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27 February 2017 Question Bank

 

27th FEBRUARY 2017 

QUESTION BANK 

(2 Questions)

Answer questions in NOT MORE than 200 words each. Content of the answer is more important than its length.

Links are provided for reference. You can also use the Internet fruitfully to further enhance and strengthen your answers.

GS II: POLITY – BILL

1.    Discuss the issue of legality behind the Union government’s move in introducing the Aadhaar Act as a money bill. What are the judicial precedents on the matter?

http://www.thehindu.com/opinion/lead/what-exactly-is-a-money-bill/article17372184.ece

  • The Supreme Court will begin hearing final arguments next month on a writ petition challenging the validity of the Aadhaar (Targeted Delivery of Financial & Other Subsidies, Benefits & Services) Act, 2016 — or the Aadhaar Act.
  • The proceeding, initiated by Jairam Ramesh, a Member of Parliament in the Rajya Sabha, primarily questions the legality behind the Union government’s move in introducing the Aadhaar Act as a money bill.
  • Through this categorisation, the government had the law enacted by securing a simple majority in the Lok Sabha while rendering redundant any opposition to the legislation in the Upper House of Parliament.
  • During preliminary hearings, the Supreme Court has suggested that it isn’t entirely convinced of the merits of Mr. Ramesh’s petition. But a closer examination will only show that the introduction of the Aadhaar Act as a money bill contravenes the bare text of the Constitution.

Aadhaar conceived:

  • Originally, Aadhaar was conceived as a scheme to provide to every Indian a unique identity number, with a purported view to enabling a fair and equitable distribution of benefits and subsidies.
  • There is little doubt that the scheme’s introduction, with no prior legislative backing, was a flagrant wrong, and was completely unjustifiable as a measure of democratic governance.
  • Public interest petitions were filed in the Supreme Court challenging the project’s legitimacy. In these cases, the court issued a series of interim orders prohibiting the state from making Aadhaar mandatory, while permitting its use only for a set of limited governmental schemes.
  • When a draft of a statute was eventually introduced in the Rajya Sabha, in December 2010, it was done so as an ordinary bill.

Aadhaar  as Money Bill:

  • In March 2016, the Union government withdrew the earlier bill, and introduced, in its place, as a money bill, a new draft legislation, titled the Aadhaar (Targeted Delivery of Financial & Other Subsidies, Benefits & Services) Bill, 2016.
  • This categorisation was extraordinary because a money bill, under India’s constitutional design, requires only the Lok Sabha’s affirmation for it to turn into law.
  • Right on cue, within days of the bill’s introduction, the Lower House, in complete disregard of the Rajya Sabha’s protestations, passed the legislation, as Act No. 18 of 2016.
  • This law, Mr. Ramesh now argues, is patently illegal, because its classification as a money bill infringes the Constitution’s mandates.

Definition of Money Bill:

  • A money bill is defined by Article 110 of the Constitution, as a draft law that contains only provisions that deal with all or any of the matters listed therein.
  • These comprise a set of seven features, broadly including items such as the imposition or regulation of a tax; the regulation of the borrowing of money by the Government of India; the withdrawal of money from the Consolidated Fund of India; and so forth.
  • In the event a proposed legislation contains other features, ones that are not merely incidental to the items specifically outlined, such a draft law cannot be classified as a money bill.
  • Article 110 further clarifies that in cases where a dispute arises over whether a bill is a money bill or not, the Lok Sabha Speaker’s decision on the issue shall be considered final.

Flawed counterpoint

  • The government’s response to Mr. Ramesh’s claim is predicated on two prongs: that the Speaker’s decision to classify a draft legislation as a money bill is immune from judicial review, and that, in any event, the Aadhaar Bill fulfilled all the constitutional requirements of a money bill.
  • A careful examination of these arguments will, however, show us that the government is wrong on both counts.
  • To be fair, the assertion that the Speaker’s decision is beyond judicial review finds support in the Supreme Court’s judgment in Mohd. Saeed Siddiqui v. State of UP (2014). Here, a three-judge bench had ruled, in the context of State legislatures, that a Speaker’s decision to classify a draft statute as a money bill, was not judicially reviewable, even if the classification was incorrect.
  • This is because the error in question, the court ruled, constituted nothing more than a mere procedural irregularity.
  • But there are significant problems with this view. Chief among them is the wording of Article 110, which vests no unbridled discretion in the Speaker. The provision requires that a bill conform to the criteria prescribed in it for it to be classified as a money bill. Where a bill intends to legislate on matters beyond the features delineated in Article 110, it must be treated as an ordinary draft statute. Any violation of this mandate has to be seen, therefore, as a substantive constitutional error, something which Siddiqui fails to do.
  • There are other flaws too in the judgment. Most notably, it brushes aside the verdict of a Constitution Bench in Raja Ram Pal v. Hon’ble Speaker, Lok Sabha (2007), where the court had ruled that clauses that attach finality to a determination of an issue do not altogether oust the court’s jurisdiction.
  • That is, the bench held, there are numerous circumstances where the court can review parliamentary pronouncements.
  • These would include instances where a Speaker’s choice is grossly illegal, or disregards basic constitutional mandates, or, worse still, where the Speaker’s decision is riddled with perversities, or is arrived at through dishonest intentions.

What Aadhaar Act shows

  • A simple reading of the Aadhaar Act would show us that its contents go far beyond the features enumerated in Article 110.
  • If anything, it is the provisions in the legislation that pertain to the Consolidated Fund and its use that are incidental to the Act’s core purpose — which, quite evidently, is to ensure, among other things, the creation of a framework for maintaining a central database of biometric information collected from citizens.
  • Ordinarily, a draft legislation is classified as a money bill when it provides for funds to be made available to the executive to carry out specific tasks. In the case of the Aadhaar Act, such provisions are manifestly absent.
  • In many ways, Aadhaar has brought out to plain sight the worryingly totalitarian impulses of our state. 

Right to privacy

  • The government has argued, with some force, that Indian citizens possess no fundamental right to privacy.
  • This argument, however, is predicated on judgments of the Supreme Court that have little contemporary relevance, and that have, in any event, been overlooked in several subsequent cases where the court has clarified the extent of the liberties that the Constitution guarantees.
  • Privacy is important not merely because it advances the cause of equality and freedom but also because it is, in and of itself, a treasurable value.
  • A failure to protect privacy adequately can have disastrous consequences that affect our abilities to determine for ourselves how we want to live our lives.
  • And the Aadhaar Act hits at the core of this value. It permits the creation of a database of not only biometric information but also various other private data, without so much as bothering about safeguards that need to be installed to ensure their security.
  • We scarcely need to stretch our imaginations to wonder what the government — and other agencies to which this information can be shared without any regulatory checks — can do with all this material.
  • That a statute so pernicious in its breadth can be enacted after being introduced as a money bill only makes matters worse.
  • It has the effect of negating altogether the Rajya Sabha’s legislative role, making, in the process, a mockery of our democracy.
  • It is imperative, therefore, that the court refers the present controversy to a larger bench, with a view to overruling Siddiqui.

http://www.thehindu.com/migration_catalog/article14111015.ece/alternates/FREE_660/Aadhaar-money-bill.jpg 

http://timesofindia.indiatimes.com/photo/47304395.cms 

http://aashah.com/Download/679.jpeg

 


GS II : SOCIAL TRIBALS

2. There is a need to balance the rights of tribals and the investors under Bilateral Investment Treaties (BITs) in India. Elucidate.

http://www.thehindu.com/opinion/op-ed/protecting-the-rights-of-tribals/article17372134.ece

BIT based arbitrations:

  • Recently, Ras Al Khaimah Investment Authority (RAKIA), an Emirati investor, initiated an investment treaty arbitration (ITA) claim against India under the India-UAE Bilateral Investment Treaty (BIT), seeking compensation of $44.71 million.
  • This claim arose after a memorandum of understanding (MoU) between Andhra Pradesh and RAKIA to supply bauxite to Anrak Aluminum Limited, in which RAKIA has 13% shareholding, was cancelled, allegedly due to the concerns of the tribal population in those areas.
  • Similarly, in 2014, Bear Creek Mining Corporation initiated an ITA against Peru under the investment chapter of the Canada-Peru Free Trade Agreement, claiming violation of the investment obligations due to the withdrawal of mining concessions, allegedly as a result of the protests by indigenous peoples.
  • These cases present an opportunity to evaluate the impact of the obligations of the host states under BITs on the rights of the tribal people.

Protection under law

  • The United Nations Declaration on the Rights of Indigenous People (UNDRIP), adopted in 2007, for which India voted, recognises among other things indigenous peoples’ rights to self-determination, autonomy or self-governance, and their right against forcible displacement and relocation from their lands or territories without free, prior and informed consent.
  • In addition to the UNDRIP, there is the International Labour Organisation (ILO) Convention concerning Indigenous and Tribal Peoples, 1989 which is based on the “respect for the cultures and ways of life of indigenous peoples” and recognises their “right to land and natural resources and to define their own priorities for development.”
  • India is not a party to this, but it is a party to the ILO Convention concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, 1957 which is outdated and closed for ratification.
  • At the domestic level, the Constitution provides autonomy to tribal areas in matters of governance under the Fifth and Sixth Schedules, which is further fortified by the Samatha v. State of Andhra Pradesh & Ors (1997) judgment where the Supreme Court declared that the transfer of tribal land to private parties for mining was null and void under the Fifth Schedule.
  • The framework for protection of the rights of tribal and indigenous people is further strengthened by the Recognition of Forest Rights Act, 2006 which protects the individual and community rights of tribal people in forest areas and their right to free and prior informed consent in event of their displacement and resettlement.

Investment promotion

  • While the legislation for the protection of the rights of tribal people are in place, they are regularly flouted as has been highlighted by the Xaxa Committee report of 2014.
  • Instead of ensuring that tribals are not ousted from the land to which they are historically and culturally connected, the state becomes more concerned about fulfilling contractual obligations towards the private investor.
  • This means that constitutional and legal principles are discarded. This is evidenced by the increasing number of MoUs being signed by natural resources-endowed states with investors for facilitation of developmental projects.
  • For instance, Chhattisgarh and Jharkhand have reportedly entered into 121 and 74 such MoUs, respectively, with various private players as of 2014.
  • All this materially alters the role of the state vis-à-vis the tribal people as the state prefers economic expediency at the cost of the rights of tribal people.
  • For economic development, states invite investments not only from domestic investors but also from foreign players whose interests are not only protected under domestic laws but also under the BITs.
  • The purpose of BITs is to give protection to foreign investors while imposing certain obligations on the host state.
  • For instance, if a development project involving a foreign investor in tribal areas leading to acquisition of tribal land is met with protest, there may be two possible scenarios.

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

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

  • In both cases, foreign investors may drag India to ITA claiming violation of obligations under the BIT, such as fair and equitable treatment or indirect expropriation.
  • This perceived threat of ITA against the state may compel the latter to refrain from implementing tribal rights in the development project area.

Conflicting interests

  • A recent report of the UN Special Rapporteur on the Rights of Indigenous Peoples recognises three main reasons for the serious impact that foreign investments have on the rights of indigenous people:

1.      failure to adequately address human rights issues of tribal people in BITs;

2.      the perceived threat of ITA for enforcement of investor protection; and

3.      exclusion of indigenous people from the policymaking proces.

Options available to India to tackle these issues:

1.      First, none of the 80-plus BITs signed by India contains even a single provision on the rights of tribals. Even the 2015 model Indian BIT does not contain any such provision. Thus, to avoid ITA cases by foreign investors, the government’s approach should be to include provisions relating to the protection of indigenous people in BITs. There are many examples from around the world: Canada, in many of its BITs, has several exceptions to protect the rights of indigenous people. The Trans-Pacific Partnership agreement also incorporates the rights of the Maoris from New Zealand.

Since India is going to renegotiate its existing BITs, it should create a special exception for taking regulatory measures for protecting the rights of tribal people, in which case it should have a textual basis in the BITs to derogate from investment protection obligations under BITs.

2.      Second, the strengthening of BITs must go hand in hand with the implementation of domestic legislations for the protection of the rights of tribals, where the state does not consider tribals as impediments in the development process.

3.      Third, as far as possible, tribal people should be given representation even in investment policymaking.

https://i2.wp.com/mrunal.org/wp-content/uploads/2014/10/XAXA-Committee-tribal.jpg?resize=640%2C319

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