1. States can enact laws on uniform civil code, Law Minister tells Rajya Sabha

The States are empowered to enact personal laws that decide issues such as succession, marriage and divorce, in their endeavour to secure a uniform civil code (UCC), Law Minister Kiren Rijiju informed the Rajya Sabha on Thursday.

The Minister made these remarks in a written reply to a question posed by Communist Party of India (Marxist) member John Brittas, asking whether the Centre was aware of the States formulating their own laws with respect to the uniform civil code.

“Yes, sir,” said Mr. Rijiju, “Article 44 of the Constitution provides that the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”

Mr. Rijiju added, “Personal laws such as intestacy and succession, wills, joint family and partition, marriage and divorce, relate to Entry 5 of List-III-Concurrent List of the Seventh Schedule to the Constitution, and hence, the States are also empowered to legislate upon them.”

The Law Minister’s comments assume significance given the backdrop of several Bharatiya Janata Party-ruled States announcing their intention to implement the UCC.

Taking the lead

While Uttarakhand was the first to set up a panel to explore the possibility of a common civil code, the Gujarat government also announced its intention of doing so just ahead of its Assembly election.

The party had made the implementation of the UCC a part of its Himachal Pradesh manifesto as well, although it lost the Assembly election. Earlier this month, Madhya Pradesh Chief Minister Shivraj Singh Chouhan said a committee would be constituted to implement the UCC.

On December 9, BJP MP Kirodi Lal Meena moved a Private Member’s Bill on the UCC amid strong Opposition protests. The Bill was eventually introduced, with 63 members voting in favour of the motion while 23 members opposed it. Defending Mr. Meena, Leader of the Rajya Sabha Piyush Goyal had said, “It is the legitimate right of a member to raise an issue which is under the directive principles of the Constitution. Let this subject be debated.”

Uniform Civil Code:                

• It provides for one law for the entire country, applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption etc.
• Article 44: It lays down that the state shall endeavor to secure a UCC for the citizens throughout the territory of India.

Constituent Assembly about the UCC:

• Sub-committee on fundamental rights (headed by Sardar Vallabhbhai Patel): It decided that securing a UCC was not within the scope of fundamental rights.
• Member Naziruddin Ahmad from Bengal: UCC would come in the way of Article 19 of the draft Constitution-now Article 25(which guarantees the right to freedom of religion subject to public order, morality, and health).
• Member K.M. Munshi: UCC will promote the unity of the nation and equality for women.
• B.R. Ambedkar: He stated that the Article “merely” proposed that the state shall endeavor to secure a UCC, which means it would not impose it on all citizens.

Arguments in favour of UCC:

• Uniformity in cases: India does have uniformity in most criminal and civil matters like the Criminal Procedure Code, Civil Procedure Code etc
• Gender Justice: If a UCC is enacted, all personal laws will cease to exist. It will do away with gender biases in existing laws.
• Secularism: A secular nation needs a common law for all citizens rather than differentiated rules based on religious practices.
• Various communities in India: Example: All Hindus are not governed by a homogenous personal law even after the enactment of the Hindu Code Bill.
• Shariat Act: There is no uniform applicability when it comes to the Muslim personal law or the Shariat Act 1937.
• Hindu Marriage Act of 1955:It prohibits marriages amongst close relatives but they are considered auspicious in the south of India.
• Hindu Succession Act of 1956: Wives are not coparceners(a person who shares equally with others in the inheritance of an undivided estate) nor do they have an equal share in inheritance.

Arguments against UCC:

• Plurality in already codified civil and criminal laws: So concept of ‘one nation, one law’ cannot be applied to diverse personal laws of various communities.
• Constitutional law experts: Framers did not intend total uniformity.
  • Example: Personal laws were placed in Concurrent List(power to legislate being given to Parliament and State Assemblies).
• Customary laws: Many tribal groups in the country, regardless of their religion, follow their own customary laws.
• Communal Politics: The demand for a uniform civil code is considered to be framed in the context of communal politics.
• Article 25: It seeks to preserve the freedom to practice and propagate any religion.

Law Commission about UCC:

• Unified nation did not necessarily need “uniformity: Secularism could not contradict the plurality prevalent in the country.
• UCC: It is neither necessary nor desirable at this stage.

Recommendation by Law Commission:

• Discriminatory practices, prejudices and stereotypes within a particular religion and its personal laws should be studied and amended.
• Fixing the marriageable age for boys and girls at 18 years: So that they are married as equals
• Simplifying the divorce procedure: Making adultery a ground for divorce for men and women.

What is the government’s stance?

• Government: No plans to set up a panel to implement the UCC.
• The chairperson and members of 22nd Law Commission (2021): They have not yet been appointed.

2. Need a new appointment system to fill vacancies in higher judiciary: Rijiju

The Law Minister said the government had returned 20 names to the Collegium, but it had appointed 165 judges across various High Courts, making it the highest for a calendar year

The issue of vacancies and appointments in the higher judiciary will continue to arise until a new system is created, Law Minister Kiren Rijiju told the Rajya Sabha on Thursday.

The Law Minister’s comments, made while giving answers to supplementaries during the Question Hour, comes in the midst of an ongoing war of words between the government and the Supreme Court over the delay in appointments to the higher judiciary.

Asked if the government would revive the National Judicial Appointments Commission (NJAC) Act, Mr. Rijiju said that several prominent jurists, retired judges, advocates, and leaders of political parties have opined that the striking down of the Act by the Supreme Court was not correct. The issue of the NJAC Act, which sought to replace the current Collegium system, has also been raised by Vice-President Jagdeep Dhankhar twice over the past 15 days.

30% vacancy

As on December 9, 777 judges are working in the High Courts against the sanctioned strength of 1,108, leaving a vacancy of 331 or 30%. To fill these vacancies, 147 proposals are at various stages of discussion between the Supreme Court Collegium and the Union government, while the names for another 184 vacancies are yet to be received by the Collegiums of various High Courts.

In a written response, the Minister said that while the government had returned 20 names back to the Collegium, it has appointed 165 judges across various High Courts, making it the highest for a calendar year.

Mr. Rijiju said the total number of cases pending in various courts is about to touch five crore, adding that the impact of such a huge pendency of court cases on the public is obvious. “Currently, the government has limited powers to fill the vacancies [in courts],” he said, adding that the Centre cannot look for names other than those recommended by the Collegium.

The Law Minister said that somehow he felt that “we are not working as per the spirit of the House and feelings of the people of the country”. “We are giving our full support to reduce pendency of cases. But questions will keep arising on vacancy of judges and appointments till we create a new system for appointments,” he added.

National Judicial Appointments Commission (NJAC)

On 16 October 2015, in a 4-1 majority verdict, the Supreme Court held that both the Constitution (Ninety-ninth Amendment) Act, 2014, and the National Judicial Appointments Commission (NJAC) Act, 2014, were unconstitutional as it would undermine the independence of the judiciary.

The majority said the two laws affect the independence of the judiciary, and judicial appointments, among other things, should be protected from executive control.

About NJAC and the Act:

NJAC is a body responsible for the appointment and transfer of judges to the higher judiciary in India. NJAC Bill sought to replace the collegium system of appointing the judges of Supreme Court and High Courts with judicial appointments commission wherein the executive will have a say in appointing the judges.

A new article, Article 124A,(which provides for the composition of the NJAC) was to be inserted into the Constitution.

The Bill provided for the procedure to be followed by the NJAC for recommending persons for appointment as Chief Justice of India and other Judges of the Supreme Court (SC), and Chief Justice and other Judges of High Courts (HC).

According to the bill the commission will consist of the following members:

1. Chief Justice of India (Chairperson, ex officio)
2. Two other senior judges of the Supreme Court next to the Chief Justice of India – ex officio
3. The Union Minister of Law and Justice, ex-officio
4. Two eminent persons (to be nominated by a committee consisting of the Chief Justice of India, Prime Minister of India and the Leader of opposition in the Lok Sabha or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in Lok Sabha), provided that of the two eminent persons, one person would be from the Scheduled Castes or Scheduled Tribes or OBC or minority communities or a woman. The eminent persons shall be nominated for a period of three years and shall not be eligible for re-nomination.

How proponents of NJAC defend it?

According to them the enactment of the 99th Amendment was intended at redressing the imbalance created by the verdict of court in second judges case.

For them, NJAC would have been a more broad-minded forum, providing a genuine chance to participate and influence the selection of our higher judiciary — not merely to the Supreme Court and the executive, but also to laypersons (eminent persons) outside the constitutional framework.

Why the court struck down NJAC act?

The court has held that the appointment of judges, coupled with primacy of judiciary and the CJI, was part of the basic structure of the Constitution and that the parliament, through NJAC act, violated this basic structure.

3. SC to hear plea against poll bond scheme next month

The case, which has been pending since 2015, has a new petition challenging a govt. notification allowing the sale of electoral bonds for an additional 15 days in Assembly election years

The Supreme Court on Thursday agreed to examine in January a plea to refer to a Constitution Bench petitions accusing the electoral bonds scheme of illegally facilitating anonymous donations to political parties days before polls are due.

A Bench led by Justice B. R. Gavai listed the case for the last week of January 2023.

Advocate Prashant Bhushan, appearing for petitioner NGO Association for Democratic Reforms, requested the court for an urgent hearing, saying the question of reference to a Constitution Bench could be heard and decided quickly at an early date.

Justice Gavai said the case had been pending since 2015. Mr. Bhushan said the petitioners had made several requests for an early hearing.

The Bench, however, pointed out that there were no elections due in the interregnum before the last week of January even as the petitioners urged it to list the case for the first week of the new year.

Mr. Bhushan submitted there was now an election “every two or three months”.

The case has a new petition which has challenged a recent government notification allowing the sale of electoral bonds for an additional 15 days in Assembly election years.

This petition has sought the quashing of the November 7 notification issued by the Finance Ministry amending the electoral bonds scheme. “An additional period of 15 days shall be specified by the Centre in the year of general elections to the Legislative Assembly of States and Union territories with the legislature,” the gazette notification had said.

Earlier, a 30-day extra period for sale was allowed only during Lok Sabha election year.

In October, during a hearing in the case, the Court had asked the government whether the electoral bonds’ system revealed the source of money pumped in to fund political parties even as the Centre had repeatedly maintained that the scheme was “absolutely transparent”.

Election Bonds

• To develop and purge the nation’s political fundraising system, the government announced the Electoral Bond Scheme,  on January 2, 2018.
• The Reserve Bank of India Act of 1934, the Representation of Peoples Act of 1951, the Income Tax Act of 1961, and the Companies Act were all amended to include electoral bonds.

The main features of electoral bonds are the following.

Features of Electoral bond

• Election-related bonds are made to be bearer instruments, much like promissory notes. It will resemble a banknote that is interest-free and receivable to the bearer upon demand.
• Any Indian individual or organisation with an Indian corporation that has a KYC-compliant account may purchase it.
• The bonds will be accessible at specific State Bank of India branches for a predetermined period of time each year in multiples of Rs. 1,000, Rs. 10,000, Rs. 1 lakh, Rs. 10 lakh, and Rs. 1 crore.
• In accordance with the Central Government’s instructions, the bonds will be on sale for 10 days at the beginning of each quarter, that is, in January, April, July, and October. The Central Government shall specify a further period of thirty days during the Lok Sabha election year.
• The Central Government should specify an additional term of fifteen days in the year of general elections to the Legislative Assembly of States and Union Territories with the Legislature, according to a recent revision (November 2022).
• The donor buys the bonds, transfers them to the political party’s account, and then sells them again. After that, it can be withdrawn using the party’s confirmed account within 15 days.
• The bonds will not bear the donor’s name to protect their privacy. The goal is to make sure that any donations made to a party are recorded in the balance sheets without disclosing the donors’ personal information.
• The only political parties eligible to receive electoral bonds are those that are registered under Section 29A of the Representation of the People Act, 1951, and that received at least 1% of the votes cast in the most recent general election for the state’s legislative assembly or house of representatives.
• If returns are submitted by the political party, the donor will receive a tax deduction and the beneficiary, or the political party would receive a tax exemption.

Electoral Bond Scheme benefits

• Transparency: The plan calls for developing a transparent bond-purchasing system with verified KYC and an audit trail. The electoral bonds will encourage contributors to make donations through banking, allowing the issuing authorities to collect their identities. Encourage clean political donations from individuals, businesses, HUFs, nonprofit organisations, and other entities, breaking the link between business and politics.
• Get rid of black money: Its employment as a counter currency would be rendered impossible by a small window and a brief maturity period. Details about the amount of money political parties obtained through electoral bonds must be submitted.
• Donor privacy: By introducing some measure of confidentiality, contributors will be protected from vengeful politics, such as harassment by one party for supporting its rivals.
• Reduces tax evasion: Strict eligibility requirements will deter attempts to create political parties under the guise of tax avoidance.

As every coin has a head and tail electoral bonds also have certain concerns too.

Concerns over Electoral Bond

• Neither the donor nor the political party is required to disclose the source of the donation. So it infringes on the right to know. The Supreme Court ruled that the “right to know,”, particularly in regard to elections, is a complement to the freedom of expression (Article 19) right.
• Due to the anonymity of donors, electoral bonds don’t provide any information to the public about how elections are funded. It affects the notion of impartial and free elections.
• An update has removed the requirement to identify the donor’s identity to income tax law.
• Additionally, businesses no longer need to disclose in their financial accounts the donations they make to political parties. This makes anonymous donations possible.
• The government is always able to identify the donor because the bonds are bought through the SBI. The procedure could potentially be skewed in favour of the political party in power as a result of the knowledge imbalance.
•  It is an aversion to crony capitalism. The 2017 Finance Bill removed the upper restriction of 7.5% on the percentage of profits a corporation might donate to a political party, opening the door for fly-by-night shell companies to be formed particularly to support parties.

4. Curbing air pollution in India needs efforts across South Asia: WB report

India has six large airsheds, some of them shared with Pakistan, between which air pollutants move. While existing measures by the government can reduce particulate matter, significant reduction is possible only if the territories spanning the airsheds implement coordinated policies, says a report by the World Bank made public on Thursday.

Using a modelling approach over South Asia as a whole, the report lays out multiple scenarios and the costs involved in reducing the average South Asian’s exposure to particulate matter.

Currently over 60% of South Asians are exposed to an average 35 g/m3 of PM2.5 annually. In some parts of the Indo-Gangetic Plain (IGP) it spiked to as much as 100 g/m3 – nearly 20 times the upper limit of 5 g/m3 recommended by the World Health Organisation, says the World Bank report.

The six major airsheds in South Asia where air quality in one affected the other were: West/Central IGP that included Punjab (Pakistan), Punjab (India), Haryana, part of Rajasthan, Chandigarh, Delhi, Uttar Pradesh; Central/Eastern IGP: Bihar, West Bengal, Jharkhand, Bangladesh; Middle India: Odisha/Chhattisgarh; Middle India: Eastern Gujarat/Western Maharashtra; Northern/Central Indus River Plain: Pakistan, part of Afghanistan; and Southern Indus Plain and further west: South Pakistan, Western Afghanistan extending into Eastern Iran.

When the wind direction was predominantly northwest to the southeast, 30% of the air pollution in Indian Punjab came from the Punjab Province in Pakistan and, on average, 30% of the air pollution in the largest cities of Bangladesh (Dhaka, Chittagong, and Khulna) originated in India. In some years, substantial pollution flowed in the other direction across borders.

What this means is that even if Delhi National Capital Territory were to fully implement all air pollution control measures by 2030 while other parts of South Asia continued to follow current policies, it wouldn’t keep pollution exposure below 35 g/m3. However if other parts of South Asia also adopted all feasible measures it would bring pollution below that number. “This is also the case with many other cities in South Asia, especially those in the IGP. Accounting for the interdependence in air quality within airsheds in South Asia is necessary when weighing alternative pathways for pollution control,” the report noted.

The report analysed multiple scenarios to reduce air pollution with varying degrees of policy implementation and cooperation among countries.

The most cost-effective one, which calls for full coordination between airsheds, would cut the average exposure of PM 2.5 in South Asia to 30 g/m³ at a cost of $278 million (₹2,400 crore) per g/m of reduced exposure, and save more than 7,50,000 lives annually.

5. What are Kerala’s University Laws (amendment) Bills?

Why is the Kerala government attempting to remove Governor Arif Mohammed Khan as the Chancellor of State universities? What are the arguments for and against such a move?

The Kerala government has passed the two University Laws (amendment) Bills in the State Assembly to amend laws relating to the governance of State universities and to remove Governor Arif Mohammed Khan as the Chancellor of said universities.

What do the Bills say?

The proposed legislations will amend the statutes of 14 universities established by legislative Acts in Kerala and remove the Governor as the Chancellor. The Bills will give the government power to appoint eminent academicians as Chancellors of various universities, thus ending the Governor’s watchdog role in university administration. The Bills also provide provisions to limit the term of the appointed chancellor to five years.

How did the Bill come into being?

Mr. Khan and the State Government have been at loggerheads for months now. It reached a simmering point when the Governor accused Kannur University VC Prof. Gopinath Raveendran of plotting to endanger his life at the 2019 Indian History Congress. This took a turn for the worse when the Governor denied assent to the controversial Lok Ayukta (Amendment) Bill and University Laws (Amendment) Bill passed earlier by the State Assembly. The fallout from this stand-off between the Governor and the Government led to Mr. Khan claiming that he has the power to dismiss Ministers who criticise him. Mr. Khan went to the extent of suggesting that the Chief Minister should take action against Finance Minister K.N. Balagopal as he had “ceased to enjoy my [Governor’s] pleasure.” The worsening relationship between the State and Mr. Khan reached a tipping point with the Supreme Court order invalidating the Kerala Technological University VC’s appointment. Following this judgment, the Governor demanded the resignations of 11 other VCs claiming that they were appointed through the same procedure that was invalidated by the top court.

Why is the State government amending University laws?

The Minister for Law, P. Rajeeve, while tabling the Bills, pointed out that the UGC guidelines, which earlier used to be considered mandatory for Central universities and “partially mandatory and partially directive” for State universities, had been made legally binding for all universities by way of recent rulings by the Supreme Court. “Worryingly, such precedence pointed towards a scenario in which the legislative powers of the Assembly on all subjects on the Concurrent List (of the Constitution) could be undermined through a subordinate legislation or an executive order issued by the Centre,” he said. Moreover, the State government has claimed the recommendation of the Punchhi Commission on Centre-State Relations to refrain from “burdening the Governor with positions and powers which are not envisaged by the Constitution and which may lead the office to controversies or public criticism” as the rationale behind the Bills.

What are arguments against the Bill?

As described above, the Bills would give the State Government more leeway in appointing its own nominees as VCs of State Universities. This would mean a transfer of power over university administration from the Governor and the UGC to the State Government. While both the ruling front and the Opposition seem united in stripping away the Governor’s Chancellorship, the Opposition fears that the State Government would try to turn State universities into its fiefdom, leading to the erosion of the autonomy universities enjoy.

6. Editorial-1: Is the RTI Act fulfilling its purpose?

The Right to Information (RTI) Act was passed by Parliament in 2005, aiming to give people access to the records of the Central and State governments. It was a vital reform to help activists and individuals ensure transparency and accountability in governance. In a discussion moderated by Sonikka Loganathan, Anjali Bhardwaj and Saurav Das take stock of what’s working and the issues that appear to be weakening the law. Edited excerpts:

Is the RTI Act fulfilling its purpose?

Anjali Bhardwaj: It has been one of the most empowering legislations for people because this is the one law that puts an obligation on the government to respond to them in a time-bound manner, to get them information to hold the government accountable. The law has, in many ways, tilted the balance of power in favour of those governed. That is, I think, something that people in the country at large have understood. So when there is denial of their rights and entitlements such as their rations, pensions, medicines in hospitals or education in schools, they reach out to government departments to file an RTI application, and very often they do get information.

We have seen that a majority of the RTI applications are filed by people who are asking about their basic rights and entitlements. So it has fulfilled its purpose to that extent. The other thing is that to hold high offices to account, people have used the RTI law to know what is happening with taxpayers’ money. This has enabled them to expose big-ticket scams such as the Adarsh, Commonwealth Games and Vyapam scams. They’ve also been able to expose human rights violations, and then force accountability in those cases as well.

Saurav Das: To a certain extent, yes. The Act is still effective despite the widespread attempts to dilute its efficacy. This is because the law was born out of a sustained people’s movement. Officers still think twice before replying to an RTI query, which reflects the seriousness with which it is taken. The major impediment is the lack of awareness of this law and lack of widespread adoption. By adoption, I mean people really thinking of the law as their own creation. The day these two things are achieved, the RTI Act’s real mandate will be realised.

Do you have to be an RTI expert to know how to properly file questions?

AB: What is remarkable about the RTI Act is that it came as a result of a very strong grassroots movement, where people from all walks of life came together to say that there was a need for a legislation to ensure that they were empowered to seek information from the government. The law basically ensures that there is no set format in which an RTI application has to be filed. It’s a fairly straightforward, simple process. The quality of information one receives depends on how the questions are drafted and framed. Our research has shown that a very large percentage of RTI applications are filed by the poorest and the most marginalised, usually asking for information that relates to their very basic rights and entitlements.

So somebody asking for their ration card, whether the ration card has been made or not, it’s a fairly simple question. And they’re able to ask that question without too much training. But when one asks for complex information, which deals with, let’s say, corruption, large scams or cases of violations of the law or human rights, that is when one needs to really frame the questions in a very detailed manner — where expertise helps.

SD: The beauty of this Act is its simplicity. But, for example, in High Courts, if you are asking for information, they have particular forms through which you can seek information. If you file an application in Odisha, they have a particular format for filing. These sorts of rules create hindrances for people.

AB: There are some States where you can only file an RTI application within 150 words. Condensing the question, especially for those who might not have the benefit of a formal education, becomes a challenge.

Is the RTI ensuring transparency between the citizen and the government as it was intended to do?

SD: Very cleverly, the public information officers these days use words like this division does not have the information. So now they are putting, in a way, the liability on the applicant to find out which officer and which office will hold that information. This is not in consonance with the RTI Act because the liability is on the officer to find out who is holding the information and transfer the RTI application.

AB: They’re supposed to specifically refer to which section they’re using to deny information. Without even referring to a section, we are seeing a large number of denials where people are just told that this information cannot be provided to you, which is an illegal denial.

Was this reluctance to share information always a problem?

AB: When the law came in 2005, it revolutionised the information space. It meant that anyone could ask any public authority for information, and there has been resistance from the very beginning. The first attempt to amend the law came within 10 months of it being introduced. We’re seeing that there are problems at various levels today. First, within the government, asking for information is not encouraged. Second, even maintaining datasets and information, putting information in the public domain has become a big problem. So during COVID-19, for example, when the government was asked how many people lost their lives due to lack of oxygen, about the number of migrant workers, on all of that the government said, we don’t have any data. The 2021 census hasn’t happened, and the government is now saying it’s been indefinitely postponed. Now, that is a source of data. So if the government doesn’t collect data, or doesn’t put it out, then people’s right to information becomes really restricted. There is a large-scale denial of information.

There have been several attempts by governments to amend the law. And in every case, whether it was the proposed amendment to say that file notings will not be part of the right to information or it was to say that political parties will be left out of the ambit of the RTI Act, people protested and governments had to step back.

Of course, in 2019, they did go ahead and make the amendments (giving the government the power to set service conditions for information commissioners). But despite threats, attacks and murders of RTI users, people are still using the law extensively, which testifies to the fact that it’s something that they find very powerful.

If the law has been whittled down, could you give us examples of the ways in which this has happened?

SD: Successive governments have tried to whittle down this law, beginning with the United Progressive Alliance itself, the creator of this law. State governments have tried and are still trying to do it. But the two biggest and successful attempts have been made or are being made by the National Democratic Alliance government. Once in 2019, and the second now, by way of the Data Protection Bill which will most likely pass.

AB: We have huge vacancies in information commissions, which means that appeals and complaints keep pending.

Other laws can impact the RTI Act such as the updated Data Protection Bill. Can you explain what kind of issues this is causing.

AB: The Data Protection Bill will set up a system of amending the RTI law in a manner that all personal information will be exempted. In a community where people are not being given their entitlements or rights under the public distribution system, for example, there is granular information that is put up saying this is the name of the person, [these are] the rations that they are being given, their address, so as to enable a social audit in order to put pressure on the government and hold them accountable.

We feel now that the entire proactive disclosure scheme, which was provided for under the RTI Act, is going to be completely undermined.

Successive governments have tried to whittle down this law, beginning with the United Progressive Alliance itself, the creator of this legislation