Shamsher Singh to Nabam Rebia (2016) the top court declared that the Governor can, in the exercise of executive power of the state, act only on the aid and advice of the Council of Ministers “ in a few well-known exceptional situations”.

The Maharashtra case

•The Maharashtra Governor’s refusal to accept the date of election of the Speaker goes against the principles of constitutional government. It must be stated here that the Constitution has not assigned any role to the Governor in the election of the Speaker under Article 178, which is exclusively the job of the House. It is only the House rule which says that the Governor shall fix the date. The date as such has no great significance. Under the procedure followed in all Assemblies, the government fixes the date and conveys it to the Secretary of the Assembly who forwards it to the office of the Governor for his signature. After the date is formally approved by the Governor — which he is duty bound to do — the members are informed about it.

•Now the question is if the Governor does not approve the date, can the election be held? Fixing the date by the Governor is not of any constitutional importance; election by the House is the important thing. So, if the Governor stands in the way of the election, the only way open to the House is to amend that particular rule which empowers the Governor to fix the date. It can provide that the Secretary on receiving the date from the government shall notify the members of the same. The election can be held either through secret ballot or through a motion in the House as is done by the Lok Sabha. But it must be said that it could be for the first time in the history of free India that a Governor has refused to fix the date of election of the Speaker and, consequently, the election could not be held. The Maharashtra Assembly is now without a Speaker being in office.

In Kerala

•The Kerala situation is even more curious. There, the controversy surrounds the reappointment of the incumbent Vice Chancellor of Kannur University. There was a suggestion from the State government routed through the Pro Chancellor who is the Minister for Higher Education for the reappointment of the incumbent Vice Chancellor. The Governor being the ex-officio Chancellor of the university and the appointing authority, accepted the suggestion and reappointed him. After some time, the Governor went public with a serious allegation that he had signed the order of appointment under pressure from the Government and that he had done the wrong thing by reappointing the Vice Chancellor under pressure.

•It must be stated here that the Governor had acted perfectly in accordance with the law in reappointing the incumbent Vice Chancellor. Under the University Act, an incumbent Vice Chancellor is eligible for reappointment. Since the Act does not lay down any specific procedure for reappointment, the Chancellor was right in accepting the suggestion or the recommendation made from the Government. In fact, he or she can accept suggestions from any person including the Leader of the Opposition in the Assembly. The point worth noting here is that the Governor as Chancellor is not required to act on the advice of the Council of Ministers in the matter of appointment of Vice Chancellor and others in the university. He can act absolutely independently. He could also have rejected the suggestion from the Government.

•The Kerala High Court has clarified this legal point in Gopalakrishnan vs Chancellor, University of Kerala. So the Governor of Kerala needs to apply his mind independently to the case of reappointment, evaluate the performance of the Vice Chancellor and fully satisfy himself about the merit of the appointee before signing the appointment order. It is presumed that he had done this. Therefore, it is baffling why he chose to go public and level serious allegations against the Government and incriminate himself in the process. Adding to the confusion, the Governor has divested himself of the ex-officio charge of Chancellor and declared that he will not be functioning as Chancellor. Needless to say, one cannot relinquish a charge which he holds in an ex-officio capacity unless he leaves his substantive post.

Detachment is the essence

•These are very bizarre situations indeed. The Governor is a high constitutional authority. He needs to function within the four walls of the Constitution and be a friend, philosopher and guide to his government. The Constitution does not allow him to be a parallel government; nor does it make him personally responsible for his actions as Governor. That such confrontations take place only in Opposition-ruled States shows that political expediency has overtaken constitutional propriety. Wading through the Constituent Assembly debates, one comes across these wise words of Pandit Thakur Das Bhargava, a conscientious member of the Assembly: “He (Governor) will be a man above party and he will look at the minister and government from a detached stand point”. Detachment is the essence of India’s ancient culture. But Pandit Thakur Das’s voice has ended up as a voice in the wilderness.

📰 A Bill that could alter the mediation landscape

A spin-off from the Mediation Bill is its potential to help relieve some of the pressure on law enforcement agencies

•The Chief Justice of India (CJI), N.V. Ramana, while speaking at the India-Singapore Mediation Summit in July 2021 had said that mediation should be made mandatory as a first step in dispute resolution and that a law should be framed in this regard. The context was the huge pendency of cases in India. In his speech called “Mediation for everyone: Realizing mediation’s potential in India”, he emphasised the point that a movement needs to be launched to popularise mediation as it was a cheaper and faster dispute resolution mechanism. Months later in December 2021, the CJI, while addressing the Curtain Raiser and Stakeholders’ Conclave of International Arbitration and Mediation Centre (IAMC) at the Hyderabad International Convention Centre, Hyderabad, said that courts should be the last resort for dispute resolution; therefore, one should explore the options of alternate dispute resolution.

Expressed in these laws

•In India, though mediation finds legitimacy in some specific laws such as the Code of Civil Procedure, 1908, the Arbitration and Conciliation Act, 1996, the Companies Act, 2013, the Commercial Courts Act, 2015, and the Consumer Protection Act, 2019, there is no standalone legislation as yet. The Tamil Nadu Mediation and Conciliation Centre, an initiative of the Madras High Court and India’s first court-annexed facility with a mediation centre in every district, which was inaugurated in 2005 has significantly reduced the pendency of referred cases.

Bill scope

•The Mediation Bill, 2021, introduced in Parliament in December 2021, seeks to ‘promote mediation (including online), and provide for enforcement of settlement agreements resulting from mediation’. In case of civil or commercial disputes, a person must try to settle the dispute by mediation before approaching a court or tribunal. Disputes not fit for mediation inter alia include those relating to prosecution for criminal offences, disputes involving allegation of serious and specific fraud, fabrication of documents, forgery, impersonation and coercion. However, there are certain provisions in the Bill which may help in improving the law and order situation in a locality and/or encourage compounding of criminal offences.

•First, Section 7 of the Bill says that courts will be competent to refer any dispute to mediation relating to compoundable offences or matrimonial offences connected with or arising out of civil proceedings between the parties. Second, Section 44 of the Bill provides for ‘any dispute likely to affect peace, harmony and tranquillity amongst the residents or families of any area or locality’, to be settled through community mediation. Any settlement so arrived at, however, shall not be enforceable as a judgment or decree of a civil court. Third, the provisions of the Act shall not have overriding effect, inter alia, on the Maintenance and Welfare of Parents and Senior Citizen Act, 2007 and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

•It implies that if any dispute (as referred above) is resolved through mediation, it may lead to a compounding of criminal offence arising out of that civil or commercial dispute. Similarly, if any local dispute has the potential to create a law and order situation, and result in the registration of a criminal case or cases, those could be avoided through community mediation. It is true that many serious offences are the outcome of minor disputes which are either not tackled properly or left unattended.

•Therefore, though the proposed law primarily intends to resolve civil and commercial disputes through mediation, it has ample scope to relieve some of the pressure on law enforcement agencies. The law to prevent the sexual harassment of women at the workplace has probably been kept out of its scope so that an internal or local complaint committee is able to take up conciliation and close the case locally without involving a third party and detailed procedure. The law on the maintenance and the welfare of parents and senior citizens has also been kept out of its scope as offences under it are cognisable offences.

•Section 320 in the Code Of Criminal Procedure (CrPC) provides for the compounding of certain criminal offences which shall have the effect of acquittal of the accused. There are about 43 criminal offences, from body offences to property offences, which can be compounded by the victim, and about 13 offences (of comparatively greater gravity) which can be compounded with the permission of the court. Here, the policy of the law is to promote friendliness between the parties so that peace between them is restored. A case may be compounded any time before the sentence is pronounced.

Court’s view

•The Supreme Court of India has held that if there is composition of an offence during investigation, the parties can either approach the court or the police. The police, on verification of the truth, genuineness and voluntariness of the composition, may record the statement of the victim and recommend to the Magistrate to accept the negative final report. The Magistrate after giving notice to the complainant can make an appropriate decision in the matter accepting the composition. In other cases, appropriate orders may be passed by the court, and leave granted to compound the offence. Thus, under both conditions, if a dispute is resolved amicably, including through mediation, it may result in its compounding under the CrPC. The number of offences which can be compounded may also be increased — particularly property offences. Keeping in view the recommendations of the Law Commission in its 243rd report, Section 498A of the Indian Penal Code, relating to cruelty by the husband or his relatives, can also be made compoundable. It may have far-reaching consequences in resolving matrimonial disputes.

The background

•It is undisputed that many civil or commercial disputes are given the colour of a criminal offence and reported to the police so that they get resolved under the fear of arrest. Many criminal offences are a result of the fact that civil or commercial disputes could not be resolved amicably and in time. The police at times take minor cases lightly or reduce the seriousness of crime by converting a cognisable offence into a non-cognisable one. Some of these cases may become aggravated with time and assume serious consequences. Therefore, the proposed law of mediation, that has the mechanism of not only preventing the breakdown of law and order through community intervention but also the competence to smoothen the route to compounding of certain criminal offences, may ultimately relieve some of the pressure on the police also.