Office of Profit
Article 102 and Article 191
Article 102 says that legislators would be disqualified for being a member of the legislature if they were to hold any office of profit under the government other than an office declared by the legislature by law not to disqualify its holder.
Definition of Office of Profit
‘Office of profit’ is not defined in the Constitution. However, based on Pradyut Bordoloi vs Swapan Roy (2001) case in SC, the Election Commission has noted five below tests for what constitutes an office of profit:
- Whether the government makes the appointment
- Whether government has the right to remove or dismiss the holder.
- Whether the government pays remuneration.
- What the functions of the holder are.
- Does the government exercise any control over the performance of these functions.
Further in Jaya Bacchan v. Union of India case SC defined it as “an office which is capable of yielding a profit or pecuniary gain.”
Principle behind Office of Profit
- To avoid conflict of interest. A legislator cannot exercise his functions independently of the executive of which he is a part
- To avoid politics of patronage
- To avoid making posts an alternative to ministerial berths in age of coalition politics
- It is also a drain on public funds
- Thus, it is to avoid the situation where government might give sops to legislators that might compromise the ability of the legislature to hold the executive accountable.
MPLAD and MLALAD scheme
Started by Narsimha Rao govt in 1993. The amount given is non lapsable 5 crores
- These are funds earmarked for every MP and MLA to spend in his constituency or state in case of Rajya Sabha MP.
NCRWC has suggested the dissolution of the MPLAD scheme as it makes the legislative interfere in the functions of the executive.
If the rationale of prohibiting of an Office of Profit is because legislative should not take executive functions, same logic applies for MPLAD funds.
- A report by former PAC chairman has said that the funds for MPLAD should have ideally gone to Panchayati Raj Institutions and Local Bodies.
- If the job is going to be performed by district administration, there is no logic in giving those funds to MP and MLA
- CAG report states that funds remain unspent, are given to ineligible organizations and even are swindled in corruption.
- On the other side, legislators say the money is being used to immediately solve the problems arising in their constituency. Moreover, the physical work is still being done by the bureaucracy- the permanent executive.
The Lokpal and Lokayuktas (Amendment) Bill, 2016 was passed by the parliament
Basic provisions of Lokpal
- Constitution of Lokpal at the Centre and Lokayukta in states – States to set up lokayukta within a period of 365 days from the date of commencement of the Act.
- Composition – Lokpal will consist of a chairperson and a maximum of eight members, of which 50 per cent shall be judicial members and 50 per cent of members of Lokpal shall be from SC/ST/OBCs, minorities and women.
- Selection committee – The selection of chairperson and members of Lokpal shall be through a selection committee consisting of Prime Minister, Speaker of Lok Sabha, Leader of Opposition in the Lok Sabha, Chief Justice of India or a sitting Supreme Court judge nominated by CJI, eminent jurist to be nominated by the President of India on the basis of recommendations of the first four members of the selection committee.
- Jurisdiction of lokpal – Prime Minister has been brought under the purview of the Lokpal. All entities receiving donations from foreign source in the context of FCRA in excess of Rs 10 lakh per year are brought under the jurisdiction of Lokpal. PM cannot be questioned on issues of diplomacy, security, atomic energy and space unless 2/3rd committee feels so.
Power with respect to CBI – Lokpal will have power of superintendence and direction over any investigation agency including CBI for cases referred to them by Lokpal. Transfer of officers of CBI investigating cases referred by Lokpal with the approval of Lokpal. Corruption cases relating to central govt officers to be referred to CVC
- Attachment of property – The act also incorporates provisions for attachment and confiscation of property acquired by corrupt means, even while prosecution is pending. The act lays down clear time lines for preliminary enquiry, investigation and trial.
- Inquiry and Prosecution Wing for those respective functions.
Issues with Lokpal
- Delay in appointment of Lokpal due to the lack of political will.
- Dilution of provisions through amendment – The bill passed in 2016 has done away with statutory requirement of public disclosure the assets of public servants’ spouses and dependent children.
- Non-convergence with PCA – The vesting of power of prior sanction with Lokpal has been almost nullified with amendments in prevention of corruption act which strengthen the requirement to seek government’s permission.
- Against separation of power – Lokpal, being an administrative committee (a part of the executive), amounts to judiciary being proposed for executive duties .
- Free hand to states – The determination of nature and type of lokayuktas has been completely left on the state’s discretion which leads to various problems. For example – misuse of power in appointment such as the lokayukta of UP remained in the post even after the once extended duration was also ended.
- Ambit of Lokpal – judiciary is totally excluded.
Lok Adalats are systems of Alternate Dispute Resolution mechanism to have outof-court settlement.
In pursuance of free legal aid under 39-A and report of Justice Malimath committee in 1990 that asked for ADR to reduce burden of litigation.
Lok Adalats have been given statutory status under the Legal Services Authorities Act, 1987.Under the said Act, the award (decision) made by the Lok Adalats is deemed to be a decree of a civil court and is final and binding on all parties and no appeal against such an award lies before any court of law.
- The Lok Adalats can deal with all Civil Cases, Matrimonial Disputes, Land Disputes, Partition/Property Disputes, Labour Disputes etc., and compoundable criminal Cases.
- The Lok Adalat shall not decide the matter so referred at its own instance, instead the same would be decided on the basis of the compromise or settlement between the parties to settle disputes amicably.
Drawbacks of Lok Adalat
- Not suitable for complex cases
- Challenged in higher courts
- Works on consensus and voluntary nature
- Appointments are not made in time
- Public proceedings hence lack confidentiality.
Way ahead for Lok Adalat
- Permanent and separate lok adalats with a separate department in state govt
- Allocation of special funds in state budget
- Use of civil society
- Legal literacy
National Commission for Backward Classes
Govt has proposed to give National Commission for Backward classes a constitutional status under 338B. It will have job of recommending inclusion into
OBC and tackling complaints. The bill has been passed in Lok Sabha. It contains-
- Constitutional status: Constitution of a Commission under Article 338B for socially and educationally backward classes.
One list instead of two: It stipulates only one central list for OBC, same as that for SC and ST. There would be no parallel existence of central and state OBC lists.
- Parliament to decide on inclusion/exclusion- Under Article 342A the President may specify the socially and educationally backward classes in the various states and union territories. He may do this in consultation with the Governor of the concerned state. However, a law of Parliament will be required if the list of backward classes is to be amended.
- Development: The bill has recognised the developmental needs in addition to reservations. It will hear the grievances of socially and educationally backward classes, a function which has been discharged so far by the National Commission for Scheduled Castes under the article 338.
- Definition of socially and educationally backward classes: Insertion of Clause (26C) under Article 366 to define “socially and educationally backward classes” as such backward classes deemed so under Article 342A.
Failure of 5th and 6th schedule institutions
- Lack of village councils and participation of women
- Power centres and corruption
- Financial autonomy less
- Insurgency and AFSPA leading to deep mistrust
- Participation is less, the awareness and knowledge of procedures is less.
- Lack of clarity on the role of governor
- Lack of codification of customary law
- Lack of focus on Particularly Vulnerable Tribal Groups
Issue of Special Category States
- Issue came up due to AP protesting while increased devolutions by 14th FC and end of Planning Commission has ended the need for SCS. Its more of political symbol
- Constitution doesnt mention SCS. But in 5th FYP, concept of SCS was put on to help states which are disadvantaged due to remoteness, hilly terrain or border nearness. Eg- 8 NE states, J&K, UK and Himachal
Advantages- 90% grants in Central Assistance, Special Central Assistance, Plan Assistance, AIBP, promotion of industry based on Gadgil-Mukherjee formula
- But due to discontinuance, very few externally aided projects have come, assistance plans are not implemented and AIBP funding has reduced • Raghuram Rajan Committee 2013 recommended category of Least Developed Ststes based on health, education, literacy, financial inclusion, per capita income, etc.
10% Reservation for EWS under 103rd Constitutional Amendment
Article 15 and 16 amended for unreserved categories. Income limit kept at 8 lakh
- Need for deprivation criteria apart from caste- In Ram Singh v. Union of India (2015), SC asserted that social deficiencies may exist beyond the concept of caste
- Caste issues are overshadowing class issues leading to rising discontent
- Sinho commission report in 2010 about economically weaker section in general classes said 18% are backward among general classes.
- Indira Sawhney judgment capped reservation at 50%. It had rejected EWS and said it cannot be made the sole criteria.
- Violation of basic structure
- No under-representation: The upper caste is adequately represented in public employment
- Problem with ceiling of Rs 8 lakh. Too wide
- Problem with identification of beneficiaries given that income certificates can be manipulated
- Tool of populism
- Shrinking public sector
Reservations in Promotions
- Indira Sawhney case rejected reservations in promotions, against which the article 16(4) was amended to introduce reservations in promotions. The Nagraj Case 2006 allowed it provided 3 conditions are met- sufficient empirical data is collected to prove backwardness of SC/STs, data about inadequate representation and that it doesn’t affect administrative efficiency
- The 85th constitutional amendment also upheld principle of Consequential Seniority
- Recently, in the Jarnail Singh case, a 5 judge bench allowed govt to proceed in promotions without having such a quantifiable data
- It turned down center’s plea to increase reservation in proportion to population of SC/ST and also suggested to introduce creamy layer in SC/ST
- Against- Reservation at entry point is suffice, inefficiency in domains where technical knowledge is required, merit, cornering of benefits
- Support- false notion of inefficiency, vacancies, historical baggage, lack of representation at Group A services, meritorious candidate may not be talented or efficient
Should Concurrent List be dissolved?
- Article 246 and schedule 7 talk of 3 lists
- Need for concurrent list- uniformity, some issues require finances from both center and states, background of unitary structure India has
- Issues- states have less say, 42nd amendment took away many issues like forests, education to concurrent list, infringement on domain of states, less flexibility for states to tailor laws to the local condition
- Way ahead- Sarkaria commission said center should make laws on concurrent list in consultation with states, apart from residual financial powers, rest should go to states, Interstate council should be strengthened.
Official Secrets Act, 1923
- The act was passed to ensure national secrets are protected from chiefly two acts- espionage and disclosure- by government servants and citizens in general
- It also prohibits interference with armed forces, trespassing in prohibited areas, etc as crime.
- Punishment can be up to 14 years with a fine.
- Need- threat of stealing of sensitive data, cases of Madhavi Gupta and corporate espionage, critical nature of defence data can be leaked to enemy nations
- Concerns- conflict with RTI, gagged voices, against freedom of press, power to decide whether something is secret lies with govt
- Recommendations- Law Commission says mere classification of a document as “secret” should not be a ground for prosecution.
- 2nd ARC suggested to repeal OSA,1923 and add relevant chapters in NSA with less harsh provisions.
- Cases have been filed in SC for revoking the criminal defamation law as prescribed under IPC section 499 and 500.
- The law defines defamation as anything that harms the reputation of an individual while having inherent social utility.
- Under the civil law, aggrieved can approach HC or trial court to seek civil compensation.
- For criminal defamation, the aggrived approaches the criminal court. The crime is non-cognizable and bailable.
- MHA has filed a reply saying these sections were meant to be for criminal defamation and for meeting the objective of protection of dignity under article 21.
- Mere misuse or abuse of law can never be a reason to render a provision unconstitutional rather lower judiciary must be sensitized to prevent misuse
- Defamation should remain a penal offence in India as the defamer may be too poor to compensate the victim in some cases.
- Since there is no mechanism to censor the Internet from within, online defamation could only be adequately countered by retaining defamation as a criminal offence.