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  • [26th September 2026] The Hindu OpED: The case for accountable lottery regulation in India

    [26th September 2026] The Hindu OpED: The case for accountable lottery regulation in India

    Question (2019, GS2 – 10 Marks): “From the resolution of contentious issues regarding distribution of legislative powers by the courts, ‘Principle of Federal Supremacy’ and ‘Harmonious Construction’ have emerged. Explain.
    Linkage: The B.R. Enterprises judgment is a classic example of harmonious construction and reading down a statute. The Supreme Court harmonized Union List Entry 40 (Lotteries organized by the Government of India or a State) and State List powers with Article 301 (Freedom of Trade and Commerce) to prevent discriminatory protectionism between states.

    Mentor Comment

    Prohibition of a vice with persistent demand removes legal supply and leaves the demand intact. The Lotteries (Regulation) Act, 1998 lets a State organise a lottery and lets a State prohibit lotteries organised by others. B.R. Enterprises vs State of U.P. (1999) read that second power down, so a State may exclude other States’ lotteries only by abandoning its own and becoming wholly lottery free. Faced with that trade off between revenue and regulatory control, two large States chose total prohibition and forfeited the option of running an accountable public lottery. The contest is between a State’s interest in supervising what is sold inside its territory and a legal rule built as an all or nothing choice.

    What does the Lotteries (Regulation) Act, 1998 provide?

    1. Legislative competence: Government organised lotteries fall under Entry 40 of the Union List.
    2. Section 4: The Act permits States to organise lotteries subject to the conditions in Section 4. Section 4 also permits a State to sell tickets directly, or through distributors or agents.
    3. Section 5: Section 5 empowers a State to prohibit lotteries organised by other States inside its territory.
    4. Section 6: Section 6 empowers the Union government to prohibit a lottery in violation of Sections 4 and 5.

    What harms do lotteries carry?

    1. Regressive burden: Lotteries disproportionately burden poorer households. They encourage a household to stake scarce income on a remote chance of reward.
    2. Compulsive play: Rapid draws and instant games encourage compulsive play and loss chasing.
    3. Distorted risk perception: Giant jackpots distort the perception of risk.
    4. Sales practices: Credit sales, opaque odds and manipulative advertising compound these harms.
    5. What the harms justify: These are arguments for stringent regulation, not necessarily for prohibition.

    What does a prohibition produce instead?

    1. Illegal channels: A ban pushes players towards smuggled tickets, offshore portals and unlicensed numbers betting such as matka, satta and single digit rackets.
    2. Absence of safeguards: These enterprises operate through cash agents and mule accounts. They carry no audits, no age restrictions, no secured prize funds and no effective remedy against fraud.
    3. Revenue forgone: Governments lose lottery surpluses and Goods and Services Tax (GST) revenue.
    4. Livelihoods and enforcement: Legitimate vendors, many of them poor or disabled, lose their livelihoods. Enforcement costs rise at the same time.
    5. The paradox of protection: A state seeking to protect the vulnerable leaves them at the mercy of unaccountable operators.

    Is the state’s paternalism applied evenly across classes?

    1. Permitted speculation: An affluent citizen can day trade, use leveraged derivatives or speculate in crypto assets. The risk of ruinous losses in those markets is no bar to entry.
    2. No competence test: The state does not test competence before admitting a retail trader to these markets. Securities trading involves skill, and derivatives support hedging and price discovery.
    3. The regulator’s own finding: The Securities and Exchange Board of India (SEBI) found that the vast majority of day traders, and of traders in futures and options, incurred losses.
    4. Why markets are legal: Financial markets are legal because risks are disclosed, intermediaries are regulated and fraud is punished. Adult choice is preserved alongside those safeguards.
    5. Application to lotteries: Lotteries can follow the same principle, with more stringent safeguards appropriate to games of chance.

    What does international practice show about regulating rather than banning?

    1. United States prohibition, 1920 to 1933: The United States imposed prohibition through the Eighteenth Amendment and the Volstead Act. It suppressed legal supply and left demand intact.
    2. What the ban produced: Prohibition fuelled a lucrative black market controlled by violent syndicates. Bootlegging corrupted public institutions, deprived governments of excise revenue and imposed heavy enforcement costs.
    3. The repeal: The Twenty First Amendment repealed prohibition, on the recognition that a regulated and taxed market causes fewer harms than an unenforceable ban.
    4. Controlled legality is the norm: Lotteries are legal in nearly four fifths of countries, with surpluses allocated transparently to education, health care, sports, welfare or infrastructure. Blanket prohibition survives mainly in countries enforcing strict Sharia based gambling prohibitions, such as Saudi Arabia, Iran and Brunei, and in closed ideological regimes such as Cuba.
    5. The public operator model: Nearly 70 per cent of lottery jurisdictions follow the public operator model. A government body, statutory authority or State owned company runs the lottery, and private firms supply retail and technology services.
    6. The concession model: The State regulates the lottery and grants operating rights to a private concessionaire.
    7. Federal practice: Lotteries operate in 45 of the 50 United States and Washington DC, in all 10 Canadian provinces and three territories, in all six Australian States and both mainland territories, and in all 16 German Lander.
    8. Cross border sales: Authorisation in one jurisdiction does not confer the right to sell in another. Cross border sales require the destination jurisdiction’s consent or its participation in a cooperative arrangement.
    9. Pooling without losing control: Powerball in the United States, Lotto 6/49 in Canada, the Australian lottery blocs and Germany’s national lottery bloc, the DLTB, let participating jurisdictions pool players and prizes without surrendering regulatory autonomy.

    What does Indian law do to a State that wants to regulate rather than ban?

    1. Res extra commercium: Settled Supreme Court jurisprudence treats gambling, including State organised lotteries, as res extra commercium, meaning an activity outside the protection of Article 19(1)(g), the fundamental right to trade, and of Article 301, the freedom of trade across India.
    2. The alcohol parallel: A parallel doctrine applies to potable alcohol and allows a State to restrict or prohibit consignments from outside its territory.
    3. Why the all or nothing rule is hard to justify: A State directly oversees its own lottery administration. Its oversight of another State’s operations inside its territory is necessarily indirect, and it still bears the local enforcement burden.
    4. The choice two States made: Tamil Nadu in 2003 and Karnataka in 2007 chose total prohibition. Both gave up the option of running accountable public lotteries of their own.
    5. How many States run lotteries: A Lok Sabha reply of 14 March 2023 identified nine States operating lotteries: Arunachal Pradesh, Goa, Kerala, Maharashtra, Mizoram, Nagaland, Punjab, Sikkim and West Bengal.
    6. The fiscal context: Persistent State fiscal stress makes the widespread preference for prohibition worth reconsidering.

    What would an accountable alternative look like?

    1. First amendment, to Section 5: Parliament should clarify that Section 5 applies whether or not the prohibiting State organises a lottery of its own. The consent of the destination State should be decisive, subject to uniform treatment.
    2. Uniform treatment: A State must either admit all outside lotteries or exclude them all.
    3. Second amendment, a new Section 4A: A new Section 4A should authorise two or more States to establish a common lottery by agreement, pooling players, prizes, technology and costs.
    4. Why compulsory access is no remedy: Smaller States, especially in the northeast, face exclusion from larger markets. Compulsory access is not the remedy for that exposure.
    5. Departmental operation: Marketing agents supply guaranteed revenue. Departmental operation is more transparent and opens retail distribution to small vendors, persons with disabilities, women’s self help groups and cooperatives. That widens livelihood opportunities and limits intermediary capture.
    6. The Kerala record: Kerala earned Rs 2,883.80 crore from its lottery in the 2023 to 2024 financial year. That total is Rs 1,129.71 crore in net lottery revenue and Rs 1,754.09 crore in State Goods and Services Tax.
    7. Where the surplus goes: Kerala channels its lottery surpluses into health care and welfare. Its model is a useful template for reform rather than the only one.

    Conclusion

    A vice with persistent demand does not disappear when the state withdraws the legal channel. The transaction moves to operators who keep no accounts and answer to no regulator. The real choice for a State is therefore between an auditable public supplier and an untraceable illegal one. Current law forces that choice into an all or nothing form, so a State that wants to shut out unaccountable outside operators must first shut down its own accountable one, and it is that single provision that has to change first.

    Betting and Gambling Regulation in India

    1. Scale of the market: The online betting and gaming market was valued at 5.02 billion dollars in 2024 to 2025. It is projected to reach 10.77 billion dollars by 2030.
    2. User base: India has over 517 million online gamers, of whom 155 million play money based games. India accounts for 20 per cent of the global gaming user base.
    3. Split jurisdiction: Gambling is a State subject, and online gaming has been brought under the Union. That split produces persistent legal friction.
    4. The skill and chance test: In Dr. K.R. Lakshmanan v. State of Tamil Nadu (1996) the Court established the predominance of skill test. Horse racing qualified as a game of skill on that test.

    Government Initiatives

    1. Promotion and Regulation of Online Gaming Act, 2025: The Act prohibits online money games, meaning real money betting, and permits e sports and social games.
    2. Online Gaming Authority of India: A central regulator under the Ministry of Electronics and Information Technology classifies games, issues digital certificates and handles enforcement.
    3. Blocking duty on intermediaries: Amendments to the information technology intermediary guidelines require an intermediary to block any platform flagged as a money game by the Authority.

  • Conflict and consensus: The rupture in the poll panel

    Why in the News

    The functioning of the three member Election Commission of India (ECI) is under scrutiny after an investigation reported that two Election Commissioners placed objections on record at least 14 times in 10 months. The poll body has responded that its decisions have been unanimous. It describes the recorded entries as observations that form part of the deliberative process. The dispute is over whether a recorded objection is a dissent or a step inside a deliberation that ends in agreement.

    How does the Election Commission take decisions?

    1. Article 324: Article 324 of the Constitution vests the superintendence, direction and control of the preparation of electoral rolls and of the conduct of elections in the Commission. It covers elections to Parliament, to the legislature of every State and to the offices of President and Vice President.
    2. Composition: The Commission consists of the Chief Election Commissioner (CEC) and such number of other Election Commissioners as the President may appoint, subject to the provisions of law. The CEC acts as the Chairman of the Commission.
    3. Section 17: Section 17 of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 requires the business of the Commission to be transacted in accordance with that Act.
    4. Section 18: Section 18 requires all business of the Commission to be transacted unanimously as far as possible. A matter on which the CEC and the other Election Commissioners differ is decided by the opinion of the majority.
    5. Equal voting rights: All three members hold one vote each, and the CEC is the first among equals. Two of the three can therefore decide a matter that is not settled unanimously.

    What does the record of past differences show?

    1. The 1993 expansion: The Commission was permanently expanded from a single member body to a three member commission in 1993. Differences have emerged between the individuals holding the posts since then.
    2. T.N. Seshan vs Union of India (1995): The then Chief Election Commissioner had challenged the appointment of the two Election Commissioners in the Supreme Court. The Court upheld the appointment and ruled that the three members hold equal status and an equal say in decision making.
    3. The 2009 removal request: In January 2009 the then Chief Election Commissioner wrote to the President seeking the removal of an Election Commissioner, citing a lack of political neutrality. No such action followed, and that Commissioner was later appointed Chief Election Commissioner.
    4. The 2019 dissent: The majority view in 2019 gave the Prime Minister and the then president of the Bharatiya Janata Party a clean chit on complaints of Model Code of Conduct violations. A member of the Commission recorded a dissent against that view, and objected that his dissent notes were not being carried into the final orders passed by the Commission.
    5. The 2020 resignation: That member was in line to take over as Chief Election Commissioner on the basis of seniority. He opted to resign from the Commission in 2020.

    How is a dissent distinguished from an observation?

    1. Recording a dissent: An Election Commissioner who disagrees with the majority view can record a dissent note on the file.
    2. The observation on the draft revision order: Before the Commission issued the order starting the Special Intensive Revision (SIR) of electoral rolls on 24 June 2025, an Election Commissioner observed on the draft order that the exercise should not lead to harassment of voters and citizens. The recorded wording asked that genuine voters and citizens, particularly the old, the sick, persons with disabilities, the poor and other vulnerable groups, should not feel harassed and should be facilitated.
    3. Treated as an observation: That entry was treated as an observation rather than a dissent, and the revision order was eventually unanimous.
    4. Objections recorded since: The two Election Commissioners have recorded objections on files several times since. The subjects include the functioning of the poll body’s information technology infrastructure and the insertion of a new declaration in the voter enrolment form, Form 6.
    5. Routine differences: Differing opinions on matters before the Commission are a routine occurrence, on the conduct of elections and on administrative matters alike. The Commission meets once or twice a week to discuss pending matters.

    What has the Election Commission said?

    1. Observations as standard practice: Operational queries or inputs raised by members of the Commission at the draft stage are described as standard administrative practice aimed at safeguarding voter rights. The suggestions given by the Commissioners are described as being for further improving the electoral processes.
    2. Part of the decision making process: Differing views and observations are described as a normal part of deliberation in any institution, arriving before a final decision is taken.
    3. Every officer may suggest: Every officer of the Commission, and not only the three Commissioners, is authorised to give suggestions for improving the electoral system.
    4. Unanimity claimed: All decisions taken in recent months are described as the outcome of unanimous decisions. The Commission cited the recent elections in Bihar, Kerala, Tamil Nadu, Puducherry, Assam and West Bengal in support.

    Conclusion

    The statute makes unanimity a preference and a majority decision lawful, so a recorded difference inside the poll body is not by itself a breach of procedure. What the record cannot settle is whether an entry on a file is a suggestion or a refusal to agree, because the Commission alone decides how that entry is finally described. Past differences ended in a resignation, in an appointment and in a court ruling on equal status, never in a published account of who disagreed with what. A requirement that a dissent be carried into the final order is the change that would put that description beyond the Commission’s own choice.

    Back2Basics: Model Code of Conduct

    1. What it is: The Model Code of Conduct is a set of non statutory norms agreed upon by political parties. It exists to prevent the ruling party from misusing state machinery and to curb unethical campaign practices.
    2. Duration: It takes effect the moment the poll body announces the election schedule and remains in force until the results are declared.
    3. Penalties: The Code carries no statutory penal provision. The Commission can issue warnings, censure a candidate or delay a poll, and criminal violations such as bribery and hate speech are prosecuted under the Representation of the People Act, 1951 and the Bharatiya Nyaya Sanhita, 2023.
    4. Evolution: It began in 1960 as a short set of instructions for the Kerala Assembly elections. It was consolidated into its present form in 1991.

    Matching Previous Year Question

    “[2017] Consider the following statements: 1. The Election Commission of India is a ‘ five-member body. 2. Union Ministry of Home Affairs decides the election schedule for the conduct of both general elections and bye-elections. 3. Election Commission resolves the disputes relating to splits/mergers of recognized political parties. Which of the statements given above is/are correct ? (a) 1 and 2 only (b) 2 only (c) 2 and 3 only (d) 3 only Answer: (d)”

  • Declaration part of Form 6 changed since SIR in Bihar

    Why in the News

    The declaration attached to Form 6, the application for fresh registration as a voter, has changed substantially across the phases of the Special Intensive Revision (SIR) of electoral rolls. A first time applicant must now furnish details drawn from the last revision. The declaration itself was introduced during the first phase of the revision in Bihar. Two Election Commissioners flagged the change in separate notes and letters in May 2026 and in August 2026. The dispute is whether an addition of this kind could be made at all without the Union government amending the rule the form sits inside.

    What is Form 6?

    1. Purpose of the form: Form 6 is the application a person files for inclusion in the electoral roll as a new voter. The Election Commission of India (ECI) uses it for fresh voter registrations.
    2. Statutory status: Form 6 is attached to the Registration of Electors Rules, 1960. It therefore carries the legal force of that rule and not of an administrative form.

    What did the first phase declaration ask for?

    1. Birth period brackets: The declaration used in Bihar sought to confirm the exact period of a new voter’s birth. The three brackets were birth before 1987, birth between 1987 and 2004, and birth after 2004.
    2. Applicants born before 1 July 1987: Only the applicant’s own document was needed to prove date or place of birth.
    3. Applicants born between 1 July 1987 and 2 December 2004: The applicant needed their own document along with one parent’s document, of either the father or the mother.
    4. Applicants born after 2 December 2004: The applicant needed their own document along with documents for both parents establishing date or place of birth.
    5. Parent who is not an Indian citizen: A copy of that parent’s passport and visa, valid at the time of the applicant’s birth, also had to be submitted.

    How did the declaration change in the later phases?

    1. Names in the last revision: In the second phase, a new voter filling Form 6 had to declare whether their own name or their parents’ names appeared in the last SIR.
    2. Constituency, booth and serial numbers: The applicant also had to give the assembly constituency number, the polling booth number and the serial number at which those names appeared in the electoral rolls of the last SIR.
    3. The third option on ECINet: An applicant without that information could choose a third option when filling the form online on the ECINet portal.
    4. Mandatory in practice: The field was not formally marked mandatory. An applicant could not submit the online form without completing it.
    5. Continuation into the third phase: The addition continued into the third phase of the revision. That phase was announced in May this year.

    Who has the power to change Form 6?

    1. Limits on the poll body: The ECI cannot redesign the form on its own, because the form is part of a rule it did not make.
    2. The amending authority: Only the Union government can amend the rules, acting through the Ministry of Law and Justice. The rules are made under the Representation of the People Act, 1950.

    What is the Commission’s account of the change?

    1. Approval by the full Commission: The stated position of the ECI is that adding a separate declaration form with Form 6 and with Form 8, the form used for changing particulars, was approved by the full three member Commission when the revision began in Bihar. It was ratified again in the later phases.
    2. The form itself unamended: The Commission’s account is that Form 6 was never amended and that only a declaration was added alongside it.
    3. The change in the online module: The change in the online module was made so that a person filling the form does not have to sign electronically twice.
    4. Judicial approval cited: The Commission cites a Supreme Court order of 27 May upholding the power to add the declaration form.

    Conclusion

    The declaration now asks a first time applicant for information from a revision they may never have been part of. What remains unresolved is whether an addition that operates as a condition of registration can be made without the Union government amending the rule it sits inside. The objections recorded inside the poll body put that question to the institution itself and not only to the courts. The next phase of the revision is where the answer will show.

    Back2Basics: Special Intensive Revision

    1. What it is: A Special Intensive Revision is a time bound enumeration, with Booth Level Officers visiting households in person. The routine annual exercise, the Summary Revision, carries no such door to door verification of every entry.
    2. Legal basis: Section 21 of the Representation of the People Act, 1950 authorises the poll body to carry out a special revision of the electoral roll at any time, for reasons recorded in writing.
    3. Objectives: The exercise verifies the residence of every registered voter, removes deceased, duplicate and shifted entries, and registers citizens who have newly turned 18.
    4. History: Intensive revisions have been carried out about 14 times. Eg. The exercises of 1983, 1995, 2002 and 2004, and the current cycle.

    Matching Previous Year Question

    “[2026, GS2, 10 marks] Is the right to vote a fundamental right? Discuss the position of the Election Commission of India while undertaking the revision of electoral rolls. Can it also examine the question of citizenship of voters?”

  • Bengal ‘Anti-Goonda’ Bill fails to get President’s nod due to overlap with Central legislation

    Why in the News

    The President has returned the West Bengal Public Safety and Control of Anti-Social Activities Bill, 2026 to the State for reconsideration. The Bill was introduced in the Assembly in June to curb anti social activities. The Centre’s note recorded that one clause of the Bill may create a parallel preventive detention mechanism for drug related activities. The stated objection is that this raises an issue of repugnancy under Article 254 of the Constitution. The contested point is that a State preventive detention law was stopped on duplication of a Central statute rather than on the reach of the powers it confers.

    What does the West Bengal Public Safety and Control of Anti-Social Activities Bill, 2026 do?

    1. The externment power: A District Magistrate, a Commissioner of Police or an authorised police officer not below the rank of Deputy Inspector General may order a person identified as a goonda out of a specified area, district or part of a district. The prohibition on entering or returning may run for up to one year.
    2. The reporting power: The same order may require that person to report his movements, or to report himself, at specified times to a specified authority.
    3. The trigger: The power turns on the authority’s apprehension that the person is engaging in or will engage in anti social activities. No finding on a past offence is required.
    4. The stated safeguard: The Chief Minister assured the Assembly that the legislation would not be used for political vendetta and that the preventive arrest provisions would not be misused.

    What exactly did the Centre object to?

    1. The clause in question: The Bill’s definition of goonda covers a person who commits, attempts to commit, abets, promotes, finances or facilitates any offence punishable under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The objection is confined to that single reference.
    2. The Central statute it collides with: The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS Act) already provides a preventive detention framework for persons engaged in illicit traffic in narcotic drugs and psychotropic substances. The Centre’s note describes it as a specific Central legislation on that subject.
    3. The change asked for: The note asked that the reference to NDPS Act offences in the definition clause be deleted. Deletion is the only remedy proposed, and it leaves the rest of the Bill untouched.

    Why does a State law duplicating a Central law fail at the assent stage?

    1. The rule in Article 254: Article 254(1) makes a State law void to the extent that it is repugnant to a Central law on the same Concurrent List subject. Repugnancy does not require the State law to be objectionable in itself.
    2. The saving clause: Article 254(2) saves such a State law where it has been reserved for and has received the assent of the President. Presidential assent is therefore the only route by which an inconsistent State law can stand.
    3. The assent route: Under Article 200 a Governor may assent to a State Bill, withhold assent and return it once for reconsideration, or reserve it for the President. A Bill carrying a possible conflict with Central law travels by the third route.
    4. The ground of the return: The objection is to duplication rather than to the preventive powers. A parallel State mechanism on a subject a Central Act already occupies is precisely what Article 254 is designed to prevent.

    What happens to the Bill now?

    1. Return to the Assembly: The recorded position of the State administration is that the Bill may be tabled again once the conflicting portion is changed. It would then be sent again for the assent of the President.
    2. The six month clock: Where a reserved Bill is returned, the legislature must consider it within six months. The President is under no obligation to act if the Bill reaches him a second time.
    3. No judicially enforced deadline: State of Tamil Nadu v. Governor of Tamil Nadu (2025) required a decision within three months on a Bill reserved for the President. The Supreme Court’s later advisory opinion on the Presidential Reference under Article 143 held that courts cannot impose timelines under Articles 200 and 201.

    Challenges to the West Bengal Public Safety and Control of Anti-Social Activities Bill, 2026

    1. Procedure is the only real check: Preventive detention is tested on the fairness of its procedure rather than on guilt. Eg. Article 22 was read as a self contained code in 1950, and since 1978 the procedure for any deprivation of liberty must also be just, fair and reasonable under Article 21.
      The Fix: Write the grounds, the representation route and the review reference into the statute itself rather than leaving them to executive instructions.
    2. Central statutes already occupy the field: Each class of preventive detention already has a Central Act, so a State Act reaching the same conduct invites the objection this Bill received. Eg. Smuggling and foreign exchange violations are covered by the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA).
      The Fix: Screen a State preventive detention Bill against every Central Act on the same subject before introduction rather than at the assent stage.
    3. The assent stage has no agreed discipline: A State Bill reserved for the President can wait without a stated end date, and the reform proposals on this have not been acted on. Eg. The Punchhi Commission recommended time limits for granting assent in 2010.
      The Fix: Require the Centre’s observations on a reserved Bill to be published within a fixed period, so a State learns the objection during the same session.

    Conclusion

    The objection returned to West Bengal is narrow and curable by deleting one reference. That is also what makes it revealing. A State preventive detention law was stopped on the tidiness of the statute book rather than on the reach of the powers it grants, and nothing in the return questions the externment or reporting powers themselves. The thing to watch is whether the amended Bill goes back with only the drug reference removed, or whether the Assembly uses the reconsideration to write procedural safeguards into the text.

    Back2Basics: Preventive detention

    1. Nature of the power: Detention imposed to prevent a future act rather than to punish a past one. No trial follows, and the detention rests on executive satisfaction.
    2. Safeguards that do not apply: Articles 22(1) and 22(2) do not apply, so there is no right to be produced before a Magistrate within 24 hours and no constitutional right to counsel at the initial stage.
    3. The outer limit: Article 22(4) caps detention at three months without a reference to an Advisory Board. Parliament may extend that period under Article 22(7).
    4. The Central statutes: The National Security Act, 1980 covers national security and public order, COFEPOSA covers smuggling and foreign exchange, and the PITNDPS Act covers drug trafficking.

    Matching Previous Year Question

    “[2026, GS2, 15 marks] Discuss the position of the Governor in the federal polity of India. What is the nature of his power while giving assent to a bill passed by the State Legislature? Is he bound by the aid and advice of his Council of Ministers in all his functions?”

  • Policing the line between publicity and justice

    Why in the News

    A public interest litigation before the Supreme Court of India seeking a nationwide media protocol for police media briefings has forced a question Indian policing has quietly avoided: under what law are photographs of accused persons published, should they be published, and where should that stop. Within minutes of an arrest a handcuffed face, flanked by policemen and sometimes garlanded with placards cataloguing the crime, circulates on social media, often before the accused is produced before a magistrate. The practice rests on a patchwork of regulations written before Independence, an identification statute and the general architecture of criminal procedure. The contested point is whether a practice carried forward as police habit can bear the constitutional weight of publishing an untried person’s identity.

    What is the legal basis cited for publishing an accused person’s photograph?

    1. Court proclamation of absconders: Section 84 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which replaced Section 82 of the Code of Criminal Procedure, 1973, allows courts to proclaim absconders and publish proclamations in newspapers.
    2. General powers of the investigating officer: Publication at the investigation stage rests on the investigating officer’s general powers. Every person must assist the police in preventing and investigating offences, and an investigating officer may examine anyone with relevant information.
    3. The Hue and Cry Notice: Publishing photographs on social media to solicit identification, trace absconders or find witnesses is a digital extension of the “Hue and Cry Notice” carried in State Police Manuals.
    4. Reward announcements: Rewards are typically governed by State Police Regulations framed under the Police Act, 1861, which vest sanctioning authority in a hierarchy running from the Station House Officer (SHO) to the State government.

    Why does the investigative case for publication remain strong?

    1. Crimes solved: Photographs of wanted persons and reward notices have solved crimes and brought fugitives to book years after trails went cold.
    2. Missing children recovered: The same notices have helped recover missing children.
    3. Public capacity the force lacks: An alerted public has done what a thinly stretched police force acting alone could not.
    4. Why a ban is the wrong answer: An outright ban on soliciting public assistance would be legally unwarranted and self defeating. The defect is the absence of a legal basis, not the presence of the practice.

    Where does the patchwork fail to authorise what police actually do?

    1. No enabling or prohibiting statute: No single statute permits or prohibits police from publishing photographs of accused persons.
    2. Section 84 comes too late: The proclamation process under Section 84 is triggered only after a warrant fails. It provides no basis for publicity at the investigation stage.
    3. Photographs by practice, not provision: Section 84 says nothing about photographs. Attaching one has become settled practice because it serves the purpose of securing the person’s appearance.
    4. A vocabulary from before Independence, stretched: The State Police Manual provisions predate Independence, and their language, “description of the subject”, is broad enough only to plausibly cover photographs and rewards.
    5. The Identification Act does not reach publication: The Criminal Procedure (Identification) Act, 2022 governs the taking, storage and use of measurements including photographs for identification. It says nothing about circulating them, and is often wrongly cited as enabling publication.
    6. Rewards rest on discretion, not adjudication: A reward requires no prior warrant or proclamation. It is an exercise of administrative discretion rather than a judicial precondition.

    What constitutional limits does Article 21 impose?

    1. Article 21 jurisprudence has sharpened: The protection under Article 21 has been read more strictly over time, not more loosely.
    2. Presumption of innocence: The presumption of innocence remains central to criminal justice, and a published photograph presents guilt as settled before any charge is framed.
    3. Irreversible harm: Courts increasingly recognise that broadcasting an arrested person’s face as a fait accompli of guilt can cause real and irreversible harm. The Rajasthan High Court termed such practices “institutional humiliation”.
    4. Permanence of digital circulation: Digital circulation is permanent, searchable and indifferent to a later acquittal.
    5. Categories already barred: A juvenile in conflict with the law cannot be identified except in the child’s best interest and with the permission of the Juvenile Justice Board. A sexual assault survivor’s identity is protected by law.
    6. The category left open: The unresolved case is the ordinary adult who is accused and arrested, but not yet tried.

    What distinguishes investigative necessity from publicity?

    1. The two ends of the scale: At one end publication serves legitimate investigative necessity, covering crime prevention, public order and law and order purposes. At the other end it showcases police achievements.
    2. What showcasing costs: Photographs released merely to showcase arrests serve police optics at the accused’s expense. They can prejudice public opinion before trial.
    3. The operative test: The question before any photograph is released is whether the disclosure is necessary to the investigation, or merely convenient to the narrative.

    Can publicity be permitted without conceding the presumption of innocence?

    1. United States: American law treats “wanted” notices as public record exceptions to privacy law. Agencies are trained to frame them carefully, using “alleged” and “wanted for questioning”, so the presumption of innocence survives the appeal for help.
    2. United Kingdom: British policing takes the more conservative route and withholds the identities of arrested persons altogether.
    3. What the two demonstrate: Both systems place the safeguard in a rule rather than in individual discretion. One regulates the wording of the notice and the other removes the category from publication, and neither leaves the decision to the officer making the arrest.

    Challenges to a national police media protocol

    1. Two drafts and no protocol: A manual has been drafted twice and adopted nowhere, so practice continues under the older regulations. Eg. The Bureau of Police Research and Development shared a draft manual on media briefings with the Ministry of Home Affairs (MHA) in July 2024, and in January 2026 the Supreme Court directed the States to evolve policies within three months on a manual prepared by the amicus.
      The Fix: Codify a single uniform national protocol rather than leaving each State to evolve its own policy from the same draft.
    2. Disclosure without a proportionality test: Without a stated test, a release that is necessary and a release that is convenient look identical on the file. Eg. A photograph published to solicit identification and one published to announce an arrest are both issued under the same general powers of the investigating officer.
      The Fix: Require the protocol to distinguish proportionate, need based disclosure from prejudicial publicity, and to record the ground before release.
    3. Blackout categories resting on separate statutes: The absolute bars protect only juveniles and sexual offence complainants, and each sits in its own law rather than in a police instruction. Eg. Identification of a juvenile in conflict with the law requires the Juvenile Justice Board’s permission, a step that has no counterpart for any other category.
      The Fix: Write the blackout categories into the protocol itself, so the bar reaches the officer rather than only the court.
    4. No takedown once the purpose ends: A photograph published for an investigative purpose stays online after that purpose is served, and after a discharge or an acquittal. Eg. A search against an acquitted person’s name still returns the arrest material that was circulated.
      The Fix: Require time bound review and takedown once the investigative purpose is served, or the accused is discharged or acquitted.
    5. Variation from State to State: Each State frames its own police regulations, so the same act is permitted in one State and not in another. Eg. Reward sanctioning authority under State Police Regulations runs from the Station House Officer up to the State government, and that hierarchy differs by State.
      The Fix: Apply the protocol uniformly across States, so the rule does not change with the place of arrest.

    Conclusion

    Publication of an accused person’s face is one of the few police powers in India with no statute behind it and no bar against it. The decision therefore rests where it should not, with the officer whose case the publicity also serves, and the harm falls on a person the law still treats as innocent. Two drafts of a protocol now exist and neither governs anything. The marker to watch is whether the States file the policies the Supreme Court directed, and whether those policies carry a necessity test and a takedown obligation rather than a restatement of existing practice.

    Back2Basics: Bharatiya Nagarik Suraksha Sanhita, 2023

    1. What it replaced: The BNSS is one of three central criminal laws that came into force on 1 July 2024, replacing the colonial era framework entirely. It replaces the Code of Criminal Procedure, 1973.
    2. Trial timelines: The BNSS mandates judgment within 45 days of the completion of arguments. Trials must commence within 60 days of the first hearing.
    3. Zero First Information Report codified: The BNSS codifies the Zero First Information Report (FIR) in Section 173, so an FIR must be registered even where the offence occurred outside that station’s jurisdiction.
    4. Custody limits: Total detention without a chargesheet is 60 days for an offence punishable with less than 10 years, and 90 days where the punishment is death, life or 10 years or more. Crossing that limit makes default bail an indefeasible right.

    Matching Previous Year Question

    “[2017, GS2, 15 marks] Examine the scope of Fundamental Rights in the light of the latest judgement of the Supreme Court on Right to Privacy.”

  • A nation’s song

    Why in the News

    The Ministry of Home Affairs (MHA) has issued directions and circulars in 2026 prescribing an official version of all six stanzas of Vande Mataram. The circulars mandate mass singing at public functions and place the song before the National Anthem. Parliament has passed the Prevention of Insults to National Honour (Amendment) Act, 2026 with little debate, extending the penal provision of the Prevention of Insults to National Honour Act, 1971 to the National Song. Read together, the statutory penalty and the executive circulars amount to compulsion, as a petition before the Supreme Court has argued. The contested point is whether the state’s power to decide what the National Song is extends to penalising a citizen who declines to sing it.

    What is the status of Vande Mataram as the National Song?

    1. Composition and standing: Vande Mataram was written by Bankim Chatterjee and became a song that stirred the freedom struggle. It was never adopted through any constitutional provision.
    2. Constitutional silence: The Constitution carries no mention of a “national song”. The status rests entirely on executive and political practice.
    3. The equal honour position: Jana Gana Mana was adopted as the National Anthem on 24 January 1950. India’s first President stated at the time that Vande Mataram would be “honoured equally”.
    4. Statutory protection until 2026: The Prevention of Insults to National Honour Act, 1971 protected the National Anthem alone. The National Song was brought within its protection only by the 2026 amendment.

    Why did the freedom generation confine national singing to two stanzas?

    1. The 1937 resolution: The Congress Working Committee resolved in 1937 that only the first two stanzas of Vande Mataram should be sung at national gatherings.
    2. The reason for the limit: The later stanzas invoke the motherland as Hindu deities, which places them outside what citizens of every faith can sing.
    3. The inclusive result: The two stanza version allowed citizens of all faiths to partake in the song. Renditions by artistes such as Lata Mangeshkar and A.R. Rahman carried that version into popular use.
    4. What national symbols are for: National symbols and anthems exist to strengthen the bond among citizens. A version modified to compel acceptance of a majoritarian reading defeats that purpose.

    What do the 2026 measures change?

    1. The push for six stanzas: The Union government has pushed for all six stanzas to be recited since the song’s 150th anniversary in 2025.
    2. The penal provision extended: Section 3 of the 1971 Act punishes anyone who intentionally prevents the singing of the National Anthem or disturbs an assembly engaged in such singing. The 2026 amendment extends that provision to the National Song.
    3. What the amendment does not do: The amendment by itself does not compel anyone to sing. It also does not define the National Song or fix its stanzas.
    4. Passage without scrutiny: Parliament passed the amendment with little debate, so the extension of a penal provision to a new object was not examined in the House.

    Where does compulsion arise if the Act does not command singing?

    1. The gap the circulars fill: The amendment supplies a penalty without a defined object, and the circulars supply the object. Together they make a prescribed six stanza rendition the thing the penalty protects.
    2. Mass singing as an obligation: A mandate to sing en masse at public functions converts participation from a choice into an expected act. Non participation becomes visible at the moment it occurs.
    3. Order of precedence: Placing the National Song before the National Anthem inverts the settled order and puts the contested rendition first at every official gathering.
    4. The petition’s claim: A petition before the Supreme Court argues that the combination amounts to compulsion, even though neither instrument commands singing on its own.

    What does Bijoe Emmanuel (1986) settle?

    1. The holding on singing: Bijoe Emmanuel (1986) held that no law obliges anyone to sing the National Anthem.
    2. Silence is not an offence: The judgment held that standing in respectful silence during the Anthem is no offence.
    3. Limits on executive instructions: The judgment held that executive instructions without statutory backing cannot curtail fundamental rights.
    4. The Court’s current observation: The Supreme Court has observed that the state may decide what the National Song is, but cannot penalise conscientious objectors, in line with that judgment.

    Challenges to the National Song directives

    1. “Disturbance” left undefined: Section 3 penalises disturbing an assembly engaged in singing, and nothing in it separates obstruction from silent non participation. Eg. A citizen standing in respectful silence at a mandated mass singing remains inside the very assembly the provision protects.
      The Fix: Require a positive act of obstruction for the offence and state expressly that silence cannot be read as disturbance.
    2. A definition left to circular rather than statute: The amendment does not define the National Song or fix its stanzas, so the version the penalty protects can be changed without legislative scrutiny. Eg. An official six stanza version displaced a two stanza convention that had held since 1937, without any statute being amended.
      The Fix: Set aside the executive orders and require the National Song and its stanzas to be defined by legislation.
    3. A shared symbol given a majoritarian reading: The later stanzas invoke the motherland as Hindu deities, so a compulsory full rendition asks citizens of other faiths to sing a religious affirmation. Eg. The 1937 confinement to two stanzas was adopted for exactly that reason.
      The Fix: Restore the two stanza rendition as the official version for official gatherings.
    4. Precedence reordered without a stated ground: Placing the National Song before the National Anthem lowers the Anthem’s settled primacy, and no reason accompanies the change. Eg. The Anthem’s status comes from its adoption on 24 January 1950, while the Song’s rests on practice alone.
      The Fix: Retain the National Anthem’s precedence at official functions and confine the Song to the position practice has given it.

    Conclusion

    A national symbol functions as a symbol only while participation in it is voluntary. A penalty attached to a prescribed rendition converts the symbol into a compliance test, and a compliance test measures obedience rather than solidarity. The question now before the Supreme Court is narrower than the debate around it: whether a penal provision aimed at obstruction can be read to reach a citizen who simply stays silent. What follows from the Court’s answer is whether an executive circular can define the object of a criminal penalty at all.

    Matching Previous Year Question

    “[2014, GS2, 12 marks] What do you understand by the concept “freedom of speech and expression”? Does it cover hate speech also? Why do the films in India stand on a slightly different plane from other forms of expression? Discuss.”

  • Towards recognising women farmers

    Why in the News

    Maharashtra has passed the Women Farmers’ Empowerment Bill. The law grants women independent recognition as farmers irrespective of land ownership, through a Woman Farmer Certificate. It is the first Indian State legislation to give enforceable legal form to the activity-based, land-delinked definition of ‘farmer’. The National Policy for Farmers set that definition out in 2007 and never operationalised it. A comparable central law was introduced in the Rajya Sabha in 2011 and lapsed. The contested point is that recognition as a farmer in India runs through land revenue records, and those records stand primarily in men’s names. The United Nations has named 2026 the International Year of the Woman Farmer.

    What is the Woman Farmer Certificate under the Women Farmers’ Empowerment Bill?

    1. Land-delinked definition: The Act recognises women residents engaged in agriculture for at least one agricultural season a year, irrespective of the nature of the land. It broadens the definitions of both ‘agriculture’ and ‘farmer’.
    2. Woman Farmer Certificate: The certificate is the document that confers an independent agricultural identity on a woman, drawn from what she does rather than from a title in a land record.
    3. Categories named in the Act: It explicitly recognises the landless cultivator, the landless livestock rearer, the agricultural labourer, the plantation labourer and the pastoralist.

    How far has women’s participation in agriculture outrun their recognition as farmers?

    1. Workforce size: In 2025 agriculture employed roughly 110 million women and 127 million men in rural India, on Census adjusted Periodic Labour Force Survey (PLFS) estimates, bringing the sector close to gender parity.
    2. Rate of increase: The women’s agricultural workforce has more than doubled since 2017-18.
    3. Concentration in agriculture: Nearly three-quarters of all rural women workers are now in agriculture, against less than half of men.
    4. Unpaid work: In 2025 more than 41% of female agricultural workers were unpaid, against 20% of men.
    5. Own-account work: Nearly 63% of men were own-account workers, against 39% of women.

    Why does the land record decide who counts as a farmer?

    1. Ownership held by men: Women largely work family land without owning it or appearing on the land record, because patriarchal norms keep records in men’s names.
    2. Share of holdings: Only 14% of operational agricultural land holdings, measured primarily through land records, are with women, as per the Agriculture Census 2015-16.
    3. Land record as the source of truth: Each State uses its land revenue record for administrative purposes, so the bias against women is carried forward into databases and scheme access.
    4. What exclusion costs: A woman left off the record cannot reach credit, subsidies, technology, extension services and related opportunities tied to land titles.

    What does scheme access reveal about the recognition gap?

    1. PM-KISAN coverage: Only 23% of beneficiaries of the Pradhan Mantri Kisan Samman Nidhi (PM-KISAN) are women.
    2. PM-KISAN design: The scheme pays Rs 6,000 a year in direct financial assistance to eligible landholding farmer families for agricultural expenses and household needs.
    3. Gap where women dominate the workforce: Even in States where women are more than 50% of the agriculture workforce, women are under one-third of beneficiaries in most of them.
    4. Three measures of the gap: The gap is approximated by three shares taken together, women as a share of all agriculture and allied workers in 2025, women’s operational holdings as a share of all operational holdings in 2015-16, and women as a share of eligible PM-KISAN beneficiaries in 2024.
    5. Comparability caveat: The holdings and PM-KISAN figures sit nine years apart, and PM-KISAN counts individuals per landholding family, including successor widows, while the Census counts each holding once.

    Why is the binding constraint the identification system rather than land itself?

    1. Missing instrument: A women farmers’ registry delinked from land records had been absent before this legislation, so recognition shifts from the owner of land to the person who farms.
    2. Meghalaya: Women are 70% of PM-KISAN beneficiaries there, a share that reflects matrilineal inheritance under which women are the customary landholders.
    3. Kerala: Women are 44% of beneficiaries, and collective farming through groups such as Kudumbashree provides an alternative route to participation and recognition.
    4. Odisha: The KALIA scheme has reached landless and sharecropper women without a land title as the gate.
    5. Widest gaps: In Jammu and Kashmir and Himachal Pradesh women are nearly two-thirds of the agricultural workforce but a small fraction of beneficiaries.
    6. The constraint named: Where the land record is the gatekeeper women are filtered out, and where an alternative mechanism exists their access rises substantially.

    What will turning recognition into access require?

    1. Route to registration: Implementation runs through either self-registration or identification of women farmers by the Gram Sabha, including women with no land and women with no title in their name.
    2. A new database: The Act provides for a database of women farmers, which has to be connected to existing agricultural databases.
    3. Digital integration: Linking the certificates to Agri Stack, the digital agriculture platform developed by the Union Ministry of Agriculture and Farmers Welfare, and issuing FarmerIDs to women is what carries them into the wider digital agricultural ecosystem.

    Challenges to the Woman Farmer Certificate

    1. Duplication and exclusion in the register: A second database beside existing agricultural databases can record the same woman twice or leave her out of both. Eg. States hold no common definition for identifying a woman farmer, issuing her certificate or maintaining the record.
      The Fix: Build a standardised cross-State system of definitions, certificates and databases, so one woman farmer carries one identity across schemes and platforms.
    2. Awareness as the binding step: A certificate confers status without telling its holder what the status unlocks. Eg. Registration depends on a woman either applying herself or being identified by her Gram Sabha, and a woman who knows of neither route stays uncounted.
      The Fix: Run a continuous local information campaign naming the schemes and the credit lines the certificate opens.
    3. Central eligibility still keyed to land: A State certificate does not by itself alter the eligibility test a central scheme applies. Eg. PM-KISAN pays landholding farmer families, so a landless certificate holder still fails that test.
      The Fix: Rewrite scheme eligibility around the activity-based definition of a farmer rather than around a land title.

    Conclusion

    One State has separated the identity of a farmer from the ownership of land. Access to credit and welfare still runs through databases that read titles. The unresolved question is whether scheme administrators treat an activity-based certificate as proof of farmer status, or whether a second register simply sits beside the first without opening anything. What to watch is whether other States legislate a comparable registry, and whether the Gram Sabha route reaches women who have never appeared in any agricultural record.

    Matching Previous Year Question

    “[2014, GS1, 10 marks] Discuss the various economic and socio-cultural forces that are driving increasing feminization of agriculture in India.”

  • Centre doubles validity of green clearances for ports to 20 years

    Why in the News

    The Centre has notified a relaxation in the country’s environmental clearance process, doubling the validity of clearance granted to ports and harbours to a minimum of 20 years. The notification amends the Environment Impact Assessment (EIA) Notification, 2006, which governs the environmental clearance process. Two further extensions of five years each are now available, subject to conditions. The amendment follows requests from industry and the Ministry of Ports, Shipping and Waterways to rationalise the earlier framework. The change trades the repeated re-appraisal of a coastal project against a longer settled clearance for the developer.

    What is the Environment Impact Assessment (EIA) Notification, 2006?

    1. Prior clearance requirement: New projects in specified sectors require prior environmental clearance (EC) before they may proceed.
    2. Coverage beyond new projects: Project expansion, modernisation, capacity additions and product-mix changes beyond specified thresholds also require clearance.
    3. Basis of the decision: Clearance rests on environmental impact assessments, public hearings where applicable, and final appraisal by expert committees.

    What does the amendment change for ports and harbours?

    1. Validity doubled: Environmental clearance for a port or harbour project is now valid for a minimum of 20 years.
    2. First extension: Clearance can be extended by five years beyond the 20-year period. Appraisal committees must review the adequacy of existing environmental safeguards before that extension is allowed.
    3. Second extension: A further five-year extension may be granted in “deserving cases” where the project remains non-operational.
    4. Recommending authority: The sectoral expert appraisal committee or the state-level expert appraisal committee can recommend the second extension after examination and subject to environmental safeguards.

    Why was a longer validity period sought?

    1. Ten-year ceiling: Environmental clearance for ports and harbours was valid for an initial period of ten years, extendable by a further period of one year.
    2. Fresh clearance burden: A project that had not completed that window had to seek fresh clearance from the beginning.
    3. Industry and ministry request: The notification records a request to rationalise the validity period, made by industry and by the Ministry of Ports, Shipping and Waterways.

    Challenges to the 20-year clearance validity for ports

    1. Ageing environmental baseline: A single appraisal can now govern a coastal project for two decades, so the site conditions assessed at appraisal may no longer hold when work actually proceeds. Eg. The earlier framework forced a project to return for a fresh clearance after ten years.
      The Fix: Tie each five-year extension to a fresh baseline study of the site, rather than to a review of the existing safeguards alone.
    2. No repeat public consultation: The public hearing sits before the first appraisal, so people affected later in the extended window have no statutory occasion to be heard. Eg. Under the EIA Notification, 2006 public hearings precede the expert committee’s final appraisal.
      The Fix: Attach a public compliance hearing at the project site to every extension application.
    3. Dormant projects holding clearance: The second extension is available precisely where a project has not started operating, so a coastal site stays committed with no construction on the ground. Eg. The amendment allows the further five years in “deserving cases” of non-operational projects.
      The Fix: Make that extension conditional on a dated construction schedule, with the clearance lapsing if the schedule is missed.

    Conclusion

    The validity question is now settled in favour of predictability for port developers. Environmental protection rests entirely on how appraisal committees use the extension review, since the automatic trigger that forced a coastal project back for a fresh look has been removed. The thing to watch is whether those committees record their safeguard reviews in a form the public can read.

    Matching Previous Year Question

    “[2019] Consider the following statements: The Environment Protection Act, 1986 empowers the Government of India to 1. state the requirement of public participation in the process of environmental protection, and the procedure and manner in which it is sought 2. lay down The standards for emission or discharge of environmental pollutants from various sources Which of the statements given above is/ are correct? (a) 1 only (b) 2 only (c) Both 1 and 2 (d) Neither 1 nor 2 (b)”

  • 1986 ruling holds, can’t penalise for not singing: SC at Vande Mataram hearing

    Why in the News

    The Supreme Court has said that a person who declines to recite one or all stanzas of the national song cannot be subjected to “criminal consequences”. A three-judge Bench headed by the Chief Justice of India said it will examine whether refusal to sing the Vande Mataram can carry penal consequences. The Bench was hearing a challenge by Carnatic vocalist T M Krishna to the law mandating the singing of all six stanzas. The Centre has amended Section 3 of the Prevention of Insults to National Honour Act, 1971, extending to Vande Mataram the same legal protection that Jana Gana Mana carries. The Bench reminded the Centre of Bijoe Emmanuel and Others vs State of Kerala and Others (1986). It said the law declared in that case will govern the amended Act. The contest is between an elected legislature’s power to declare what the national song is and an individual’s freedom not to sing it.

    What is the Prevention of Insults to National Honour Act, 1971?

    1. Amended Section 3: Section 3 now extends to Vande Mataram the same legal protection the Act already gave Jana Gana Mana.
    2. A new expression in the statute: The amendment introduced the expression “national song” into the Act. The Act itself does not define what a national song is.
    3. The operative guideline: The requirement to sing all six stanzas at official functions rests on an office memorandum. That memorandum is not gazetted and cites no enabling provision.
    4. Custom and usage: By custom and usage the national song has always been understood as Vande Mataram.

    What did Bijoe Emmanuel (1986) settle?

    1. The facts: Students belonging to Jehovah’s Witnesses were expelled for refusing to sing the national anthem. They had stood respectfully in silence during the anthem.
    2. The holding: The Supreme Court held that the expulsion violated their fundamental rights.
    3. Its standing today: The declaration of law in that case has not yet been questioned, the Bench said. It expects that declaration to govern the amended Act.
    4. What is not in dispute: The Bench said that what the national song is, is not in dispute before it.

    Why did the Bench not take up the secularism argument?

    1. The petition’s ground: The plea argues that the guideline on singing all six stanzas violates the constitutional principle of secularism. The last four stanzas carry explicit Hindu references.
    2. The Bench’s view: A national song expressing homage to a particular God or form of God would not perhaps impact secularism, the Bench said.
    3. The Centre’s position: The Solicitor General argued that secularism “will never be this narrow”.
    4. The question taken up instead: The Bench said the question whether a conscientious objector, meaning a person who refuses on grounds of conscience, can be subjected to penal consequences may require examination.

    What is the vagueness objection to the amended law?

    1. An undefined term in a penal statute: A penal statute cannot operate in the realm of vagueness. The Act makes conduct punishable and leaves the expression at the centre of that offence undefined.
    2. Risk of misuse: Counsel for the petitioner called the absence of a definition a serious lacuna in the Act that can be misused.
    3. A change in settled scope: The national song has been understood as two stanzas. For the first time after 80 years it is being presented as more than two.
    4. Consensus before penalty: Use of the term national requires the building of public opinion and consensus. It cannot be thrust on citizens with penal consequences attached.

    Where does the line fall between the legislature’s choice and the individual’s right?

    1. The legislature’s domain: It is for the democratically elected state to decide what the national song is, whether two stanzas or four, the Bench said.
    2. The Court’s limited remit: It is not the remit of the Court to second guess the national sentiments and aspirations associated with Vande Mataram.
    3. The individual’s protection: Nobody who feels an infraction of Article 25 and Article 26 rights would be subjected to penal consequences. The same protection extends to a conscientious objector who declines to recite one or all stanzas.
    4. Extent of penalty reserved: The extent of penal consequences requires examination, the Bench said.
    5. Scope of the hearing: The Bench declined to take note of the Solicitor General’s remark that “lawmaking cannot be as per Naxalite’s ideas”. It confined itself to the constitutional issue before it.

    Conclusion

    A statute can borrow the authority of the word national without saying in law what that word covers. That is the gap this hearing has exposed. The Court has split the question in two, leaving the choice of the national song to the elected legislature and signalling that an individual’s refusal to sing it cannot be punished. The Centre has been asked to file its counter-affidavit within two weeks, and the extent of penal consequences is what the Bench has reserved for itself to decide.

    Matching Previous Year Question

    “[2017, GS2, 15 marks] Examine the scope of Fundamental Rights in the light of the latest judgement of the Supreme Court on Right to Privacy.”

  • Reiterating the basics of criminalisation

    Why in the News

    The Supreme Court has held that the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 is “still-born” and that proceedings under it cannot survive. A two-judge Bench decided this in Shiv Pratap Singh vs. State of U.P. and Himanshu Srivastava vs. State of U.P. The Bench found that the Act never created an offence at all. Who counts as a gangster was fixed by Rules framed under the Act, so the determination was left to the “ipse dixit of the Executive”, an assertion resting on official say-so rather than on proof. The Act had governed gangsters and anti-social activities in the State for four decades. The contest is between a State’s claim to a special law against organised crime and the constitutional requirement that only a legislature may create a crime.

    What is the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986?

    1. Subject matter: The Act was the State’s dedicated special law against gangsters and anti-social activities in Uttar Pradesh.
    2. Determination of a gangster: The Act defines a gangster. Who is a gangster for the purpose of punishment is prescribed in the Rules framed under the Act.
    3. Gang chart: Chapter 3 prescribes the procedure for preparing the gang chart. This is the document through which administrative and police authorities record a person as a gangster.
    4. Section 23: Section 23 carries special provisions for trial and bail, together with the rule-making power.

    Why did the Court call the Act “still-born”?

    1. Creation of the crime: A penal law must create the crime by explicitly identifying the act made punishable. The Court applied the definition of “offence” in the General Clauses Act and concluded, “We cannot find any offence having been created.”
    2. Criminal law-making as a legislative function: Making an act or omission subject to penal consequences is “essentially a legislative function”. The Court held that this function “cannot be thrown away and left to sprout in the thicket of subordinate legislation”.
    3. Exclusion of the executive: The Rules left the determination of who a gangster is to the executive. The Court treated the exclusion of the executive from rule-making and from guilt determination as the desirable position.
    4. Punishment must follow the statute: The Court held that punishment must accord with what the penal law itself prescribes. A subordinate instrument cannot supply it.

    Why is criminal law-making reserved to the legislature?

    1. The definitional role: The role of defining crime and punishment is “assigned primarily and broadly to the legislature, secondarily and interstitially to the courts, and to no one else”. That formulation comes from Herbert L. Packer’s The Limits of the Criminal Sanction (1968).
    2. Deliberation before enactment: Enacting a criminal law through the legislature forces detailed debate and due deliberation. Subordinate legislation supplies neither.
    3. Unquestioned executive opinion: The problem arises when the opinions of the executive are accepted without question on categorisation and on punitive action.

    How does the principle of legality bar an executive-defined crime?

    1. Principle of legality: Criminalisation is rooted in the principle of legality. It requires the act and its punishment to exist in law before the conduct occurs.
    2. Two maxims: The principle draws on nullum crimen sine lege, no crime without law, and nulla poena sine lege, no punishment without law. An administrative classification satisfies neither.
    3. Bar on retrospective criminalisation: The principle also prohibits ex-post facto legislation. Conduct cannot be made punishable after it has taken place.
    4. Article 20(1): Article 20(1) creates a right against conviction except for violation of a law in force at the time of the act charged as an offence. It also bars a penalty greater than what the law in force prescribed.

    How did the Act turn a criminal trial into a formality?

    1. Status as the punishable thing: The Act punished mere status. That status was settled by administrative and police authorities rather than in court.
    2. Nothing left for the judge: Once the status is so determined, “nothing remains to be considered by the judicial officer but to punish him”, the Court held.
    3. A foregone conclusion: The Court described the end result of a trial under the Act as “a foregone conclusion, a statutory imprimatur to punish”.
    4. Culpability without reasons: Challenges in this and in earlier cases argued that executive authorities reached conclusions of culpability without verifiable evidence or reasoning.

    Can the gravity of a social menace justify an executive-defined offence?

    1. No licence for arbitrary action: However compelling or threatening the social menace, a penal enactment to curb it “cannot lead to arbitrary and capricious actions against the one, alleged with the commission of an offence”, the Court held.
    2. Loose labelling in public life: Indian public discourse applies labels such as deshdrohi and “urban naxal” at will. Precise definition of categories such as crime and offence is what keeps that habit out of statute.
    3. A reform agenda: The ruling sets out an agenda for reform of the Gangsters Act. It also restates the limits within which enforcement agencies may operate.

    Conclusion

    A State penal law can name a social danger without ever defining the act it punishes. That is what this ruling ends. The reform it invites is legislative, because the offence, its ingredients and its punishment have to sit in the statute a legislature passes rather than in rules the executive writes afterwards. The marker to watch is whether Uttar Pradesh re-enacts its special law with the offence on the face of the statute, and whether other State special laws that punish a status recorded by police are now tested on the same ground.

    Matching Previous Year Question

    “[2021] A legislation which confers on the executive or administrative authority an unguided and uncontrolled discretionary power in the matter of application of law violates which one of the following Articles of the Constitution of India? (a) Article 14 (b) Article 28 (c) Article 32 (d) Article 44 (a)”