Note4Students
From UPSC perspective, the following things are important :
Prelims level: Article 142
Mains level: Paper 2- Implications of Perarivalan case for federalism
Context
The recent decision of the Supreme Court of India in the case of A.G. Perarivalan has stirred up a hornet’s nest.
Use of Article 142 to grant pardon
- The Court has treaded the extraordinary constitutional route under Article 142.
- The Bench decided to exercise the power of grant of pardon, remission et al., exclusively conferred on the President of India and State Governors under Articles 72 and 161.
- Against the separation of power: Against the background of separation of powers viz. Parliament/Legislature, Executive and Judiciary, whether the course adopted by the Bench to do expedient justice is constitutional calls for introspection.
Evaluating the constitutionality of decision
- The power under Article 161 is exercisable in relation to matters to which the executive power of the state extends.
- Discretionary power under Article 161: Article 161 consciously provides a ‘discretion’ to the Governor in taking a final call, even if it was not wide enough to overrule the advice, but it certainly provides latitude to send back any resolution for reconsideration, if, in his opinion, the resolution conflicted with constitutional ends.
- In Sriharan’s case (2016 (7) SCC P.1), one of the references placed for consideration was whether the term ‘consultation’ stipulated in Section 435 Cr.P.C. implies ‘concurrence’.
- It was held that the word ‘consultation’ means ‘concurrence’ of the Central government.
- The Constitution Bench highlighted that there are situations where consideration of remission would have trans-border ramifications and wherever a central agency was involved, the opinion of the Central government must prevail.
- Basing its conclusion on the legal position that the subject matter (Section 302 in the Indian Penal Code) murder, falls within Lists II and III (State and Concurrent lists) of the Seventh Schedule to the Constitution, the learned judges concluded that the State was fully empowered to take a call and recommend remission in this case.
- If it is a simple case of being a Section 302 crime, the reason for finding fault with the Governor’s decision to forward the recommendation to the President may be constitutionally correct.
- But the larger controversy as to whether the Governor in his exercise of power under Article 161 is competent at all, to grant pardon or remission in respect of the offences committed by the convicts under the Arms Act, 1959, the Explosive Substances Act, 1908, the Passports Act, 1967, the Foreigners Act, 1946, etc., besides Section 302, is not certain.
- According to the decision, it is a simple murder attracting Section 302 of the IPC and therefore the Governor’s decision to forward the recommendation to the President is against the letter and spirit of Article 161 — meaning it is against the spirit of federalism envisaged in the Constitution.
- Constitutionality use of Article 142: There are momentous issues that are flagged on the exercise of the power of remission under Article 142, by the Supreme Court in the present factual context.
- The first is whether Article 142 could be invoked by the Court in the circumstances of the case when the Constitution conferred express power on the Governor alone, for grant of pardon, remission, etc., under Article 161.
Way forward
- Deeper judicial examination: Whether what the State government could not achieve directly by invoking Sections 432 and 433 of Cr.P.C, without concurrence of Centre could be allowed to take a contrived route vide Article 161 and achieve its objectives is a pertinent issue.
- This aspect requires deeper judicial examination for the sake of constitutional clarity.
- Timeframe for the Governor: The Constitution does not lay down any timeframe for the Governor to act on the advice of the Council of Ministers.
- In any event, even if the delay was constitutionally inexcusable or was vulnerable to challenge, the final arbiter of the Constitution (Article 245) could not have trumped Article 161 with Article 142, which is constitutionally jarring.
Conclusion
To portray the remission as to what it was not in the State is a sad fallout the lawlords on the pulpit may not have bargained for. And on the constitutional plane, this verdict deserves a relook, even a review, as it stands on wobbly foundations built with creaky credence.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Section 124A IPC
Mains level: Sedition law and Free speech
The Supreme Court suspended pending criminal trials and court proceedings under Section 124A (sedition) of the Indian Penal Code, while allowing the Union of India to reconsider the British-era law.
What did the SC say?
- All pending trials, appeals and proceedings with respect to the charge framed under Section 124A of the IPC be kept in temporary suspension.
- The court also restrained centre and states from registering FIRs, continuing investigations or take coercive measures under Section 124A.
What is the Sedition Law?
- Section 124A of the Indian Penal Code lays down the punishment for sedition. The IPC was enacted in 1860, under the British Raj.
- The then British government in India feared that religious preachers on the Indian subcontinent would wage a war against the government.
- Particularly after the successful suppression of the Wahabi/Waliullah Movement by the British, the need was felt for such law.
- Throughout the Raj, this section was used to suppress activists in favor of national independence, including Tilak and Mahatma Gandhi, both of whom were found guilty and imprisoned.
Do you know?
Queen-Empress v. Bal Gangadhar Tilak (1897) was the first case in which Section 124A was defined and applied. Again in 1908, when Tilak was tried under same section, then young barrister and a staunch protagonist Mohammed Ali Jinnah defended Tilak.
What is Sedition?
- The Section 124A defines sedition as:
An offence committed when “any person by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India”.
- Disaffection includes disloyalty and all feelings of enmity.
- However, comments without exciting or attempting to excite hatred, contempt or disaffection, will not constitute an offense.
- Sedition is a non-bailable offense.
- Punishment under Section 124A ranges from imprisonment up to three years to a life term with/without a fine.
Sedition as a cognizable offense
- Sedition was made a cognizable offense for the first time in history in India during the tenure of Prime Minister Indira Gandhi in 1973, that is, arrest without a warrant was now permissible.
- In 1962 the Supreme Court of India interpreted the section to apply only if there is, say, “incitement to violence” or “overthrowing a democratically elected government through violent means”.
Is it constitutionally valid?
- Violative of FRs: Two high courts had found it unconstitutional after Independence, as it violated the freedom of speech and expression.
- Reasonable restrictions: The Constitution was amended to include ‘public order’ as one of the ‘reasonable restrictions’ on which free speech could be abridged by law.
- Kedar Nath Case: Thereafter, the Supreme Court, in Kedar Nath Singh v. State of Bihar (1962) upheld its validity.
- Limited use: At the same time, it limited its application to acts that involve “intention or tendency to create disorder” or incitement to violence.
- Strong criticism doesn’t amount to sedition: Thus, even strongly worded remarks, as long as they do not excite disloyalty and enmity, or incite violence, are not an offence under this section.
Why the controversy now?
- Frequent use: In recent times, the resort to this section is seen as disturbingly frequent.
- Curbing dissent: Activists, cartoonists and intellectuals have been arrested under this section, drawing criticism from liberals that it is being used to suppress dissent and silence critics.
- Misuse for propaganda: Authorities and the police who invoke this section defend the measure as a necessary step to prevent public disorder and anti-national activities.
- Irrelevance: Many of them have also been detained under the National Security Act and UAPA.
What is being debated about it?
- Demand for its scrapping: Liberals and rights activists have been demanding the scrapping of Section 124A.
- Provision is outdated: It is argued that the provision is “overbroad”, i.e., it defines the offence in wide terms threatening the liberty of citizens.
- Various calls for its reconsideration: The Law Commission has also called for a reconsideration of the section.
- Tyranny of the law: It has pointed that Britain abolished it more than a decade ago and raised the question of whether a provision introduced by the British to put down the freedom struggle should continue to be law in India.
- Doctrine of severability: Some argue that a presumption of constitutionality does not apply to pre-constitutional laws as those laws have been made by foreign legislature or bodies.
Need for such law
- There are some tendencies exist even today who wish to overthrow the state apparatus and constitutional scheme of India.
- It falls on the judiciary to protect Articles 19 and Article 21 of the Constitution.
- Undue exercise of free speech has led to overture of ordinary dissent into an anti-national insurrection or uprising.
- There are areas in the country that face hostile activities and insurgencies created by rebel groups, like the Maoists.
- There must be restrictions on expressing unnecessary contempt or ridiculing of the Government beyond certain limits.
Way forward
- India is the largest democracy in the world and the right to free speech and expression is an essential ingredient of democracy.
- The sedition law should not be abolished as some measures are needed to check communal violence & insurgency activities like Naxals.
- The definition of sedition should be narrowed down, to include only the issues pertaining to the territorial integrity of India as well as the sovereignty of the country.
- Section 124A should not be misused as a tool to curb free speech.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Aadhaar and its minuscles
Mains level: Data Privacy and Aadhaar
Two days after issuing an advisory asking people to refrain from sharing photocopies of their Aadhaar Card, the Unique Identification Development Authority of India (UIDAI) opted to withdraw the notification.
UIDAI Advisory
- The withdrawn notice had suggested holders use a masked Aadhaar card instead of the conventional photocopy.
- It added that the document must not be downloaded from a cybercafe or public computer and if done for some reason, must be permanently deleted from the system.
- Private entities like hotels or film halls cannot collect or keep copies of the identification document.
What is Masked Aadhaar?
- ‘Masked Aadhaar’ veils the first eight digits of the twelve-digit ID with ‘XXXX’ characters.
- The notice informed that only entities possessing a ‘User Licence’ are permitted to seek Aadhaar for authentication purposes.
Why in news now?
- In July 2018, Telecom Regulatory of India’s Chairman tweeted his Aadhaar number challenging users to “cause him any harm”.
- In response, users dug up his mobile number, PAN number, photographs, residential address and date of birth.
- UIDAI dismissed assertions of any data leak, arguing that most of the data was publicly available.
- It did however caution users from publicly sharing their Aadhaar numbers.
Security of Aadhaar: What does the law say?
- The Aadhaar (Targeted Delivery of Financial and Other Subsidies Benefits and Services) Act, 2016 makes it clear.
- Aadhaar authentication is necessary for availing subsidies, benefits and services that are financed from the Consolidated Fund of India.
- In the absence of Aadhaar, the individual is to be offered an alternate and viable means of identification to ensure she/he is not deprived of the same.
- Separately, Aadhaar has been described as a preferred KYC (Know Your Customer) document but not mandatory for opening bank accounts, acquiring a new SIM or school admissions.
- The requesting entity would have to obtain the consent of the individual before collecting his/her identity.
- The entity must ensure that the information is only used for authentication purposes on the Central Identities Data Repository (CIDR).
What is CIDR?
- This centralised database contains all Aadhaar numbers and holder’s corresponding demographic and biometric information.
- UIDAI responds to authentication queries with a ‘Yes’ or ‘No’.
- In some cases, basic KYC details (as name, address, photograph etc.) accompany the verification answer ‘Yes’.
- The regulator does not receive or collect the holder’s bank, investment or insurance details.
Protection of confidentiality
- The Act makes it clear that confidentiality needs to be maintained and the authenticated information cannot be used for anything other than the specified purpose.
- More importantly, no Aadhaar number (or enclosed personal information) collected from the holder can be published, displayed or posted publicly.
- Identity information or authentication records would only be liable to be produced pursuant to an order of the High Court or Supreme Court, or by someone of the Secretary rank or above in the interest of national security.
Is identity theft via Aadhaar possible?
- As per the National Payment Corporation of India’s (NCPI) data, ₹6.48 crore worth of financial frauds through 8,739 transactions involving 2,391 unique users took place in FY 2021-22.
- Since the inception of the UID project, institutions and organisations have endowed greater focus on linking their databases with Aadhaar numbers.
- This include bank accounts especially in light of the compulsory linkage for direct benefit transfer schemes.
Structural problems with UIDAI
- The Aadhaar Data Vault is where all numbers collected by authentication agencies are centrally stored.
- Comptroller and Auditor General of India’s (CAG) latest report stipulated that UIDAI has not specified any encryption algorithm (as of October 2020) to secure the same.
- There is no mechanism to illustrate that the entities were adhering to appropriate procedures.
- Further, UIDAI’s unstable record with biometric authentication has not helped it with de-duplication efforts, the process that ensures that each Aadhaar Number generated is unique.
- The CAG’s reported stated that apart from the issue of multiple Aadhaars to the same resident, there have been instances of the same biometric data being accorded to multiple residents.
Conclusion
- The CAG concluded it was “not effective enough” in detecting the leakages and plugging them.
- Biometric authentications can be a cause of worry, especially for disabled and senior citizens with both the iris and fingerprints dilapidating.
- Though the UIDAI has assured that no one would be deprived of any benefits due to biometric authentication failures.
- The absence of an efficient technology could serve as poignant premise for frauds to make use of their ‘databases’.
Try this PYQ:
Q.Consider the following statements:
- Aadhaar metadata cannot be stored for more than three months.
- State cannot enter into any contract with private corporations for sharing of Aadhaar data.
- Aadhaar is mandatory for obtaining insurance products.
- Aadhaar is mandatory for getting benefits funded out of the Consolidated Fund of India.
Which of the statements given above is/are correct?
(a) 1 and 4 only
(b) 2 and 4 only
(c) 3 only
(d) 1, 2 and 3 only
Post your answers here.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Liquid Nano Urea (LNU)
Mains level: India's fertilizer subsidy
During his visit to Gujarat, Prime Minister inaugurated the country’s first liquid nano urea plant at Kalol.
Liquid Nano Urea (LNU)
- Urea is chemical nitrogen fertiliser, white in colour, which artificially provides nitrogen, a major nutrient required by plants.
- LNU is essentially urea in the form of a nanoparticle.
- It is sprayed directly on the leaves and gets absorbed by the plant.
- Fertilisers in nano form provide a targeted supply of nutrients to crops, as they are absorbed by the stomata, pores found on the epidermis of leaves.
- According to IFFCO, liquid nano urea contains 4 per cent total nitrogen (w/v) evenly dispersed in water.
- The size of a nano nitrogen particle varies from 20-50 nm. (A nanometre is equal to a billionth of a metre.)
Significance of LNU
- This patented product is expected to not only substitute imported urea, but to also produce better results in farms.
- Apart from reducing the country’s subsidy bill, it is aimed at reducing the unbalanced and indiscriminate use of conventional urea.
- It will help increase crop productivity, and reduce soil, water, and air pollution.
Using LNU
- The liquid nano urea produced by Indian Farmers Fertiliser Cooperative (IFFCO) Limited comes in a half-litre bottle priced at Rs 240, and carries no burden of subsidy currently.
- By contrast, a farmer pays around Rs 300 for a 50-kg bag of heavily subsidised urea.
- According to IFFCO, a bottle of the nano urea can effectively replace at least one bag of urea.
How efficient is LNU?
- While conventional urea has an efficiency of about 25 per cent, the efficiency of liquid nano urea can be as high as 85-90 per cent.
- Conventional urea fails to have the desired impact on crops as it is often applied incorrectly, and the nitrogen in it is vaporized or lost as a gas.
- A lot of nitrogen is also washed away during irrigation.
- Liquid nano urea has a shelf life of a year, and farmers need not be worried about “caking” when it comes in contact with moisture.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Astra AAM
Mains level: India's missile arsenal
The Ministry of Defence has signed a contract with Bharat Dynamics Ltd (BDL) for the supply of the Astra Mark-1for deployment on fighter jets of the Indian Air Force and Indian Navy.
Astra Missile
- The Astra Mk-1 is a beyond visual range (BVR), air-to-air missile (AAM).
- The Astra project was officially launched in the early 2000s with defined parameters and proposed future variants.
- The missile has been designed and developed by the Defence Research and Development Organisation (DRDO).
- It will be deployed on fighter jets like Sukhoi-30 MKI and Tejas of the IAF and the Mig-29K of the Navy.
- BVM missiles are capable of engaging beyond the range of 20 nautical miles or 37 kilometres.
Range and its Variants
- While the range for Astra Mk-1 is around 110 km, the Mk-2 with a range over 150 km is under development and Mk-3 version with a longer range is being envisaged.
- One more version of Astra, with a range smaller than Mk-1 is also under development.
Strategic significance
- The missile has been designed based on requirements specified by the IAF for BVR as well as close-combat engagement, reducing the dependency on foreign sources.
- AAMs with BVR capability provides large stand-off ranges to own fighter aircraft.
- It can neutralise adversary airborne assets without exposing adversary air defence measures.
- Stand-off range means the missile is launched at a distance sufficient to allow the attacking side to evade defensive fire from the target.
- Astra is technologically and economically superior to many such imported missile
- The missile can travel at speeds more than four times that of sound and can reach a maximum altitude of 20 km, making it extremely flexible for air combat.
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Railway links mentioned
Mains level: India-Bangladesh connectivity
Two years after they were stopped due to the onset of the pandemic, passenger train services between India and Bangladesh resumed with the Bandhan Express setting off from Kolkata for Khulna and the Maitree Express starting its run from Dhaka for Kolkata.
History of Rail Connectivity
- The Bandhan Express was resumed by rebooting a long-forgotten rail link between Kolkata and the industrial hub of Khulna, the third-largest city of Bangladesh.
- In 1965, this route was served by the Barisal Express, which was stopped due to the India-Pakistan war.
- The Modi government along with the Sheikh Hasina regime restarted that with Bandhan in 2017.
- The Bandhan Express was the second train to be flagged off after the introduction of Maitree Express between Kolkata and Dhaka Cantonment in April, 2008.
- It covers the distance between Kolkata and Khulna via Petrapole and Benapole border route to cater to the demands of the people from both the countries.
- The Bandhan Express was resumed in 2017 by rebooting a long-forgotten rail link between Kolkata and the industrial hub of Khulna.
Beyond passenger travel
- The governments of both the countries have been working towards strengthening the rail link between them, and not just through passenger trains.
- In August 2021, the two sides started regular movement of freight trains between the newly-restored link between Haldibari in India and Chilahati in Bangladesh.
- The Haldibari-Chilahati rail link between India and the then East Pakistan was also operational till 1965 and stopped due to the war.
- This was part of the broad gauge main route from Kolkata to Siliguri at the time of Partition.
- The two sides envisage at least 20 freight trains to cross the border per month on this link.
Rail infrastructure
- Once part of a single, seamless railway network under British rule, trains continued to pass between the two countries even after the Partition.
- The infrastructure to connect the two sides through railways was, therefore, largely present.
- Policymakers on both sides viewed this as an opportunity to deepen diplomatic ties using cross-border movements of goods and passengers.
- Five rail links have so far been rebooted between India and Bangladesh:
Petrapole (India)-Benapole (Bangladesh), Gede (India)- Darshana (Bangladesh), Singhabad (India)-Rohanpur (Bangladesh), Radhikapur (India)-Birol (Bangladesh) and the Haldibari-Chilahati link
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Note4Students
From UPSC perspective, the following things are important :
Prelims level: Not much
Mains level: Paper 2- Section 124A of IPC
Context
By order dated May 11, 2022, a Bench presided over by the Chief Justice of India, has directed that the petitions challenging the Section 124A be listed for final determination in the third week of July 2022; and that in the meantime suspend the use of Section 124A IPC.
Historical background of Section 124A
- With effect from 1870, (as amended in 1955), Section 124A of the Penal Code read:
“Whoever by words, spoken or written, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection, towards the Government established by law in India shall be punished with imprisonment for life…”.
- “Sedition” is the vaguest of all offences known to the criminal law.
- In colonial times, it was defined expansively in order to uphold the majesty of British power in India.
- Before 1950, there were several Court decisions in operation on Section 124A; amongst them was Bal Gangadhar Tilak’s case (1897).
- Absence of affection: In Bal Gangadhar Tilak’s case the Privy Council declined to grant leave to appeal, affirming that “disaffection” only meant “absence of affection in any degree towards the British rule or its administration or representatives”, and that exciting of mutiny or rebellion or actual disturbance of any sort was “absolutely immaterial”.
- With the establishment of a Federal Court by the Government of India Act, 1935, in Niharendu Dutt Majumdar And Ors. vs Emperor the Federal Court held that if the language of Section 124A were to be read literally “it would make a surprising number of persons in India guilty of sedition and that no one, however, supposes that it is to be read in this literal sense”
- However, in 1947 it was precisely in this literal sense that the interpretation of Section 124A was reiterated by a Bench of five judges of the Privy Council (AIR 1947 P.C. 82) in which it was declared that: “If the Federal Court had given their attention to Tilak’s case (1897) they should have recognised it as an authority… by which they were bound”.
- With the advent of the Constitution of India on January 26, 1950, this interpretation of Section 124A became “the law in force immediately before the commencement of the Constitution”.
Section 124A after 1950
- Article 372: It stated that all laws in force in the territory of India immediately before the commencement of the Constitution shall continue in force therein until altered or repealed or amended by a competent legislature or other competent authority.
- Protected due to Article 19(2): In 1962, in criminal appeals arising from the states of Bihar and Uttar Pradesh, a Constitution Bench of the Supreme Court held that though Section 124A “clearly violated” the fundamental right to freedom of speech and expression in Article 19(1)(a), it was not unconstitutional only because it was protected from challenge by the words “in the interests of public order” in Article 19(2).
Conclusion
This background has now become pertinent and relevant, because in a fresh batch of writ petitions filed in 2021, the constitutionality of Section 124A (IPC) has been once again challenged in the Supreme Court.
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