Table of Contents:
GS Paper 2:
- Anti-defection law
- Collegium System for the Appointment Judges
- Retrospective taxation by amending Income tax act
GS Paper 3:
- Parlimentary Report on Police Reforms
- One Ocean Summit
GS PAPER - 2
West Bengal Assembly Speaker Biman Banerjee has dismissed the petition filed by Leader of the Opposition Suvendu Adhikari seeking Mukul Roy’s disqualification as an MLA under the anti-defection law for switching sides after elections.
- Roy, a former BJP national vice-president, had defected to the ruling TMC in June last year.
- Roy would now continue as a BJP legislator in the House in the wake of the ruling.
What had the High Court ruled?
The high court had asked the Speaker to take a decision on the petition for Roy’s disqualification as a member of the House by October 7. In case of failure, the court said that it would take a call on the matter.
- Even the Supreme Court had expressed hope that the Speaker will take a decision on the disqualification plea soon.
Relevance: the Tenth Schedule of the Indian Constitution:
Popularly known as the anti-defection law.
- It specifies the circumstances under which changing of political parties by legislators invites action under the law.
- It was added to the Constitution by the 52nd Amendment Act.
- It includes situations in which an independent MLA, too, joins a party after the election.
The law covers three scenarios with respect to shifting of political parties by an MP or an MLA. These include:
- When a member elected on the ticket of a political party “voluntarily gives up” membership of such a party or votes in the House against the wishes of the party.
- When a legislator who has won his or her seat as an independent candidate joins a political party after the election.
In the above two cases, the legislator loses the seat in the legislature on changing (or joining) a party.
- Relates to nominated MPs. In their case, the law gives them six months to join a political party, after being nominated. If they join a party after such time, they stand to lose their seat in the House.
Matters related to disqualification:
- Under the anti-defection law, the power to decide the disqualification of an MP or MLA rests with the presiding officer of the legislature.
- The law does not specify a time frame in which such a decision has to be made.
- Last year, the Supreme Court observed that anti-defection cases should be decided by Speakers in three month’s time
However, Legislators may change their party without the risk of disqualification in certain circumstances. Exceptions:
- The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favour of the merger.
- On being elected as the presiding officer of the House, if a member, voluntarily gives up the membership of his party or rejoins it after he ceases to hold that office, he won’t be disqualified.
Loopholes in the law:
Those against say that voters elect individuals in the election and not parties and hence the Anti-Defection law is infructuous.
Can the courts intervene?
Courts have, in certain cases, intervened in the workings of a legislature.
- In 1992, a five-judge constitutional bench of the Supreme Court held that the anti-defection law proceedings before the Speaker are akin to a tribunal and, thus, can be placed under judicial review.
- In January 2020, the Supreme Court asked Parliament to amend the Constitution to strip legislative assembly speakers of their exclusive power to decide whether legislators should be disqualified or not under the anti-defection law.
- In March 2020, the Supreme Court removed Manipur minister Thounaojam Shyam kumar Singh, against whom disqualification petitions were pending before the speaker since 2017, from the state cabinet and restrained him “from entering the legislative assembly till further orders”.
Collegium System for the appointment Judges:
Why in News?
Recently, the Supreme Court Collegium has recommended appointing Justice Munishwar Nath Bhandari as Chief Justice of Madras High Court.
What is a Collegium System and How Did It Evolve?
- It is the system of appointment and transfer of judges that has evolved through judgments of the Supreme Court (SC) , and not by an Act of Parliament or by a provision of the Constitution.
- Evolution of the System:
- First Judges Case (1981):
- It declared that the “primacy” of the CJI’s (Chief Justice of India) recommendation on judicial appointments and transfers can be refused for “cogent reasons.”
- The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.
- Second Judges Case (1993):
- SC introduced the Collegium system, holding that “consultation” really meant “concurrence”.
- It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC.
- Third Judges Case (1998):
- SC on the President’s reference (Article 143) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.
- First Judges Case (1981):
Who Heads the Collegium System?
- The SC collegium is headed by the CJI (Chief Justice of India) and comprises four other senior most judges of the court.
- A HC collegium is led by its Chief Justice and four other senior most judges of that court.
- Names recommended for appointment by a HC collegium reaches the government only after approval by the CJI and the SC collegium.
- Judges of the higher judiciary are appointed only through the collegium system and the government has a role only after names have been decided by the collegium.
What are the Procedures for Judicial Appointments?
- For CJI:
- The President of India appoints the CJI and the other SC judges.
- As far as the CJI is concerned, the outgoing CJI recommends his successor.
- In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
- For SC Judges:
- For other judges of the SC, the proposal is initiated by the CJI.
- The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
- The consultees must record their opinions in writing and it should form part of the file.
- The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.
- For Chief Justice of High Courts:
- The Chief Justice of the High Court is appointed as per the policy of having Chief Justices from outside the respective States.
- The Collegium takes the call on the elevation.
- High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
- The proposal, however, is initiated by the outgoing Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
- The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.
What is Critical about the Collegium System?
- Opaqueness and a lack of transparency.
- Scope for nepotism.
- Embroilment in public controversies.
- Overlooks several talented junior judges and advocates.
What were Attempts to reform the Appointment System?
- The attempt made to replace it by a ‘National Judicial Appointments Commission’ (through Ninety-ninth Amendment Act, 2014) was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.
- Filling up of vacancies is a continuous and collaborative process involving the executive and the judiciary, and there cannot be a time frame for it. However, it is time to think of a permanent, independent body to institutionalise the process with adequate safeguards to preserve the judiciary’s independence guaranteeing judicial primacy but not judicial exclusivity.
- It should ensure independence, reflect diversity, demonstrate professional competence and integrity.
Retrospective taxation by amending Income tax act:
Why in News?
The Union Budget 2022-23 brought in some amendments to the Income Tax (IT) Act 1961 that would be effective retrospectively.
What is a Retrospective Tax?
- A retrospective tax is one that is charged for transactions in the long past. It can be a new or additional charge on transactions done in the past.
- Ideally, retrospective tax is to make adjustments when policies in the past and the present are so vastly different that tax paid before under the old policy could be said to have been less. Retrospective tax could correct that situation by charging tax under the existing policy.
- Retrospective taxation allows a nation to implement a rule to impose a tax on certain products, goods or services and deals and charge companies from a time before the date on which the law is passed.
- Countries use this form of taxation to rectify any deviations in the taxation policies that, in the past, allowed firms to take benefit from any loophole. It affects companies that had unknowingly or knowingly used the tax rules differently.
- Not only India, but many other countries like the US, UK, Australia, Netherlands, Belgium, Canada, and Italy have retrospectively taxed firms.
What are the Major Amendments in the Income Tax Act?
What is the Retrospective Change about Cess and Surcharge?
- Making a retrospective amendment to the IT Act from 2005-06, the Budget has clarified that cess and surcharge will not be allowed to be claimed as deductions in the form of expenditure, a practice that some companies and businesses were resorting to in the absence of legal clarity.
- Citing some court rulings over the years that had given benefit to taxpayers in claiming cess as expenditure and not tax, the tax department said the retrospective amendment is being done to correct the anomaly.
- This amendment will take effect retrospectively from 1st April, 2005 and will accordingly apply in relation to the assessment year 2005-06 and subsequent assessment years.
- The change is being brought from AY 2005-06 as education cess was brought in for the first time by the Finance act 2004.
- The court rulings differentiated between income tax and education cess on income tax, and in absence of a specific disallowance for ‘education cess’, courts had taken a view beneficial for taxpayers in many cases.
- In order to nullify the effect of such court rulings and to consider such rulings against the intention of the law, a clarificatory amendment has been introduced in the income tax law, providing that any surcharge or education cess on income tax shall not be allowed as business expenditure.
What is a Cess?
- Cess is a form of tax levied over and above the base tax liability of a taxpayer.
- Cess is resorted to only when there is a need to meet the particular expenditure for public welfare.
- Cess is not a permanent source of revenue for the government, and it is discontinued when the purpose of levying it is fulfilled.
- It can be levied on both indirect and direct taxes.
What is a Surcharge?
- A surcharge is an extra fee, charge, or tax that is added on to the cost of a good or service, beyond the initially quoted price.
- It is added to an existing tax and is not included in the stated price of the good or service.
- It is levied for extra services or to defray the cost of increased commodity pricing.
What are the other Amendments done Retrospectively?
- The government has also allowed exemption of the amount received for medical treatment and on account of death due to Covid -19 retrospectively from April 2020.
- Any sum of money received by an individual, from any person, in respect of any expenditure actually incurred by him on his medical treatment or treatment of any member of his family, in respect of any illness related to Covid-19 subject to such conditions, as may be notified by the Central Government in this behalf, shall not be the income of such a person.
- It has also allowed exemption for amount received by a member of the family of a deceased person, from the employer of the deceased person (without limit), or from any other person or persons with such money not exceeding Rs 10 lakh, where the cause of death of such person is illness relating to Covid-19, and the payment is received within twelve months from the date of death of such person.
- Separately, gifts and freebies to doctors shall not be treated as business expenditure under the Income-tax Act.
- This has clarified that any expense incurred in providing various benefits in violation of the provisions of Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 shall be inadmissible under law.
- This step is likely to discourage pharma companies from giving freebies to medical professionals, and claim these expenses as deductions.
What are Key changes for Questioning Sources of Funding for Companies?
- Government has made changes to the IT law, making space for questioning by the tax department to explain the source of funds at the hands of the creditor.
- A provision has been introduced stating that the source of funding for loan and borrowings for a recipient will be treated as explained only if the source of funds is also explained in the hands of the creditor.
- This could have an impact on funding of businesses, especially startups, if the creditor is not a venture capital fund, a venture capital company registered with SEBI.
- Earlier, if any company used to have bogus entries, the taxpayer would just provide details such as PAN and other financial details of the creditor and that was enough for the tax department.
- Now, it’s upon the recipient to prove that it’s the right source of income and they had the right net worth to provide this amount.
GS PAPER - 3
Parlimentary Report on Police Reforms:
Why in News?
Recently, the Parliamentary standing committee on home affairs has tabled a report on Police- training, modernisation and reforms. The report highlights the number of reforms required and challenges faced by the Police forces.
What are the Key Points of the Report?
- Addressing Women Under-representation: The report asked the Centre to advise states and Union Territories to create a road map for ensuring 33% representation of women in police while expressing anguish over their underrepresentation.
- The appointment of women in police may be done by creating additional posts rather than converting the vacant posts of men.
- Ensuring higher women representation will also help in improving the police-population ratio.
- States and union territories should assign important challenging duties to women instead of those of inconsequence. It recommended at least one all-women police station in each district.
- Managing Stress of Police Personnels: It recommended offline and online modules to help them de-stress through yoga, exercises, counseling and treatment.
- Separation of Law Enforcement & Investigation Wing: It called for the separation of investigation from law and order to maintain accountability and increase police autonomy in probing crimes.
- This will lead to specialisation and professionalism, speed up the investigation and secure the convictions.
- Virtual Trails: The panel backed virtual trials, particularly those involving high-risk groups, via video conferencing.
- It will help in dedicating less police force for escorting under-trial prisoners to courts and also save resources.
- Addressing Poor Conditions of Police: The committee expressed disappointment over the poor housing satisfaction levels among police personnel and recommended an allocation of funds for housing.
- In the 21st century India, there are police stations without telephones or proper wireless connectivity especially in many sensitive states like Arunachal Pradesh, Odisha and Punjab.
- People-friendly Policing: Policing system should be transparent, independent, accountable and people-friendly.
- Lax Implementation of Law: The committee expressed concern that even after 15 years, only 17 States have either enacted the Model Police Act, 2006, or amended the existing Act.
- The progress in police reforms has been slow.
- It recommends that the MHA (Ministry of Home Affairs) may put the information in public domain about the states that are leading and lagging in the modernization process.
- Community Policing: Community policing should be promoted, as it involves a cooperative effort between police and the communities where both can work together to solve the crime and crime-related problems.
- Border Police Training: Advise the state police and central armed police forces to train and liaison with people living in the border areas for gathering intelligence on infiltration, use of drones and drug trafficking.
- Pool of Anti-drone Technology: For drones, the panel directed the MHA to create a central pool of anti-drone technology “at the earliest” and give its access to all states and Union Territories.
- Under-Utilisation of Funds: The committee observed that the under-utilisation of funds by the states for police modernisation needs to be identified.
- It recommended that the MHA should consider constituting a committee which can visit the underperforming states and assist them to utilize the funds in a planned manner.
What is the Meaning of Police Reforms?
- Police reforms aim to transform the values, culture, policies and practices of police organizations.
- It envisages police to perform their duties with respect for democratic values, human rights and the rule of law.
- It also aims to improve how the police interact with other parts of the security sector, such as the courts and departments of corrections, or executive, parliamentary or independent authorities with management or oversight responsibilities.
- Police come under the state list of schedule 7 of the Indian constitution.
Committees/Commissions on Police Reforms
What are the Issues Concerning Police Forces?
- Colonial Legacy: The Police Act of 1861 was legislated by the British right after the revolt of 1857 to bring in efficient administration of police in the country and to prevent any future revolts.
- Accountability to the Political Executives vs Operational Freedom: The Second Administrative Reforms Commission (ARC-2007) has noted that political control has been abused in the past by the political executive to unduly influence police personnel, and have them serve personal or political interests.
- Psychological Pressure: In the Indian police force, the lower ranks of police personnel are often verbally abused by their superiors or they work in inhuman conditions.
- Public Perception: The Second ARC has noted that police-public relations is in an unsatisfactory State because people view the police as corrupt, inefficient, politically partisan and unresponsive.
- Overburdened Force: While the sanctioned police strength was 181 police per lakh persons in 2016, the actual strength was 137 police.
- This is way too low when compared with the United Nations’ recommended standard of 222 police per lakh persons.
- Constabulary Related Issues: The constabulary constitutes 86% of the State police forces and has wide-ranging responsibilities.
- Infrastructural Issues: Modern policing requires strong communication support, state-of the-art or modern weapons, and a high degree of mobility.
- However CAG audit reports of year 2015-16, have found shortages in weaponry with state police forces.
- Also, the Bureau of Police Research and Development has also noted a 30.5% deficiency in stock of required vehicles with the state forces.
What Other Reforms can be Brought?
- Modernisation of Police Forces: The Modernisation of Police Forces (MPF) scheme was initiated in 1969-70 and has undergone several revisions over the years.
- However, there is a need to fully utilize the finances sanctioned by the government.
- MPF scheme envisages:
- Procurement of modern weapons
- Mobility of police forces
- Logistics support, upgradation of police wireless, etc
- A National satellite network
- MPF scheme envisages:
- Need For Political Will: The Supreme Court in the landmark Prakash Singh case (2006) gave seven directives where considerable work in police reforms is still needed.
- However, due to the lack of political will these directives were not implemented in letter and spirit in many states.
- Revamping Criminal Justice System: Along with Police reforms, there is a need to reform the criminal justice system too. In this context, the recommendations of the Menon and Malimath Committees can be implemented. Some of the key recommendations are as follows:
- Creation of a fund to compensate victims who turn hostile from the pressure of culprits.
- Setting up separate authority at the national level to deal with crimes threatening the country’s security.
- A complete revamp of the entire criminal procedure system.
One Ocean Summit:
Why in News?
Recently, the Prime Minister addressed the high-level segment of the One Ocean Summit.
- The summit was organised by France in Brest, France in cooperation with the United nation and the World bank.
- The summit was addressed by various other Heads of State and Governments from countries like Germany, the United Kingdom, South Korea, Japan, Canada among others.
What is the Importance of Oceans?
- The ocean covers more than 70% of the surface of our planet, yet too often remains on the sidelines of major European and international events.
- The ocean is a regulator of major environmental balances, and climate in particular, a provider of resources, an important enabler of trade, and an essential link between countries and human communities.
- However, it is now seriously threatened by numerous pressures, such as the effects of climate change pollution or the overexploitation of marine resources.
- In an effort to mobilise the international community and take tangible action to mitigate such pressures on the ocean, France has decided to organise a One Planet Summit dedicated to the ocean.
What is One Ocean Summit?
- The goal of the One Ocean Summit is to raise the collective level of ambition of the international community on marine issues.
- Commitments will be made towards combating illegal fishing, decarbonising shipping and reducing plastic pollution Will also focus on efforts to improve governance of the high seas and coordinating international scientific research.
What was India’s Stand at the Summit?
- India has always been a maritime civilization. India’s ancient scriptures and literature talk about the gifts of the oceans including marine life.
- India’s security and prosperity are linked to oceans. India’s ”Indo-Pacific Oceans Initiative” contains marine resources as a key pillar.
- India supports the French initiative of a ”High Ambition Coalition on Biodiversity Beyond National Jurisdiction”.
- The coalition gathers parties which are committed, at the highest political level, to achieve an ambitious outcome of the ongoing negotiations on a Treaty of the High Seas (“the implementing agreement on Biodiversity Beyond National Jurisdiction”), under the auspices of the United Nations.
- The “BBNJ Treaty”, also known as the “Treaty of the High Seas”, is an international agreement on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, currently under negotiation at the United Nations.
- This new instrument is being developed within the framework of the United Convention on the Law of the Sea (UNCLOS), the main international agreement governing human activities at sea.
- India is committed to eliminating single-use plastic. India recently undertook a nation-wide awareness campaign to clean plastic and other waste from coastal areas.
- Three hundred thousand young people collected almost 13 tons of plastic waste.
- India will be happy to join France in launching a global initiative on single use plastics.
- Recently, the Ministry Of Environment Forest And Climate Change has notified the Plastic Waste Management Amendment Rules, 2021 which prohibit specific single-use plastic items which have “low utility and high littering potential” by 2022.
- India has also directed its Navy to contribute100 ship-days this year to cleaning plastic waste from the seas.
Are there any Other Global initiatives to Protect Oceans?
- United Nations Ocean Conference: The 2017 UN’s Ocean Conference sought to mobilise action for the conservation and sustainable use of the oceans, seas and marine resources.
- Next conference is scheduled to be held in 2022.
- Decade of Ocean Science for Sustainable Development: The UN has proclaimed a Decade of Ocean Science for Sustainable Development (2021-2030) to support efforts to reverse the cycle of decline in ocean health and gather ocean stakeholders worldwide behind a common framework that will ensure ocean science can fully support countries in creating improved conditions for sustainable development of the Ocean.
- World Oceans Day: June 8th is World Oceans Day, the United Nations day for celebrating the role of the oceans in our everyday life and inspiring action to protect the ocean and sustainably use marine resources.
- India- Norway Ocean Dialogue: In 2019, the Indian and Norwegian governments agreed to work more closely on oceans by signing a MoU and establishing the India-Norway Ocean Dialogue.
- India’s Indo-Pacific Oceans Initiative (IPOI): It is an open, non-treaty based initiative for countries to work together for cooperative and collaborative solutions to common challenges in the region.
- IPOI draws on existing regional architecture and mechanisms to focus on seven pillars: Maritime Security, Maritime Ecology, Maritime Resources, Capacity Building and Resource Sharing, Disaster Risk Reduction and Management Science, Technology and Academic Cooperation and Trade Connectivity and Maritime Transport.
- GloLitter Partnerships Project: It is launched by the International Maritime Organization (IMO) and the Food and Agriculture Organization of the UNs (FAO) and initial funding from the Government of Norway. It is aimed to prevent and reduce marine plastic litter from shipping and fisheries