Sarkaria Commission, Prison Reforms, Internet shutdowns, Death Penalty & Rape cases Notes UPSC

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Leg.council in states

Arguments in Favour

  • It acts as a Talent hunting chamber & as a Gateway to bring specialisation in the working of State Govt, by giving rep to intellectuals across diverse shades.
  • As 1/3 voting rights are with local bodies, SLC acts as a Safety valve to pacify the grievances of local bodies at state level.
  • With the inception Anti-Defection law, SLA is no longer in a position to check the Govt.Thus it is SLC which being independent of Govt serves as an effective check.

Arguments against SLC 

  • Back door for discredited party functionaries & an inst for offering patronage

Thus instead of being an Intellectual house, has become the “House of Celebrities”

  • Due to huge Heterogenity, the council in spirit neither serves as a revisory chamber nor as an effective brake against hasty legislation & only as an unnecessary Drain on Exchequer.
  • Recent Ruckus in Karnataka LC—DC was dragged out—shows indecency of SLC

Critical Perspective

  • There was no unanimity of opinion in C.A with regard of having second chamber in S.L.
  • Unlike RS,Legislative Councils lacks the constitutional mandate to play a substantial role in  legislative enactments.
  • It seems that SLC exists at the mercy & whims of ruling dispention, as any opposition to populist agenda of Govt leads to its abolition. Ex-AP(Jagan to abolish SLC as it blocked 3 capitals bill)

Way Forward 

  • Parl. standing committee recommended for a  National policy for creation of L.C in States.
  • 2nd ARC recommended that voting role of teachers & graduates should be done away with  and more say should be given to local bodies.

Art 356

Issues

  • H.V. Kamath termed it as a surgical operation for a mere cold— But He criticised the word ‘otherwise’ & said only god knows what ‘otherwise’ means.
  • Shibban Lal Saksena—‘we are reducing the autonomy of the states to a farce.’
  • ‘otherwise’ negates the ideals of constitutionalism by giving unli­mited powers to the Centre   
  • Its invocation more than 125 times belied  Ambedkar’s idea of it being a “Dead letter”  

Sarkaria Commission on Art 356

  • Art 356 should be used sparingly, as a matter of last resort, when all the alternatives fails to ractify the Breakdown of Constitutional machinery.
  • Art 356 should be amended to ensure that S.L.A is dissolved only after Parliamentary approvel.
  • Report of Governor should be a “Speaking Document”, containing all material facts
  • Inter-state council can be consulted before proclaimation of Art 356, to preserve the spirit of “Cooperative federalism” 

Death penalty

Argument for Abolition of death penalty 

  • Death penalty is error-ridden ( SC admitted it had erred in 25% cases ) & Judge-centric (likelihood of institutional bias)
  • Most of the civilised world abolished it. Death penalty has failed to serve as an deterrance.
  • It unfairly targets poors—Those without capital  gets capital punishment. (NLU-Delhi- 76% poors).
  • Judicial system is not properly geared to identify rarest of rare cases.
  • Due to the adoption of Adversarial legal, poors are often not well represented in courts + at times there is fallout in police investigations.
  • Micarriage of Justice is inherent part of indian criminal justice system.
  • Rarest of Rare failed to prevent arbitrary awards
  • A societal quest for “quick”, populist justice imperils the checks & balances in the legal system.
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Arguments for Retaining Death Penalty: 

  • Courts have restricted to only rarest of rare cases that shock the conscience of society(13 yr 4 executed
  • The hanging of Kasab & Yakub Memon strongly affirms India’s commitment to the protection of life & fight against terrorism.
  • Bachan Singh case— “Rarest of rare” 
  • Problem with Death penalty in india is not esential but it is incidental.Thus faith in due process, Rule of law, wisdom of courts can be the  remedy.
  • There is no harm in retaining death penalty as if it is miscarried then ultimately can be commuted by President.— safety valve.

Reports of commissions

  • J.S Verma Committee— 
  • Rigorous life impri­sonment instead of death penalty for rape
  • Repeal AFSPA
  • Criminalisation of marital rape
  • 262nd Report of LCI (2015) Abolish death penalty except in terror cases

In 2012, India upheld its stance on capital punishment by voting againt UNGA resolution that called for its global abolition.

Death Penalty & Rape cases

Death Penalty notes upsc
  • POCSO (Amendment) Act 2019 Provided for Death penalty for the rape with minors.
  • SC in Machhi Singh (1983) & Devender Pal Singh (2002) -Death penalty only in RoR cases.
  • Robin Conley in his book, Confronting the Death Penalty— Death penalty may seem just in abstract but practicality, it is less appealing.

Prison Reforms

Issues—

  • Rampant Overcrowding—NCRB’s “Prison Statistics India”(2015)— Avg occupancy rate is 114%.
  1. No segregation of serious & minor offenders
  • Delay in Trials—67% inmates in 2016 were undertrials
  • Torture & ill -treatment—Custodial deaths + Women prisoners are more vulnerable to abuse.
  • Severe staff crunch
  • Inadequate prison infra— Violation of dignity & basic living conditions—against UN’s standard Minimum Rules for Treatment of Prisoners

Reform needed—

[]Mulla Committee—All India Prison Service—with appropriate job requirements, sound training

[]Model Prison Manual 2016–To bring uniformity in laws, rules & regulations governing Prison adm 

  • Access to free legal service
  • Additional provisions for women prisoners
  • Modernization & prison computerization
  • Focus on after care services
  • Provisions for children of women prisoners
  • Inspection of Prisons, etc.

[]Training & correctional activities—

  • Involve NGOs for educating & vocational training of prisoners
  • Library facilities.
  • Recreational activities
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[]Strengthening PLVs— NALSA brought out a scheme called Para- Legal Volunteers Scheme aimed at imparting legal training to volunteers to act as intermediaries b/w common people & Legal Services Inst to remove impediments in access to justice ensure legal aid reaching all sections of people.

[]Report on ‘Women in Prisons’ by MoW&CD (2018)—

  • Access to female counsellors or psychologists
  • Separate accommodation for mothers in post-natal stage

[]Law commission—Amend bail provisions in CrPC

  • Who have completed 1/3 of max sentence for offences up to 7 yr be released on bail.
  • Those awaiting trial for offences punishable with >7 yr be bailed if had completed 1/2 of  sentences.
  • Comprehensive anti-torture legislation

[]Draft National Policy on Prison Reforms and Correctional Administration, 2007

  • Aftercare & rehabilitation services.
  • Community-based alternatives to imprisonment for offenders convicted for relatively minor offences
  • Telangana model of Prison reforms—
  • Aimed to take system from security based to a more human-centric one.
  • 24×7 Ambulances service
  • Prison staff is made a/c for every death
  • Collaboration with behavioural psychologists for collective behaviour therapy
  • Swadhar Greh scheme—For rehab of women victims including women prisoners released from jail

                  SC’s observation On Internet shutdown

  • FoSE through internet is part of Art 19(1)(a)
  • It’s Suspension for indefinite period not permissible—can only be for a reasonable duration & periodic review should be done.
  • Restrictions on internet should follow the Principles of proportionality under Art 19(2).
  1. DoP is a principle used for Judicial review in case

of adm action

Signifies that punishment should not be disproportionate to the offence committed or the nature & extent of State’s interference in exercise of a right must be proportionate to the goal it seeks to achieve.

SC On Section 144 of CrPC:

  • Cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights
  • Imposition of Sec 144 must strike a balance b/w rights of individual & concerns of the state.
  • Should be exercised in a reasonable & bona fide manner & based on material facts

Internet shutdowns

  1. India tops list of shutdowns globally— Software Freedom Law Center’s tracker— 381 shutdowns since 2012
  2. Under IT Act, CrPC, Telegraph Act, 1885 & Temporary Suspension of Telecom Services Rules 2017
  3. +ve—Based on intelligence inputs—Preventive measure used as a last resort to deal mass protests, civil unrest, so as to ensure peace + tackle issue of rumours spread
  4. -ve—makes HRs hostage to the whims of executives + An information blackout can also create hysteria, panic

UN resolution on Internet shutdown (2016)—

Condemned intentional disruption of internet access by Govt

Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules 2017

  • By Min of communications under sec 5(2) of ITA 1885–interception of msg in “interests of sovereignty & integrity of India”.
  • Empowers Govt to block transmission of msg in case of a public emergency or for public safety in any part of country.
  • Order under Rules, can be only for a temporary duration & not for an indefinite period.
  • Directions to suspend telecom services shall not be issued except by Union Home Secy & secy of a state’s home dept
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Quotes

  • Ambedkar—”Constitution is not a mere lawyer’s document; it is a vehicle of life and its spirit is always the spirit of age”.
  • Rationale for citizens’ duties can be summarised in the words of Gandhi: “The best way to find yourself is to lose yourself in the service of others.”  
  • John .F. Kennedy—“Do not ask what the country can do for you, but ask what you can do for the country” 
  • Modi– ‘We need a new KYC campaign – Know Your Constitution’
  • Ambedkar— “Working of Const does not depend wholly on its nature, but on people & the political class”
  • Indian Constitution– Ethical document that defines our values & guiding principles. 
  • “The best argument against Democracy is five minute conversation with an average voter”— Churchill.
  • “Democracy is not a state in which people act like sheep. Under democracy individual liberty of opinion and action is jealously guarded”.— Gandhi
  • Astra Taylor – Democracy May Not Exist, But We’ll Miss It When It’s Gone
  • Winston Churchill—For Representatives first came the nation, then the constituents & then the party.  
  • Indian Constitution of 1950 may be viewed
  • 1st truly transformational constitution.
  • Aimed not only to restructure the state, but also to unleash social rev by transcendent constitutional values such as L,E & F.
  • SC in ADR vs UoI—“One-sided information, disinformation, misinformation & non information, all equally create an uninformed citizenry which makes democracy a farce.