Category: Critical Analysis

Election, Religion, and Indian politics

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Politics is a sideshow in the great circus of life…

Politics is derived from the Greek words ‘Polis’ which means community and ‘Poli’ meaning many. Politics can be defined as the laws, methods and practices of a group which makes decisions (i.e. a government over a community).[1]

According to Robert A Bahal, a Political scientist, Politics is a sideshow in the great circus of life. The main aim of a political system is to provide all-round growth to a society which in turn will lead to a rise in status of each individual and providing a strong foundation to the nation.[2]

Earlier in primitive society people were living brutish, nasty, and chaotic life according to the Leviathan of Thomas Hobbes. To overcome the difficulties of the circumstances they felt the need of a political system to govern themselves in some well thought-out way so that the Life of the people would be smooth, simple and easy. But today’s reality doesn’t meet with such vision and convictions of the people of that time. The Political system, are getting more complicated with every passing second in its aims and objectives and its ways to full fill the same.

Religion means a lot…

“Religion is that set of symbolic forms and acts which relates man to the ultimate conditions of his existence”

– Robert Bellah.

“Religion is a system of beliefs and practices by means of which a group of people struggles with the ultimate problems of life”

– J. Milton Yinger

“Religion” is “a system of beliefs and practices by which a group of people interpret and respond to what they feel is sacred and, usually supernatural as well (Johnstone, 2004:13).”

– Ronald Johnstone

“A religion is a unified system of beliefs and practices relative to sacred things, that is to say, things set apart and forbidden – beliefs and practices which unite into one single moral community called a Church, all those who adhere to them.” (Emile Durkhaiem . It can be modified by adding, temple mosque, Gurudwara et cetra.)

Summing up the entire definitions and the self-observation , I have come to a conclusion that the religion is set of particular practices and beliefs about some unseen natural powers whose blessing and guidance which are just alike our shadow. Religion plays a crucial role in any person’s life. The way of thinking, living and attitude towards anything have a huge influence of the religion practiced.

Hinduism, Islam, Sikh, Christianity has been historically secular…

India’s own past is far more relevant in this context, for, unlike Europe, India does not have a history of theocratic state.  As far as Hindus are concerned, there is no treatise on politics that is regarded by them as infallible. In fact, the tradition of Raja and Rishi represents a clear distinction between a spiritual and temporal role. The two roles were inter­connected but autonomous. Then why rightist people are claiming the Patriotism and Hinduism should go together. The religion is no proof of any kind of Patriotism. The Patriotism is abiding by the constitution, working for the development of the nation to lead the nation to its highest civilizations to where it belongs.

Eight hundred years of rule by the Muslim Kings in India is equally marked by its pluralistic characters. Though the king and ulema interacted, secular authority always reigned supreme. A third dimension of the Muslim polity, viz. Sufis carved out their own autonomous domain, often in defiance of both the king and the ulema. But the recent trend is ostensibly much varied from the ethos of the Islam. The fanatic followers of the religion desire to make the beliefs as the lifeline of the political system. They want the Aayat of Koran should be the law of the land. Does it really make sense? No, definitely not, It’s terribly embarrassing and nothing else. The politicians of the muslim community or the Politicians whose vote bank consists of muslim voter tries to manifest such agenda and mislead the innocent people of the nation to grind their own axe. Resultantly and ultimately the sufferer will be people not the politicians. So, the voter should cast their vote not to vote their caste.

The lesson of the Sikh history is no different. The fact that spiritual and temporal affairs were conceptualised in the Sikh tradition by two distinct terms peeri and meeri, respectively, symbolised by two swords of the gurus and two separate forums of Harmandir Sahib and Akal Takhat, clearly implied duality. Sikh religion and politics though closely related were autonomous. The autonomous character of their religious and secular leadership and institutions became more pronounced after the gurus.

Indian Constitution is Secular in its Ethos…

The term “secular” is eloquently expressed in the preamble of the constitution. And preamble is the mirror our constitution. The Supreme Court of India held that the Preamble is part of the constitution in Keshavananda Bharti case. And it was also held that the basic features of the constitution can’t be amended. Hence, any statute, legislation or any law needs to pass the test of constitutionality for its implementation or enforcement. The duty of interpretation of statute, or law rests with the judiciary. Whenever such situations come they do the same.    And the same happened with Sec123(3) of the Peoples Representation Act. .

Election laws that has been debated widely across the nation…

The Section 123 (3A) says: “The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.] 8[(3B)   The propagation of the practice or the commission of sati or its glorification by a candidate or his agent or any other person with the consent of the candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.

 For the purposes of this clause, “sati” and “glorification” in relation to sati shall have the meanings respectively assigned to them in the Commission of Sati (Prevention) Act, 1987 (3 of 1988).]” The Section 122 (b) of the Act also considers as bribery “The appeal by a candidate or his agent or by any other person with the consent of a candidates or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols…”

The Election Commission is not only to conduct elections but also to prepare the roadmap for the future reforms. A vibrant, election commission is necessary to ensure that basic structure of the Constitution is not eroded by declining politics. The attitude of Government towards developing decent conventions towards a vibrant democracy is not only playing mayhem with the democratic values but threatening to spoil the expectations of people. 

Supreme Court guidelines  

Supreme Court recently ruled that “religion, race, caste, community or language would not be allowed to play any role in the electoral process” and that election of a candidate would be declared null and void if an appeal is made to seek votes on these considerations.

The genesis of the case lies in the 1990 Assembly elections to the Maharashtra State Legislative Assembly. The appellant Abhiram Singh, a candidate of the BJP, was elected from Santa Cruz constituency. The respondent, a candidate of the Congress party came in second. It led to an election petition alleging that the appellant had appealed for votes on the basis of Hindu religion. The election petition was allowed by the Bombay High Court in 1991.Singh went to the Supreme Court in appeal. The limited question that the Court considered in its judgment today was the interpretation of Section 123(3) of the Act.

Justice Thakur noted that the Constitutional ethos forbids mixing of religions or religious consideration with the secular functions of the State and that religion remains a matter personal to the individual with which neither the State nor any other individual has anything to do. The main thrust of its politics is ‘Hindutva’. Following the SC judgment in 1995 declaring ‘Hindutva’ a way of life, the pro-Hindutva forces have exploited this judgment to an extent that has no precedent.

“An interpretation that will have the effect of removing the religion or religious considerations from the secular character of the State or state activity ought to be preferred over an interpretation which may allow such considerations to enter, effect or influence such activities,” Justice Thakur said.

Conclusion

In present scenario politics smells like rotten fish and the politicians sound like fish market. They creates ruckus over so sensitive issues, where they are needed to contemplate and find out a way to overcome the problem. Sometimes they manufacture new issues in the factory to grind their own axe. Propaganda and deceit always go together, and the Indian politicians are well versed at this.

The violence in Muzaffarnagar riot, Babri Maszid demonstration, and beef ban are the highly debatable issues but of very least importance in respect of the growth and the development of our nation. But none of our so called leaders live each other behind in spreading hatred amongst the different sections of the society professing different religion even many a times they go on provoking the people to serve their own means. In fact, members of every community need to associate with those of other communities to promote their class, professional and cultural interests through, say, organisations of workers, peasants, occupational groups, writers, artists, etc

Recently Uttar Pradesh is going to elect its new government. The politics of UP is well known for its communal colour. In this regard, the judgement of the Supreme Court is a slap on the face of such hatred spreading politicians. But we will also come to know of its implementations and the power, function and loyalty of the Election commission either to the people of India or the politicians. State elections are also due this year for Punjab, Uttarakhand, Goa and Manipur. Let’s see the new way our  dear politicians and also the new abbreviated or invented politics.

According to the social scientist Plato Societies aren’t made of sticks and stones, but of men whose individual characters, by turning the scale one way or another; determine the direction of the whole”. So, we need a free fair election, where people are not enticed on basis of religion, race, and caste rather they should be influenced by the political, economic, and industrial policies. If this had happen our country would have been all great again in all fields.

Politics and religion should not be separated in its primitive stage but in the prevailing circumstances it should be stopped to be mingled and a good step has been taken up by the SC….

[1] http://www.spaceandmotion.com/Philosophy-Politics-Globalisation.htm

[2] behallaw.com/robert-j-behal

ABOUT THE AUTHOR

picture1

KOMAL

Komal has done her schooling from Jawahar Navodaya Vidyalaya , Birauli, Samastipur, Bihar. Currently, she is pursuing BA.LLB at Chanakya National Law University, Patna. Intrinsically passionate about News paper, Books and Basketball, her interest extends to understand the intricacies of the current legal issues. She yearns to be a renowned lawyer.

Intersection of NJAC and Separation of Power

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“The basic premise of the Constitution was the Separation of Powers and a system of checks and balances because man was perceived as a fallen creature and would always yearn for more power.” – Roy Moore

The early theorist Montesquieu on the doctrine of separation of powers, said:

“When the legislative and executive powers are united in the same person, or in the same body of Magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, they execute them in a tyrannical manner. Again, there is no liberty if the judiciary power be not separated from the legislative and executive. Were it joined to the executive power, the judge might behave with violence and oppression.

There would be an end of everything, were the same man, or the same body, whether of the nobles of people, to exercise those three powers, that of exacting laws, that of executing the public resolution, and that of trying the causes of individuals.”

Brandeis J. while laying accentuation on the principle of separation of powers said that the inspiration driving the separation of powers precept is not to propel viability in the association yet rather to hinder the act of optional power. He furthermore highlights that its inspiration is not to keep up a key separation from grinding among various organs of the state by keeping them segregated yet to shield people from autocracy by technique for certain contact in light of exacerbation of strengths. It is to gap administration against itself by making unmistakable concentrations of drive so they could keep each other from undermining oppression.

The National Judicial Appointments Commission (NJAC) tried to blur this line of separation of power between legislature and judiciary. It was a body entrusted with delegating judges to the higher Judiciary in India. Article 124 of the Constitution was altered through the 99th Amendment to mirror the adjustment in the arrangement of arrangements from the collegium framework, in which an assortment of judges would be counselled by the President to designate the judges, with the judiciary’s feeling being last. The body of the NJAC incorporates as the Chief Justice of India, the two senior-most judges of the Supreme Court, the Law Minister and two “prominent people”. A sub-council was further constituted to designate the “prominent people”. The synthesis of the sub-council incorporates the Prime Minister, the Chief Justice, and the Leader of the Opposition.

A historic judgement by the Supreme Court has held the National Judicial Appointments Commission (NJAC) Act 2014 unconstitutional. Article 13 of Indian Constitution announces that all “laws” that is conflicting with or in criticism of any of the fundamental rights is invalid and void. This force of “legal survey” is given on the Supreme Court (Article 32) and the high courts (Article 226) that can announce a law unlawful and invalid. The Constitution all in all verifiably focusedon that “the Supreme Court of India is the overseer of Indian Constitution”. Governments have tried to form the NJAC in order to extend the presence of the executive in the judiciary. The Indian democracy values Separation of Power and it cannot be overruled in any circumstances. When the judiciary doesn’t interfere in choosing executive appointments then the same is expected from the executive. The Supreme Court is the custodian of the Fundamental Rights of the citizens; it needs to have full discretion on such matters.

However, there is need to bring more transparency and accountability in the collegium system. In the striking down of the Constitution’s 99th Amendment furthermore the NJAC Act by holding the same as being violative of the fundamental structure of the Constitution, the Supreme Court has viably re-established the autonomy of the higher legal. The decision has demonstrated that the NJAC can’t supersede the privilege of the higher legal to decipher the laws. This additionally re-builds up that demonstrations of the governing body, right now overpowered by the numerical quality of the decision gathering, can be considered responsible in courtrooms.

“The judiciary and the press must be allowed their inviolate space and protected from increasing disdain and intolerance of the other pillars of the Constitution.”- Anonymous

Recently, in Madras Bar Association vs Union of India (2014 (10) SCC 1), the Supreme Court quoted the following excerpt from the Privy Council decision in Hinds vs The Queen, 1976 All ER (1) 353:

   “What Parliament cannot do, consistently with the separation of powers, is to transfer from the judiciary to any executive body whose members… a discretion to determine the severity of the punishment to be inflicted upon an individual member of a class of offenders.”

The lawmaker class of the decision party depicts the judgement as oppression of un-elected over chosen. Despite the fact that they have their right to speak freely which is a principal right, it is not the route pushing ahead. Presently, the parliament ought to locate all conceivable approaches to work with the legal framework subject to the sway of legal and also parliament. In a constitution where “Equivalent insurance by law and Equal security of Law” (Article 14) is the establishing guideline, the straightforwardness in Judicial arrangements is an unquestionable requirement.

To conclude the words of Dr. A.S Anand, CJI stands true,

“…the Supreme Court is the custodian of the Indian Constitution and exercises judicial control over the acts of both legislature and the executive.”

ABOUT THE AUTHOR

prerna-deep

PRERNA DEEP

Prerna Deep is currently a first-year student at Campus Law Centre, University of Delhi.  She has completed English Honours from Miranda House, DU. Literature gave this forever bibliophile the wings to follow her heart and Law gave her the strength to believe that she too can change the world. She considers receiving an award for her essay on ‘Women and Law in India’ from Mr Ram Jethmalani a treasure. When not writing she’s probably binge-watching sitcoms.  She believes nothing describes her best than Virginia Woolf’s words:
“I have a deeply hidden and inarticulate desire for something beyond the daily life.”

Legal backing to rent a womb in India

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This article has been written by Miracline Paul Susi. Miracline Paul Susi.T is a 4th-year law student at School of Law, SASTRA University.

Surrogacy is a practice by which surrogate mother becomes pregnant and gives birth to a baby in order to give it to someone who cannot have children. While countries including Italy, Spain, Germany and France prohibit all forms of surrogacy, countries like Australia, the United Kingdom and Denmark, allow only altruistic surrogacy. Commercial gestational surrogacy, in which a woman who has no genetic link is paid to have a baby, is a growing trend in countries like India, Russia, Thailand, and Ukraine. After the first surrogate delivery in India in June 1994, India has steadily emerged as an international destination for commercial surrogacy. A study backed by the United Nations in July 2012 estimated the business at more than $400 million a year, with over 3,000 fertility clinics across India[1]. Though the ethical issues started at an early stage, the legal complications with regards to commercial surrogacy came only in the year 2008. A Japanese couple contracted an Indian woman to serve as a surrogate. But before the woman could deliver the child, the couple got divorced. The genetic father wanted the child’s custody, but Indian law barred single men from it, and Japanese law didn’t recognize surrogacy. In this landmark case the Supreme Court held that commercial surrogacy was permissible in India and the baby was ultimately granted a visa[2]. Surrogacy (Regulation) Bill 2016 proposed by the Health Ministry, banning commercial surrogacy came as a solution to this problem. The bill was cleared by the Union Cabinet on the 24th of August 2016 and is set to be introduced in the Parliament soon.

The draft bill provides for surrogacy as an option to parents who have been married for at least five years, either one of couple must have proven infertility. The age limit for the married couple ranges from 23-50 for female and 26-55 for male. Couples who already have biological or adopted children cannot commission a surrogate child. The bill clarifies the legal position of a child born of surrogacy by ensuring all legal rights as a citizen for the child. The bill bans egg donation. The surrogate mother has to be a married woman who herself has borne a child and is neither a non-resident Indian (NRI) nor a foreigner. Women can be surrogates only once and a married couple can only have one surrogate child. The couple should employ an “altruistic relative”, i.e. the surrogate mother should be a relative who is sympathetic to the situation. The bill restricts overseas Indians, foreigners, unmarried couples, homosexuals, and live-in couples from entering into a surrogacy arrangement.

Although the bill was passed with the intention of regulating the surrogacy, some of the clauses had outraged both the medical community and the general public. By allowing surrogacy for select classes of citizens the bill would violate citizens Fundamental Rights as laid down in Article 14 of the Indian Constitution. The idea of “altruistic surrogacy” expressed in the Bill greatly limits both potential surrogate mothers as well as couples wanting children.

The bill has ignored to discuss the issue of consent in detail. If a woman willingly consents to being a surrogate mother, is assured of a safe delivery; and the baby is assured of a safe home, why should she be limited to only one surrogacy? After the surrogacy industry boomed, a lot of women were dependent on the same. The issue here seems to be that the woman is “exploited” for her body. Surrogacy laws should be set out in such a way that full consent of the woman in question is assured. Here, instead of regulating the ways and policies in which a woman’s exploitation is prevented, what the bill has done is eliminate the idea entirely. The ban on egg donation in order to curb child trafficking and illegal surrogacy racket is only a blanket.  This situation cannot be resolved without censoring the entire industry[3].

Gay rights are still an evolving issue in India. While the Supreme Court is sitting on a review petition on Section 377 of the Indian Penal Code, pertaining to the status of gay rights, no clear legal stand on the issue has emerged. At this point the explicit stating of the ban of surrogacy to homosexual couples clearly shows the uncertainty of gay couple status in India.

The main issue is the question of disallowing commercial surrogacy and restricting foreigners from availing themselves of surrogacy in India. Since the inception of commercial surrogacy, a number of incidents have sparked unpleasant legal questions surrounding commercial surrogacy involving foreigners. In 2012, for example, an Australian couple who had twins by surrogacy arbitrarily rejected one while selecting the other. Such issues reveal the complexities that surround commercial surrogacy. There is need for discussing such complexities in the bill.

The draft Surrogate (Regulation) Bill seeks to comprehensively address the issue of surrogacy in India. This is indeed a step in the right direction. But the aim of bill will reach its fulfillment only when the above mentioned controversies are addressed.

[1] The Growth Of Surrogacy Industry In India And The Issues Surrounding It, 3rd October 2015, viewed at https://thelogicalindian.com/story-feed/awareness/the-growth-of-surrogacy-industry-in-india-and-the-issues-surrounding-it/

[2] Baby Manji Yamada vs Union Of India & Anr (2008) 13 SCC 518

[3] Malavika Ravi , A Critical Analysis Of The Surrogacy Regulation Bill 2016, 31 August 2016, viewed at http://feminisminindia.com/2016/08/31/critical-analysis-surrogacy-regulation-bill-2016/

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The punishing hand of the court: Apex court upholds the constitutional validity of defamation as a criminal offence

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This article has been written by Torsha Sarkar. Torsha is a third-year law student in National Law University Odisha.

In 2014, the Supreme Court of India upheld the constitutional validity of section 499 of the Indian Penal Code (IPC), whereby defamation is touted a criminal offence. This judgment was in response to the petitions filed by Subramaniam Swamy, Rahul Gandhi and Rajdeep Sardesai. Interestingly, the judgment is remembered more for its vivid, obscure linguistic constructions, and less for its legal precedence, for the obvious reasons.

This judgment was given by the Hon’ble Justice Prafulla C. Pant, and Justice Dipak Misra, who by now (and in light of the recent judgment of making it mandatory to play national anthem in movie theatres), must be one of the most government-friendly justices in the history of Apex Court judges, with the exception of Justice Bhagwati in his ADM Jabalpur judgment.

Yet again, liberalism and freedom of speech had to take a backseat in an India where dissent is increasingly being curbed and blind obedience of the authority is sought after. Historically, in Lord Macaulay’s Penal Code, section 499 was inserted as a counterpart of the English offence of libel. However, with our legislature determined to imbibe the colonial hangover in its true sense, chose to retain it even seventy years of independence. Interestingly, English libel provided truth as a comlete defence, while the Indian law has put conditions on that defence. Only when the truth is used to further public good, the defence can be invoked. Now with the discretion of deciding what public good is left on the court, one can only imagine the effectiveness of this defence.

International stance on the law of defamation.

The International Covenant on Civil and Political Rights (ICCPR), recommends that restrictions to freedom of speech be strictly necessary and proportionate. India is a party to it, and in light of the same, the fact that a private wrong like defamation entails criminal liability stands in blatant violation of ICCPR[1].

In 2014, Amnesty International also made a representation to the Law Commission of India, regarding the widespread exploitation of journalists and curbing of media freedom. Also, the opinion of United Nations Special Rapporteur on the Promotion and Protection of Freedom of Opinion and Expression, Frank La Rue becomes relevant. He coins a term called ‘judicial harassment’, whereby accused, charged under section 499, are kept for long time in custody, having an overall fettering effect on the freedom of speech and expression[2].

Many counties are recognizing the pointlessness of this particular piece of law. United Kingdom, from whom India had borrowed the law so joyously, have abolished it.

The Court’s view in Subramaniam Swamy vs. Union of India.

The judgment handed out has a vivid, obfusciating linguistic construction, and is rife with many, many loopholes. The Court rushed to hold that firstly, defamation was not merely a private wrong, but did not point out the manner in which the damage to one’s reputation by another becomes a public matter, and one that entails criminal liability.

Secondly, the Court also fixed a strict liability standard to the crime of defamation – one that has already been held unconstitutional by the 1995 judgment of R.Rajagopal vs. State of Tamil Nadu[3]. The Court also added a ‘public interest’ aspect to the restrictions to speech and expression, as given under Article 19(2). But this too, has been held unconstitutional in the case of Sakal Papers (P) Ltd. vs. Union of India[4], a judgment that went as back as 1962. However, if the judgment writing trend of Justice Dipak Misra is to be taken into account, precedents do not matter to him. So, this judgment, despite facing raging flak from law scholars, would persist in its glorious 268 pages.

[1]     Vrinda Vinayak, ‘Why The Supreme Court’s Ruling On Criminal Defamation Is An Insult To Free Speech'<http://www.huffingtonpost.in/vrinda-vinayak/why-the-supreme-courts-ruling-on-criminal-defamation-is-an-insu/> last accessed 21st December, 2016

[2]     Id

[3]     R. Rajagopal vs. State of Tamil Nadu, [1994] SCC 632

[4]     Sakal Papers (P) Ltd. vs. Union of India, [1962] SCR 3 842

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Misplaced Nationalism at the behest of the Apex court

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This article has been written by Torsha Sarkar. Torsha is a third-year law student in National Law University Odisha.

As if the year 2016 has not already been riddled with enough governmental mishaps and incidents, the Apex Court of the country decided to rush in an add its two bits of contribution to the mix. On 31st November, through the judgment of Shyam Narayan Chouskey v. Union of India, made it mandatory for movie theatres to play the national anthem before beginning of any movie screening, and also made it mandatory for the audience to stand up while the anthem is being played. What’s more, the Court also turned directors, and asked the national flag to be displayed in the screen while the anthem is being played, and the theatres to be closed from outside while the anthem is being played.

This judgment is a glaring departure of the progressive judgment of Bijoe Emmanuel v. State of Kerala[1], where three children belonging to the faith of Jehovah’s Witness were expelled from school for refusal of singing of the National Anthem. The reason of such refusal was religious, and upon expulsion, the parents of these children filed a Writ Petition claiming infringement of their Fundamental Rights.

Supreme Court, through Justice Chinappa Reddy observed that, firstly ‘it will not be right to say that disrespect is shown by not joining in the singing’[2]. This statement serves as a pertinent point in the current discussion. Also, the Court brought up the fact that the Parliament had indeed legislated to this regard, enacting The Prevention of Insults to National Honour Act. Section 3 of the Act mandates that whoever prevents intentionally the singing of the national anthem shall be punished.

In the end, Justice Chinappa Reddy held that, indeed the expulsion of those three children was a irrational move, and as long as a person does not intentionally prevent somebody else from singing the national anthem, nobody can be charged with any criminal act.

The postition of the law prior to Shyam Narayan Chouskey.

Sadly, however, this dictate has rarely being followed, as is with our country. In mid – 2014, M Salman, a resident of Thiruvananthapuram was arrested because of his and his friend’s behaviour in a state-owned movie theatre. Reportedly, they did not stand up during the time when the national anthem was being played, and Salman was also allegedly seen ‘hooting’. Salman was charged for sedition under section 124A of the Indian Penal Code, as well as under section 66A of the IT Act, for posting derogatory comments about the national flag in Facebook.

The District Court convicted him under these charges, declaring that the offence was ‘much more serious than murder’. For a bail from High Court, Salman had to pay Rs. 2 lakhs as surety, and also was made to appear in front of the Investigation Officer twice a week[3].

Legality of Shyam Narayan Chouskey.

At the forefront it should be mentioned that there is no law that was being enforced by Justice Deepak Misra, when he gave out this judgment. There was no Fundamental Right of anybody being violated by not playing the national anthem in the theatre. Rather, the Court took it upon itself to go about enforcing a Fundamental Duty of the citizens, to foster a spirit of nationalism and whatnot.

The Court issued several guidelines for the government and movie theatre owners to follow. The first direction is “there shall be no commercial exploitation to give financial advantage or any kind of benefit”.The next direction is also somewhat related to the first one. The Court directed that no film, drama or any other visual representation can have the national anthem as a part of its show. Taken the two directions together, and based on the fact that it was Justice Dipak Misra who delivered the judgment, it is clear that the honourable judge is still clearly sore over the fact that the Supreme Court had overturned his previous judgment whereby he had banned the movie Kabhi Khushi Kabhi Gham from playing the national anthem in its show[4].

The next direction is the one generating so much debate fuel. By this direction, the Court makes it mandatory that at the beginning of every screening of movies in a movie theatre, the national anthem has to be played, and all citizens have to mandatorily stand up for it. Interestingly, the Court provides no procedure to implement this direction, neither does it provide any sanction for disobeying this order. Perhaps, the Court has faith in the overzealous nationalist sect of the population to set this straight. Moreover, a follow up news report shows that 20 people have been already arrested for failing to observed the direction, and released on bail. They had been charged under Prevention to National Honour Act, 1971, and could face upto three years of imprisonment[5].

The last direction makes it mandatory on the movie theatre authorities to have the doors of the theatre latched from outside while the national anthem is being played, so that nobody can get out. Precedents be damned, the honourable judges decided to ignore the previous judgment of the Apex Court, which had very categorically stated that under no circumstances can the theatre be closed from outside[6]. But when ‘constitutional patriotism’ is at stake, even a fire, or any other disaster should not impede our nationalistic pride.

[1]     Bijoe Emmanuel v. State of Kerala, [1986] 3 SCR 518

[2]     ibid

[3]     Saurav Dutta, ‘Are we legally bound to stand during the National Anthem?'<http://www.caravanmagazine.in/vantage/are-we-legally-bound-stand-during-national-anthem&gt; last accessed 11th October 2016

[4]     Alok Prasanna Kumar, ‘Supreme Court’s National Anthem order mocks judicial process, Constitution'<http://www.firstpost.com/india/supreme-courts-national-anthem-order-mocks-judicial-process-constitution-3134204.html&gt; last accessed 16th October 2016

[5]     Raija Susan Panicker, ’20 Arrested In 48 Hours For Failing To Stand For Anthem In Cinemas'<http://www.ndtv.com/india-news/20-arrested-in-48-hours-for-failing-to-stand-for-anthem-in-cinemas-1637378&gt; last accessed 16th December, 2016

[6]     Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy, [2011] 16 (Addl.) SCR 1

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Status of Lokayukta Act in India

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This article has been written by Deepseng Shyam. Deepseng is currently a student in NLU Assam.

The term Lokayukta is synonymous of “Ombudsman” which is a Swedish term. Lockayukta Act is an anti-corruption act by the Indian Parliament. Its objective is to provide for the establishment of the institution of Lokpal at the centre and Lokayukta to inquire into the activities of corruption against certain public functionaries[1].

By the Act of 2013 it was left upon the discretion of the state that if it want to make its own Lokayukta act for the appointment of Lokayukta. Maharastra was the first state that brought Lokayukta Act in real existence. There was a time when a corrupt person was not considered a desirable person in a society. But today we are at a stage that corruption is not only taken for granted but also people with money are well respected in a society. Corruption is the root cause of poor governance in India.  In the recent times exposure and disclosure of financial scams have highlighted the extent of corruption that is prevalent all across India and corruption can only be fought or cured with a co-ordinate effort. Therefore, there is a huge cry going on throughout the country in order to eliminate corruption from the entire political system[2].

It is necessary to establish a Lokpal both at the central level and a Lokayukta at the state level. Both of them will address the inadequacies of the current anti-corruption systems and will have the power to investigate and prosecute cases of corruption. Indian political system is considered to be one of the most corrupt systems throughout the world. In 2015, India was ranked 76th out of the 168 countries in Transparency International’s Corruption Perceptions Index, which if compared to other developed states for example United States stands at 17th whereas United Kingdom stands at 12th, Germany at 10th etc India stands pretty low[3]. For a country like India who strives to achieve a “developed state” status it is extremely necessary to get rid of corruption from the system as soon as possible.

Lokayukta is designed to work on behalf of the citizens and it will prevent their interest from the abuse by public office both at the central and the state level. Lokayukta will be an independent body where neither the politicians nor the bureaucrats will have any say or interference in their functioning. The citizens will have the right to file complaints in the High Court as well as in the Supreme Court in case they are not satisfied with the working of any government official and also the citizens will have the right to participate in the law making process. In other words, there will be a system of referendum in our country. The establishment of a Lokpal and Lokayukta will work as an effective grievance redressal system for the public which is essential in a corruption ridden country like India.

The Need for Lokayukta

The need for Lokpal at the centre and Lokayukta in states is justified in this democratic framework. After all, public also wants that their problems should be looked after and it cannot be possible without these two separate agencies to function. It will also instill confidence among the in the administrative bodies and also, it will drive out the corrupt officials from their chambers which they might have obtained through numerous illegitimate ways.

It is necessary to drive out those political dignitaries who are working for the general good just for name sake. This system will prove to be an effective weapon to drive out the corrupt bureaucrats and political personnel. This system is designed to keep a track and check on the political personnel to prevent from any sort of corruption to take place and in case they are found to be corrupt they will be driven out.

Currently, there are many anti-corruption agencies which deal with corruption cases but they are ineffective in their functioning due to many pending cases before them which are time consuming and it leads to other important cases being kept on hold. This problem can be solved if there happens to be a separate and independent agency that would deal specifically with corruption[4].

Current Status of Lokayukta Act in India

In most of the states of India Lokayukta Act has been successfully enacted and working, though there are many states in which the act has not been enacted. Those states have their own reason for the non-enactment of Lokayukta act. The name of states, that has enacted lokayukta act are as mentioned:

Lokayukta/lokpal/lokayog Acts in Indian States

  • Andhra Pradesh
  • Assam
  • Bihar
  • Chhattisgarh (ordinance)
  • Delhi
  • Goa
  • Gujarat
  • Haryana
  • Himachal Pradesh
  • Jharkhand
  • Karnataka
  • Kerala
  • Madhya Pradesh
  • Maharastra
  • Lokpal, Orissa
  • Lokpal Punjab
  • Lokpal, Rajasthan
  • Uttarakhand- adopted from Uttar Pradesh
  • Uttar Pradesh

And there are no Lokayukta in

  • Jammu and Kashmir
  • Manipur
  • Meghalaya
  • Mizoram
  • Nagaland
  • Sikkim
  • Tamil Nadu
  • West Bengal

In July 2016, the LokSabha approved an amendment to the Lokpal and Lokayukta Act, 2013. Some of the key provisions of the amendment are given below[5]:

  • Enable the leader of the single largest opposition party in the Lok Sabha in the absence of a recognised Leader of Opposition to be a member of the selection committee that would select the ombudsman.
  • Amends section 44 of parent Act that deals with provision of furnishing of details of assets and liabilities of public servants within 30 days of joining the government service.
  • The amendment has removed the period of 30 days. Now the public servants will make declaration of their assets and liabilities in the form and manner as prescribed by government.
  • Gives extension of the time given to public servants and trustees and board members of Non-Governmental Organisations (NGOs) to declare their assets and those of their spouses.
  • In this case public servants and trustees and board members of NGOs must be receiving government funds of more than Rs. 1 crore or foreign funding of more than Rs. 10 lakh.

Conclusion

The role of Lokayukta in combating corruption is a very important task. The Lokayukta should be made the nodal agency for receiving all the corruption complaints. The Lokayukta should be accorded jurisdiction over state-level probe agencies. Bureaucracy should be brought under the ambit of lokayuktas and should be accorded power of search and seizure and power to initiate contempt proceedings. The states should provide administrative and financial autonomy and should bring Non-Governmental Organisations funded by the government under Lokayukta’s jurisdiction

[1] “Lokpal Bill tabled in Rajya Sabha, din blocks debate“. Business Standard India. 13 December 2013.

[2]Prevention of Corruption Act, 1947 was amended and consolidated by the Prevention of Corruption Act, 1988.

[3] e.V., Transparency International. “How corrupt is your country?”.

[4] Jan Lokpal Bill version 1.8, available on http://www.annahazare.org/

[5] Source: http://currentaffairs.gktoday.in/lok-sabha-passes-lokpal-lokayukta-amendment-bill-2016-07201634730.html

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