FEBRUARY CA : LAW OPTIONAL UPSC MAINS : 2017 AND 2018 : PART 1

FUNDAMENTAL RIGHTS :

  1. DUBIOUS TACTICS OF PASSING “ORDINARY BILL” AS “MONEY BILL” – A CRITICAL ANALYSIS.

  2. RIGHTS OF TRIBAL UNDER INDIAN CONSTITUTION V. FORCED DISPLACEMENT AND EMINENT DOMAIN

  3. VIOLATIONS OF RIGHTS OF MINORITIES

  4. ART.29 V. ART. 21 : JALLIKATTU ISSUE

IN-DEPTH : CONSTITUTIONAL LAW : DUBIOUS TACTICS OF PASSING “ORDINARY BILL” AS “MONEY BILL” – A CRITICAL ANALYSIS.

ISSUES : MONEY BILL, AADHAR ACT, RIGHT TO PRIVACY

BACKGROUND :

  1. Aadhaar was conceived as a scheme to provide to every Indian a unique identity number, with a purported view to enabling a fair and equitable distribution of benefits and subsidies. As it lacked legislative sanction, Aadhar act was passed.

  2. This bill was opposed by opposition parties (particulary in Rajya Sabha) + parliamentary standing committee = as it violates privacy and protection of data security.

  3. NOW : Aadhaar (Targeted Delivery of Financial & Other Subsidies, Benefits & Services) Act, 2016 — or the Aadhaar Act = validity is being challenged in Supreme Court.

  4. WHY? It was passed as “money bill” + violates right to privacy.

SO WHAT? Money bill can be passed by securing a simple majority in the Lok Sabha while rendering redundant any opposition to the legislation in the Upper House of Parliament. This kind of classification of “ordinary bill” as “money bill” in complete disregard of the Rajya Sabha’s protestations is infringes the Constitution’s mandates.

MANIPULATION : The legislative manoeuvres, which took the form of depicting a normal Bill as a money Bill undermined the prestige and role of the Rajya Sabha, which is the embodiment of the States in the Central legislature since its members are elected by the State legislatures. The scheme of Article 79 and 81 is to ensure the functioning of the two Houses, namely the Council of States to particularly safeguard the interests of various States and the House of People. Both Houses represent the people.

The present Bill was, in effect, an ordinary law creating a substantive legislative platform for the Aadhaar scheme and introduced for the first time offences and penalties by way of imprisonment of up to three years as well as a fine.

SO WHAT IS A MONEY BILL? In any parliamentary system, a money Bill is one that entails withdrawing, paying and appropriating finances from the consolidated funds of a country. In India, the defining provision for the money Bill is Article 110 of the Constitution. Article 110 states that if a Bill contains anything beyond financial dealings relating to the consolidated funds of India, then it has to be a normal Bill.

A money bill is defined by Article 110 of the Constitution, as a draft law that contains only provisions that deal with all or any of the matters listed therein. These comprise a set of seven features, broadly including items such as the imposition or regulation of a tax; the regulation of the borrowing of money by the Government of India; the withdrawal of money from the Consolidated Fund of India; and so forth.

  • IF ONLY ONE FEATURE = NOT A MONEY BILL: In the event a proposed legislation contains other features, ones that are not merely incidental to the items specifically outlined, such a draft law cannot be classified as a money bill.

  • IN CASE OF DISPUTE, SPEAKER DECISION IS FINAL : Article 110 further clarifies that in cases where a dispute arises over whether a bill is a money bill or not, the Lok Sabha Speaker’s decision on the issue shall be considered final.

Article 110 (3) lays down that “if any question arises whether a Bill is a Money Bill or not, the decision of the Speaker of the House of the People thereon shall be final”.

However, there are several instances in which Parliament’s decisions have been subjected to judicial review. These include decisions made by speakers under the anti-defection law.

GOVERNMENT PUTS 2 ARGUMENTS:

  1. To classify a draft legislation as a money bill by the speaker is not subject to judicial review.

  2. The Aadhaar Bill fulfilled all the constitutional requirements of a money bill.

1st argument of Government :

  • Mohd. Saeed Siddiqui v. State of UP (2014). Here, a three-judge bench had ruled, in the context of State legislatures, that a Speaker’s decision to classify a draft statute as a money bill, was not judicially reviewable, even if the classification was incorrect. This is because that this question constituted nothing more than a mere procedural irregularity.

  • It has the effect of negating altogether the Rajya Sabha’s legislative role, making, in the process, a mockery of our democracy. It is imperative, therefore, that the court refers the present controversy to a larger bench, with a view to overruling Siddiqui.

EARLIER : Ram Pal vs. Hon’ble Speaker Lok Sabha and Others (2007) 3 SCC 184, it has been held that the proceedings which may be tainted on account of substantive or gross irregularity or unconstitutionality are can be subject to judicial scrutiny.

2nd argument of the government : Ordinarily, a draft legislation is classified as a money bill when it provides for funds to be made available to the executive to carry out specific tasks. In the case of the Aadhaar Act, such provisions are manifestly absent.

Aadhaar has brought out to plain sight the worryingly totalitarian impulses of our state. The government has argued, with some force, that Indian citizens possess no fundamental right to privacy.

Right to privacy :

  • Privacy is important not merely because it advances the cause of equality and freedom but also because it is, in and of itself, a treasurable value.

  • A failure to protect privacy adequately can have disastrous consequences that affect our abilities to determine for ourselves how we want to live our lives.

  • And the Aadhaar Act hits at the core of this value. It permits the creation of a database of not only biometric information but also various other private data, without so much as bothering about safeguards that need to be installed to ensure their security. We scarcely need to stretch our imaginations to wonder what the government — and other agencies to which this information can be shared without any regulatory checks — can do with all this material.

ISSUE 2 : RIGHTS OF TRIBAL UNDER INDIAN CONSTITUTION V. FORCED DISPLACEMENT AND EMINENT DOMAIN

ISSUE : Andhra Pradesh failed to supply bauxite to Ras Al Khaimah Investment Authority (RAKIA), an Emirati investor as this agreement was cancelled, allegedly due to the concerns of the tribal population in those areas. Similar thing happened between Canada-Peru Free Trade Agreement.

These cases present an opportunity to evaluate the impact of the obligations of the host states under BITs on the rights of the tribal people.

UNDER CONSTITUTION OF INDIA :

DEFINITION OF ST : The Constitution of India does not define Scheduled Tribes as such. However, Article 366 (25) refers to Scheduled Tribes as, such tribes or tribal communities or groups as are deemed under Article 342 of the Constitution. According to Article 342 of the Constitution, the Scheduled Tribes are the tribes or tribal communities that have been declared as such by the President through a public notification.

SAFEGUARDS AVAILABLE TO THEM :

INTERNATIONAL LAW:

  1. UNDRIP[1] : Right against forcible displacement and relocation from their lands or territories without free, prior and informed consent.

  2. ILO CONVENTION[2] : ““right to land and natural resources and to define their own priorities for development”+ “respect for the cultures and ways of life of indigenous peoples”.

INDIA:

  1. 5TH + 6TH SCHEDULE OF COI

  2. SC : Samatha v. State of Andhra Pradesh & Ors (1997) judgment where the Supreme Court declared that the transfer of tribal land to private parties for mining was null and void under the Fifth Schedule.

  3. Recognition of Forest Rights Act, 2006 which protects the individual and community rights of tribal people in forest areas and their right to free and prior informed consent in event of their displacement and resettlement.

PRIVATE INVESTMENT V. TRIBAL RIGHTS :

  1. While the legislation for the protection of the rights of tribal people are in place, they are regularly flouted as has been highlighted by the Xaxa Committee report of 2014.

“Instead of ensuring that tribals are not ousted from the land to which they are historically and culturally connected, the state becomes more concerned about fulfilling contractual obligations towards the private investor”

  1. For economic development, states invite investments not only from domestic investors but also from foreign players whose interests are not only protected under domestic laws but also under the BITs.

PURPOSE OF BITs “: The purpose of BITs is to give protection to foreign investors while imposing certain obligations on the host state.

For instance, if a development project involving a foreign investor in tribal areas leading to acquisition of tribal land is met with protest, there may be two possible scenarios.

One, the State government due to socio-legal and political pressures may yield to the demand of the tribal people to the detriment of the foreign investor, which is what has happened in the case of RAKIA.

Two, assuming that the government continues with the project, the judiciary may order the cancellation of permits given to the foreign investor, which is what happened in the case of Vedanta in 2013 (Orissa Mining Corporation Ltd v. MoEF and Ors).

UPDATE ON EMINENT DOMAIN :

  1. The Bhangar violence in West Bengal recalls yet again the intensity of conflicts over the acquisition of land for infrastructure projects.

  2. Infrastructure projects are initiated for the “greater common good”, but the people dispossessed by them of their land, livelihood, and environment rarely benefit from all their goodness.

  3. ISSUES : Inadequate compensation of security of land, livelihoods, socio-cultural lifeworlds + the loss of environment and biodiversity.

  4. The struggles of the Narmada Bachao Andolan (NBA) in the 1980s against the Sardar Sarovar Project (SSP) : The water that was promised to peasants in Gujarat by the construction of the SSP is now to be officially diverted to supply real estate and infrastructure projects.

  5. The agitations over Special Economic Zones = Jagatsinghpur, Odisha ; Nandigram, Mangaluru, Maharashtra and Goa.

UNANSWERED QUESTIONS :

Who pays for the losses of life, livelihood, peace and well-being of the local residents during months and years, sometimes decades, of agitation?

What of the loss to the exchequer, and ultimately the Indian public, for all the effort made to suppress agitations and democratic principles by the state’s sovereign assertions over the greater common good?

Where does the state source its sovereign power over citizens in a democracy?

Eminent domain is a colonial doctrine imported by the colonial government to India and retained by the independent Indian state to institute capitalist development — the sine qua non of pre- and post-Independence development in India. Who is the ‘insider’ occupying the sovereign powers of the state over citizens?

VIOLATIONS OF RIGHTS OF MINORITIES :

India rejected criticism from the U.S. Commission on International Religious Freedom (USCIRF) that religious minorities in the country continued to face vigilantism and constitutional challenges. At the weekly briefing, External Affairs Ministry spokesperson Vikas Swarup said the USCIRF had no locus standi to assess religious freedom in India.

In the report titled “Constitutional and Legal Challenges Faced by Religious Minorities in India” made available online, the USCIRF cited the killing of Mohammed Akhlaq in September 2015 over beef eating, and said such violence, often inflicted by Hindu right-wing groups, had curtailed religious freedom for minority groups in India. It further criticised the Indian Constitution for giving favourable treatment to the majority Hindu community and curtailing the unique identity of the minority groups.

ART.29 V. ART. 21 : JALLIKATTU ISSUE

  1. Justice Misra of Supreme Court : “we are now governed by the concept of rule of law. Something like this(road march in tamilnadu against Jallikattu) does not happen suddenly...should not happen. Mr. Parasaran, please tell your State Executive, law and order has primacy in a civilised society. When the Supreme Court, the final arbiter of the Constitution, is seized of the matter, there should be complete obeisance and compliance. We have said this in the Cauvery water dispute matter.”

  2. “People were saying amend the law. The legislature cannot turn a deaf ear to public wishes,” Mr. Dwivedi submitted.

  3. Attorney-General Mukul Rohatgi : Article 29 (1) of the Constitution which mandates that citizens have the right to take measures to “conserve their culture.”

COURT RESPONSE : “Then we have to decide on whether jallikattu comes within the ambit of ‘culture’ meant in Article 29 (1) and whether this kind of a sport or event or activity is safe… Conservation of a culture should not involve inflicting unnecessary pain [on] or suffering to animals,” Justice Misra responded. IF YOU BELIEVE THIS HELPS YOUR PREPARATION. GIVE US A REVIEW. PART II WILL BE PUBLISHED ON 21.03.2017

[1] The United Nations Declaration on the Rights of Indigenous People (UNDRIP), adopted in 2007.

[2] International Labour Organisation (ILO) Convention concerning Indigenous and Tribal Peoples, 1989

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