Legislation UpdatesStatutes/Bills/Ordinances

The Foreign Contribution (Regulation) Amendment Bill, 2020

Lok Sabha passed the Foreign Contribution (Regulation) Amendment Bill, 2020 on 21-09-2020 and today i.e. 23-09-2020, Rajya Sabha passed the Bill.

Why has the bill been proposed?

The annual inflow of foreign contribution has almost doubled between the years 2010 and 2019, but many recipients of foreign contribution have not utilised the same for the purpose for which they were registered or granted prior permission under the said Act. Many of them were also found wanting in ensuring basic statutory compliances such as submission of annual returns and maintenance of proper accounts.

This has led to a situation where the Central Government had to cancel certificates of registration of more than 19,000 recipient organisations, including non-Governmental organisations, during the period between 2011 and 2019.

Therefore, there is a need to streamline the provisions of the said Act by strengthening the compliance mechanism, enhancing transparency and accountability in the receipt and utilisation of foreign contribution worth thousands of crores of rupees every year and facilitating genuine non-Governmental organisations or associations who are working for the welfare of the society.

Highlights of the Bill are as follows:

Prohibition to accept foreign contribution [Section 3]

No foreign contribution shall be accepted by any public servant, Judge, Government servant or employee of any corporation or any other body controlled or owned by the Government.

Prohibition to transfer foreign contribution to other person [Section 7]

Now the bill proposes the prohibition to the transfer of foreign contribution to another person and the requirement of valid certificate has also been removed. i.e earlier a person could transfer to the person with a valid certificate, but that has been removed now.

Restriction to utilise foreign contribution for the administrative purpose [Section 8]

The foreign contributions received shall be used only up to 20% which earlier was 50%.

Registration of certain persons with Central Government

[Section 11]

Only after the prior permission of the Central Government a person who is not registered shall accept the foreign contribution:

Provided that the Central Government, on the basis of any information or report, and after holding a summary inquiry, has reason to believe that a person who has been granted prior permission has contravened any of the provisions of this Act, it may, pending any further inquiry, direct that such person shall not utilise the unutilised foreign contribution or receive the remaining portion of foreign contribution which has not been received or, as the case may be, any additional foreign contribution, without prior approval of the Central Government:

Provided further that if the person referred to in sub-section (1) or in this sub-section has been found guilty.”.

Grant of Certificate of Registration [Section 12]

Every person who makes an application for grant of a certificate shall be required to open an FCRA Account in the manner mention in Section 17 Aand mention the details of such an account in his application.

Mandatory Aadhaar [Section 12 A] [New Section]

As an identification document for the purpose of this Act, Aadhaar number for all Office bearer or directors of all NGOs and other organization which is eligible for foreign contribution is mandatory. However, a passport or overseas citizen of India card is required in the case of foreign nationals.

Suspension of Certificate [Section 13]

Time limit for suspension of Certificate issued under FCRA has been stated to be as either 180 days or such further period not exceeding 180 days, as may be specified.

Surrender of Certificate [Section 14 A] [New Section]

If the Central Government is satisfied after inquiry as it deems fit, it can permit a person to surrender the certificate.

Foreign Contribution through Scheduled Bank [Section 17]

Now, under this provision, every person who has been granted a certificate or prior permission under Section 12 shall receive foreign contribution only in an account designated as “FCRA Account” which shall be opened by him in such branch of the State Bank of India at New Delhi.

Along with the above stated key highlights, amendments under Section 15 and 16 have also been made which can be referred to in the bill below.

Please read the bill here: BILL


Parliament

Legislation UpdatesStatutes/Bills/Ordinances

Parliament passed two bills aimed at transforming agriculture in the country and raising farmers’ incomes. The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Bill, 2020 and The Farmers (Empowerment and Protection) Agreement of Price Assurance and Farm Services Bill, 2020 which were passed by Lok Sabha on 17th September 2020, were passed by the Rajya Sabha also today. The Bills were introduced in Lok Sabha on 14th September 2020 by Union Minister of Agriculture & Farmers’ Welfare, Rural Development & Panchayati Raj, Shri Narendra Singh Tomar, to replace ordinances promulgated on 5th June 2020..

The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Bill, 2020

Main provisions –

  • The new legislation will create an ecosystem where the farmers and traders will enjoy freedom of choice of sale and purchase of agri-produce.
  • It will also promote barrier-free inter-state and intra-state trade and commerce outside the physical premises of markets notified under State Agricultural Produce Marketing legislations.
  • The farmers will not be charged any cess or levy for sale of their produce and will not have to bear transport costs.
  • The Bill also proposes an electronic trading in transaction platform for ensuring a seamless trade electronically.
  • In addition to mandis, freedom to do trading at farmgate, cold storage, warehouse, processing units etc.
  • Farmers will be able to engage in direct marketing thereby eliminating intermediaries resulting in full realization of price.

Doubts –

  • Procurement at Minimum Support Price will stop
  • If farm produce is sold outside APMC mandis, these will stop functioning
  • What will be the future of government electronic trading portal like e-NAM

Clarification –

  • Procurement at Minimum Support Price will continue, farmers can sell their produce at MSP rates, the MSP for Rabi season will be announced next week
  • Mandis will not stop functioning, trading will continue here as before. Under the new system, farmers will have the option to sell their produce at other places in addition to the mandis
  • The e-NAM trading system will also continue in the mandis
  • Trading in farm produce will increase on electronic platforms. It will result in greater transparency and time saving

The Farmers (Empowerment and Protection) Agreement of Price Assurance and Farm Services Bill, 2020

Main provisions –

  • The new legislation will empower farmers for engaging with processors, wholesalers, aggregators, wholesalers, large retailers, exporters etc., on a level playing field. Price assurance to farmers even before sowing of crops. In case of higher market price, farmers will be entitled to this price over and above the minimum price.
  • It will transfer the risk of market unpredictability from the farmer to the sponsor. Due to prior price determination, farmers will be shielded from the rise and fall of market prices.
  • It will also enable the farmer to access modern technology, better seed and other inputs.
  • It will reduce cost of marketing and improve income of farmers.
  • Effective dispute resolution mechanism has been provided for with clear time lines for redressal.
  • Impetus to research and new technology in agriculture sector.

Doubts –

  • Under contract farming, farmers will be under pressure and they will not be able to determine prices
  • How will small farmers be able to practice contract farming, sponsors will shy away from them
  • The new system will be a problem for farmers
  • In case of dispute, big companies will be at an advantage

Clarification –

  • The farmer will have full power in the contract to fix a sale price of his choice for the produce. They will receive payment within a maximum of 3 days.
  • 10000 Farmer Producer organizations are being formed throughout the country. These FPOs will bring together small farmers and work to ensure remunerative pricing for farm produce
  • After signing contract, farmer will not have seek out traders. The purchasing consumer will pick up the produce directly from the farm
  • In case of dispute, there will be no need to go to court repeatedly. There will be local dispute redressal mechanism.

Ministry of Agriculture & Farmers Welfare

Legislation UpdatesStatutes/Bills/Ordinances

The Institute of Teaching and Research in Ayurveda Bill 2020 has been passed by Rajya Sabha.

The Bill was earlier passed in Lok Sabha on 19-03-2020. This paves the way to establish a state-of-the-art Ayurvedic institution called the Institute of Teaching and Research in Ayurveda (ITRA) at Jamnagar, Gujarat, and to confer the status of Institution of National Importance (INI) to it.

Purpose of Establishment

The ITRA is sought to be established by conglomerating the presently existing Ayurveda institutes at Gujarat Ayurved University campus Jamnagar. This is a cluster of highly reputed institutions, namely, (a) Institute for Post Graduate Teaching and Research in Ayurveda, (b) Shree GulabKunverba Ayurveda Mahavidyalaya, and (c) Institute of Ayurvedic Pharmaceutical Sciences, (d) Maharshi Patanjali Institute for Yoga Naturopathy Education & Research (to be made part of the Department of Swasthvritta of the proposed ITRA). These institutions had come up over the past many decades, and together made a unique family of Ayurveda institutions existing in close proximity.

It is expected that the enactment of the proposal will further provide autonomy to the institute to develop patterns of teaching in undergraduate and postgraduate education in Ayurveda and Pharmacy. The synergies among the different constituent institutions will help ITRA to demonstrate high standards of such education and to emerge as a lighthouse institution to the entire AYUSH Sector. It is expected to provide the highest level of training of personnel in all important branches of Ayurveda including Pharmacy, and to take up in-depth study and research in the field of Ayurveda.

ITRA will be the first institution with INI status in the AYUSH sector, and this will enable the institution to be independent and innovative in the matter of deciding course content and pedagogy. The decision comes at a time when global interest in health solutions based on traditional wisdom is at an unprecedentedly high level and ITRA is poised to take Ayurveda education to new vistas.


Parliament

[Source: PIB]

Op EdsOP. ED.

Introduction

India got its freedom in 1947, and thereafter got its Constitution in 1949, which is a sacred and sacrosanct document and is also the longest written Constitution in the world. As our independent nation flourished and evolved, so did its democracy, which also highlighted the short-comings of the Constitution from time to time. To deal with such shortcomings, Parliament stood up to its responsibility and amended the Constitution from time to time.

In Democracy, election of representatives from constituencies is one of the most important processes, and so does presence of political parties. Various political parties set-up their candidates from different constituencies for elections of members to LokSabha/Legislative Assembly. These candidates get elected mostly, rather than Independent candidates.

However, party politics has been severely undermined by the politics of Aaya Rams and Gaya Rams. It has been time and again experienced that upon being elected to the legislature, lawmakers switch parties and cause political instability – often enticed by the rival party with plum public posts or, simply, money. The earliest example was from Haryana where in 1967, one Gaya Lal switched parties three times within the same day. This is in no way less than a fraud with the electors, who elect representative for a period of 5 years and is also a fraud with the political party under whose symbol such candidate contested and got elected.

Parliament though brought anti-defection law and amended it also from time to time, but people have made such laws redundant by their cunning methods.

Our country is facing similar problem even today. We have seen that in many States like Karnataka and Madhya Pradesh, ruling party MLAs have begun to resign in strategic numbers and join rival political parties for extraneous considerations best known to them. Thereby leading to reduction in the number of simple majority giving the opposition party /coalition (otherwise in minority) a shot at forming the government by demanding a floor test. Recently, it is being seen that the same strategy is being used to give advantage to the parties in getting more Members of Parliament elected to Rajya Sabha (Council of States). Thus, in the present article, I’ve made an attempt to examine the history of Constitutional amendments to deal with the malpractice of defection, how successful have they been and what future course is required in wake of current practices of horse trading.

Historical Development

Prior to 1974, Article 190(3)(b) of the Constitution of India prescribed that seat of a member of Legislative Assembly shall become vacant, if he resigns by writing to the Speaker. Thus, the Speaker had no control over the same and the seat used to become vacant at the drop of a hat.

The instances of misuse of this provision led to the introduction of the Constitution (33rd Amendment) Act, 1974[1]. The Statement of Objects and Reasons of such 33rd Amendment was as under:

“Articles 101(3)(b) and 190(3)(b) of the Constitution permit a member of either House of Parliament or a member of a House of the Legislature of a State to resign his seat by writing under his hand addressed to the Speaker or the Chairman, as the case may be. In the recent past, there have been instances where coercive measures have been resorted to for compelling members of a Legislative Assembly to resign their membership. If this is not checked, it might become difficult for Legislatures to function in accordance with the provisions of the Constitution. It is, therefore proposed to amend the above two articles to impose a requirement as to acceptance of the resignation by the Speaker or the Chairman and to provide that the resignation shall not be accepted by the Speaker or the Chairman if he is satisfied after making such inquiry as he thinks fit that the resignation is not voluntary or genuine.”

(emphasis supplied)

Thus, amendment was brought to place a check on the genuineness of the resignation. Now the seat was to be vacated only upon the acceptance of resignation by the Speaker with a view that he/she shall apply his/her mind to satisfy himself/herself that such resignation is voluntary.

To stop MLAs to join the opposition parties or defying the party whip during voting in the house without tendering actual resignation, the Constitution (52nd Amendment) Act, 1985[2], was brought to deal with the menace of such open defection, with the following Statement of Objects and Reasons:

“1.The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it. With this object, an assurance was given in the Address by the President to Parliament that the Government intended to introduce in the then current session of Parliament an anti-defection Bill.

  1. The Bill seeks to amend the Constitution to provide that an elected member of Parliament or a State Legislature, who has been elected as a candidate set up by a political party and a nominated member of Parliament or a State Legislature who is a member of a political party at the time he takes his seat or who becomes a member of a political party within six months after he takes his seat, would be disqualified on the ground of defection if he voluntarily relinquishes his membership of such political party or votes or abstains from voting in such House contrary to any direction of such party or is expelled from such party. An independent member of Parliament or a State Legislature shall also be disqualified if he joins any political party after his election. A nominated member of Parliament or a State Legislature who is not a member of a political party at the time of his nomination and who has not become a member of any political party before the expiry of six months from the date on which he takes his seat shall be disqualified if he joins any political party after the expiry of the said period of six months. The Bill also makes suitable provisions with respect to splits in, and mergers of, political parties. A special provision has been included in the Bill to enable a person who has been elected as the presiding officer of a House to sever his connections with his political party. The question as to whether a member of a House of Parliament or State Legislature has become subject to the proposed disqualification will be determined by the presiding officer of the House; where the question is with reference to the presiding officer himself, it will be decided by a member of the House elected by the House in that behalf.” (emphasis supplied)

In the aforesaid manner, Article 191(2) along with the  Tenth Schedule were inserted in the Constitution of India to deal with the extra-ordinary situations of destabilising the “constitutionally elected governments” and attacking the democracy, by resorting to unfair means.

It is clear from both the above Constitutional Amendments that the Indian democracy and Constitution had been evolving on the basis of past experiences and challenges coming up. After the 52nd Constitutional Amendment, no other Constitutional Amendment has been done to deal with the new challenges which kept on coming up in this regard.

Current Scenario

In the last one decade, new challenges have been coming up. For the lure of offices and other considerations best known to all, MLAs have started hopping on to a flight to some remote resort where they are kept under tight security even from their family members and then made to tender resignations “voluntarily”. These strategic resignations are to dodge the Tenth Schedule, which otherwise would have been attracted in case of group absenteeism. However, such absenteeism does not attract the Tenth Schedule in case of elections of Rajya Sabha. Such a situation may also give birth to infamous practice of convenient abductions or political murders as seen in history across jurisdictions, to force absenteeism.

It is interesting to note that such MLAs who resign have contested Bye-Elections on the ticket of the party which benefits from the resignation from their earlier affiliation. In fact, a lot of such resigning MLAs are awarded requisite ministries in the newly formed government, sometimes immediately and sometimes if they successfully win the bye-election as its candidate. Such practices have made resignation a powerful tool for elected legislators to negotiate quid-pro-quo deals within their party and if the need be, with the party in opposition which is already hungry for power.

Such practices mock the current Constitutional democratic set up and ridicule the public mandate. They seriously tend to commit a fraud by bringing in a lost party to power, as against the wishes of the governed. One might argue that there is nothing wrong with such practices, because if the rebel MLA is re-elected in the bye-election under a different party, it would be an automated approval of the defection. But this is a fallacious argument. Rebel MLA already having been a part of a successful campaign has a clear head start as against any other candidate which will be set up by the defected party for that constituency. Therefore, defection in the first place by way of resignation is a fraud on the trust of the public which puts such a candidate in power by virtue of his affiliation to a particular political party.

Critics may also argue that people vote for the candidate, based on his individual merits as public figure rather than on the basis of the political party to which he/she is a member of. However this holds good only in theory. It is well known that in every contested election a symbol is allotted to every contesting candidate in accordance with the provisions of the Election Symbols (Reservation and Allotment) Order, 1968. Such symbols may be either reserved or free. ‘Reserved Symbol’ is a symbol which is reserved for a recognised political party for exclusive allotment to contesting candidates set up by that party and ‘Free Symbol’ is a symbol for candidates other than those setup by the recognised political party. Recognised political party means either a National Party or a State Party. A detailed procedure is provided in law for recognition of a National and State Party. Thus, a person gets to contest election under the ‘Reserved Symbol’ only when he is setup as a candidate of ‘Recognised Party’. It is thus clear from the above that a candidate setup by recognised party gets the privilege of contesting election under the symbol of a recognised party.

A parliamentary democracy, like that of India, functions on the basis of the party system.  The Tenth Schedule to the Constitution recognises the importance of the political parties in our democratic set up.  It is open for Parliament to provide that the members of the political party elected on a party ticket, act according to the decisions made by the party and not against it.

It is indeed a privilege, for a candidate set up by a recognised political party, that he gets votes based on the goodwill of the political party, including the goodwill of star campaigners of the party who solicited votes for that candidate. The political party incurs huge expenditures in the said election campaigns for the candidate. The candidate also benefits from the ideology of the political parties manifested in the election manifesto because it also influences people to vote. Hence, it is not just the candidate who is voted for, but it is the political party who is also put to vote of electors. If the contrary were to be believed there would not be any difference in the success rate between the candidates setup by the  recognised political parties and an Independent candidates.

In the history of parliamentary elections in India prior to 2019 Lok Sabha Elections, a total of 44,962 independents have contested polls but only 222 of them have won to become Member of Parliament (MP) rendering a mere 0.49% chance of success.[3] In the first election in 1951, where 37 Independent Candidates won, the number has fallen down to 3 in the 2014 elections.[4] These ever declining figures even prompted the Election Commission and Law Commission to recommend that Independent Candidates must be debarred from contesting elections altogether.[5]

Therefore it is clear that people do vote for the symbol of political parties and there is hardly any doubt as to the vital role political parties play in the success of any candidate from any constituency. The Supreme Court has also opined that political parties are sine qua non of parliamentary democracy.[6]

Hence, a recognised political party is at a higher pedestal than a candidate, due to which the claim of a recognised political party must be recognised upon the seat concerned of MLA, even in case of vacancy of seat for any reason (resignation, death, etc), until the results of the bye-elections are declared.

Conclusion

The current situations as observed in the case of Karnataka, Madhya Pradesh and Rajasthan, tell us a tale of how parties have circumvented the defection law to put the ruling party in an unfair position. The duly elected Governments in the respective States were subjected to a vote of confidence which they were destined to lose, due to the prior resignations in strategic numbers enticed by personal considerations. It also gives undue advantage in Rajya Sabha Elections also like in Gujarat and Madhya Pradesh. Such practices can set up a trend which may prove to be fatal to the concept of federalism in this country wherein an all powerful Central Government can deploy its resources to help their party in the States where other parties have formed the Governments by orchestrating a similar fall.

Therefore to remedy the situation we suggest that if a duly elected Government comes in minority, upon vacancy of seats due to resignations or death of MLAs then also such Government shall be permitted to continue until the Bye-Elections are completed upon such seats. In other words, the party on whose ticket such resignee/dead MLA won the election should have a claim over such seat.  This can be achieved in the following manner:

  • The house strength and majority mark must be deemed to be unchanged i.e. not reduced by the number of vacancies, till the results of bye-elections to such vacant seats are declared.
  • The vacant seat must be counted as notional seat of the party on whose ticket such resignee/dead MLA won the election, till the results of bye-elections to such vacant seats are declared.
  • The Election to the Council of State (Rajya Sabha) be deferred, till the results of bye-elections to such vacant seats are declared, if the strategic number of vacant seats has bearing on the result of election to the Council of States.

This will ensure that no opposition party will gain any advantage from inducing such strategic resignations, in forming the Government or taking undue advantage in election like Member of Council of State (Rajya Sabha) but at the same time, the legitimate chance of opposition party to form the Government will not be hampered but only delayed by 6 months. It will also reinforce the true spirit of a democracy that ultimately it is the people who will decide the fate of any Government in bye-elections.

If the resignee MLA actually won the preceding elections on his independent merit, he will have a fair shot of getting re-elected in the by-elections either independently or on the ticket of different party. Similarly if the opposition party manages to win the bye-elections with numbers adequate to establish majority, they will get their due shot at forming the government in accordance with the public mandate. We urge Parliament and the polity of our country to consider, debate and bring an amendment to give effect to these proposed changes in law, as it will also ensure that the strategic resignations of today do not turn into mysterious abductions or deaths of tomorrow.

Further to support our suggestion, the time period to conduct such by-elections may be reduced from 6 months to 3 months. This will ensure that the legal fiction suggested operates only to achieve its purpose and not become a tool for further abuse.


*Former Additional Advocate General of Madhya Pradesh and  Practicing Advocate in High Court of Madhya Pradesh.

** Final year student pursuing BA LLB (Hons.) from National Law Institute University Bhopal.

[1] Constitution (33rd Amendment) Act, 1974

[2] Constitution (52nd Amendment) Act, 1985

[3] https://www.news18.com/news/politics/since-the-1st-elections-only-0-49-of-independent-candidates-have-managed-to-enter-lok-sabha-2047541.html

[4] https://factly.in/law-commission-india-recommending-independent-candidates-debarred-from-contesting-elections/

[5] Law Commission of India, Government of India, Report No. 255 on Electoral Reforms, 2015

[6] Kuldip Nayyar v. Union of India, (2006) 7 SCC 1.

Legislation UpdatesStatutes/Bills/Ordinances

The Central Sanskrit Universities Bill, 2020 has been passed by the Parliament.

The Lok Sabha had already passed the Bill on 12th December 2019. Speaking after the passing of the Bill, Union HRD Minister Shri Ramesh Pokhriyal ‘Nishank’ thanked the Members of the House for their support in passing the Bill .This bill will convert (i) Rashtriya Sanskrit Sansthan, New Delhi, (ii) Shri Lal Bahadur Shastri Rashtriya Sanskrit Vidyapeeth, New Delhi, and (iii) Rashtriya Sanskrit Vidyapeeth, Tirupati into Central Sanskrit Universities.

Purpose of introducing the Bill:

The upgradation of three Deemed to be Universities in Sanskrit, namely, Rashtriya Sanskrit Sansthan, Delhi, Sri Lal Bahadur Shastri Rashtriya Sanskrit Vidyapeeth, New Delhi and Rashtriya Sanskrit Vidyapeeth, Triputi into Central Universities through the Central Sanskrit Universities Bill, 2019 would enhance the status of these Universities and will give a boost to Post Graduate, Doctoral and Post Doctoral education and Research in the field of Sanskrit and Shastraic education. It would help in getting better faculty, attract foreign students, Sanskrit scholars, foreign faculty of international repute and help in international collaborations with global Universities across the world. This will also help in enhancing the opportunities for imparting education in the field of Indian Philosophy, Yoga, Ayurveda and Naturopathy

Case BriefsHigh Courts

Bombay High Court: A Division Bench of B.P. Dharmadhikari, ACJ and N.R. Borkar, J. while dismissing a writ petition held that,

Union cannot exist without State and States therefore, form important part of consideration when language of Union is to be looked into. Thus, Parliament has in Section 3(5) of Official Language Act, 1963 envisaged resolution of discontinuance of use of English Language.

Petitioners stated that they are registered under the Society Registration Act, 1860 and also are Public Trust as per the Bombay Public Trust Act, 1950 with the object of promoting the cause of Hindi language.

Further, they prayed to declare Official Language Act, 1963 unconstitutional or in the alternate to quash and set aside its Section 3(5) as unconstitutional

Counsel for the petitioner, V. V. Khemka stated that the subject of official language was deliberately not included in the 7th Schedule and doesn’t form part of the scheme commencing from Article 246 onwards upto Article 254 of Constitution of India.

Continuation of Official Languages Act, 1963 for the last 57 years is, contrary to Article 343.

Section 3(5) of the Official Language Act, 1963 continues the use of the English language for purposes of Chapter-I gave primacy to legislatures of all States and this treatment or primacy is unconstitutional.

Respondent contended that separate treatment given to official language in Part XVII itself militates the petitioner’s arguments.

High Court on perusal of the contentions placed by the parties, stated that,

Article 343(3) of the Constitution of India permits Parliament to bring a law to permit the use of English beyond the period of 15 years and when the said period was about to expire, Parliament thought it fit to bring into the Official Languages Act, 1963 and Section 3 of the said Act points out the circumstances in which user of English can be discontinued.

Bench stated that as far as Section 3(5) is concerned, it requires resolutions for discontinuance of use of the English language passed by legislatures of all States which have not adopted Hindi as their official language.

Article 345 itself begins with words “Subject to the provisions of articles 346 and 347” and empowers legislature of a State to adopt any one or more of the languages in use in that State or Hindi as the language for official purposes.

In so far as affairs of States are concerned, the States have been given supremacy to decide upon language to be used by them. Article 343 does not in any way interfere with that supremacy. 

Court found nothing unconstitutional in Section 3(5) of the Official Languages Act, 1963. [Rashtrabhasha Mahasangh v. Union of India,  2020 SCC OnLine Bom 417, decided on 12-03-2020]

Legislation UpdatesStatutes/Bills/Ordinances

After clearing the passage for some major Bills like Citizenship (Amendment) Bill, 2019 now the Winter Session of the parliament is likely to take up the following bills for discussion:

The Insolvency and Bankruptcy Code (Second Amendment) Bill, 2019, inter alia, provides for the following, namely:—

(i) to omit the proviso to clause (12) of section 5 of the Code so as to clarify that the insolvency commencement date is the date of admission of an application for initiating corporate insolvency resolution process;

(ii) to amend section 7 of the Code to insert certain provisos specifying a minimum threshold for certain classes of financial creditors for initiating insolvency resolution process;

(iii) to amend section 11 of the Code so as to clarify that a corporate debtor should not be prevented from filing an application for initiation of corporate insolvency resolution process against other corporate debtors;

(iv) to amend section 14 of the Code to clarify that a licence, permit, registration, quota, concession, clearances or a similar grant or right cannot be terminated or suspended during the Moratorium period;

(v) to amend section 16 of the Code so as to provide that an insolvency resolution professional should be appointed on the date of admission of the application for initiation of insolvency resolution process;

(vi) to amend section 23 of the Code to enable the “resolution professional” to manage the affairs of the corporate debtor during interim period between the expiry of corporate insolvency resolution process till the appointment of a liquidator;

(vii) to insert a new section 32A so as to provide that the liability of a corporate debtor for an offence committed prior to the commencement of the corporate insolvency resolution process shall cease under certain circumstances;

(viii) to amend section 227 of the Code so as to clarify that the insolvency and liquidation proceedings for financial service providers may be conducted with such modifications and in such manner as may be prescribed; and

(ix) the other amendments which are of consequential in nature.

The proposed legislation intends to amalgamate, simplify and rationalise the relevant provisions of the following nine central labour enactments relating to social security, namely:––

1. The Employees’ Compensation Act, 1923;
2. The Employees’ State Insurance Act, 1948;
3. The Employees’ Provident Funds and Miscellaneous Provisions Act, 1952;
4. The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959;
5. The Maternity Benefit Act, 1961;
6. The Payment of Gratuity Act, 1972;
7. The Cine Workers Welfare Fund Act, 1981;
8. The Building and Other Construction Workers Welfare Cess Act, 1996; and
9. The Unorganised Workers’ Social Security Act, 2008.

The Maintenance and Welfare of Parents and Senior Citizens (Amendment) Bill, 2019 seeks to —

(a) expand the scope of the Act by modifying the definitions of ‘children’, ‘parents’, ‘maintenance’, ‘welfare’ and ‘senior citizens’, to enable parents and senior citizens to lead a life of dignity;

(b) enlarge the mode of submission of application for maintenance by the parents or senior citizens;

(c) provide for expeditious disposal of maintenance applications with special preference to the applications of senior citizens above eighty years of age, so as to enable parents or senior citizens to receive necessary relief;

(d) remove the upper limit of rupees ten thousand as monthly maintenance amount that may be awarded by the Tribunal;

(e) extend the right to file appeal to children and relatives also who are aggrieved by the order of the Maintenance Tribunal, if they continue to pay the maintenance amount as ordered by the Maintenance Tribunal;

(f) provide for registration of Senior Citizens’ Care Homes, Multi-Service Day Care Centre for Senior Citizens and Institutions providing Homecare Services for Senior Citizens and their minimum standards;

(g) constitute Special Police Unit for Senior Citizens in each district and appoint Nodal Officers for Senior Citizens in every Police Station;

(h) maintain Helpline for senior citizens; and

(i) provide stringent punishment to those who abuse or abandon parents or senior citizens

The proposed legislation seeks to bring a strong and robust data protection framework for India and to set up an Authority for protecting personal data and empowering the citizens’ with rights relating to their personal data ensuring their fundamental right to “privacy and protection of personal data”.

The upgradation of three Deemed to be Universities in Sanskrit, namely, Rashtriya Sanskrit Sansthan, Delhi, Sri Lal Bahadur Shastri Rashtriya Sanskrit Vidyapeeth, New Delhi and Rashtriya Sanskrit Vidyapeeth, Triputi into Central Universities through the Central Sanskrit Universities Bill, 2019 would enhance the status of these Universities and will give a boost to Post Graduate, Doctoral and Post Doctoral education and Research in the field of Sanskrit and Shastraic education.

Legislation UpdatesStatutes/Bills/Ordinances

Parliament passes the Citizenship (Amendment) Bill, 2019 today.

The Bill has been passed with a majority of 125.


On 10-12-2019, the Citizenship (Amendment) Bill, 2019 was passed by Lok Sabha with a majority of 311 in favour of the Bill.

Following are provisions to be amended as placed in the Bill:

  • Amendment of Section 2:

In the Citizenship Act, 1955 (hereinafter referred to as the principal Act), in section 2, in sub-section (1), in clause (b), the following proviso shall be inserted, namely:—

“Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 and who has been exempted by the
Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as illegal migrant for the purposes of this Act.”

  • Insertion of new Section 6B

Special provisions as to the citizenship of person covered by the proviso to clause (b) of sub-section (1) of Section 2.

  • Amendment of Section 7D

In section 7D of the principal Act,—

(i) after clause (d), the following clause shall be inserted, namely:—

“(da) the Overseas Citizen of India Cardholder has violated any of the provisions of this Act or provisions of any other law for time being in force as may be specified by the Central Government in the notification published in the Official Gazette; or”.

(ii) after clause (f), the following proviso shall be inserted, namely:—

“Provided that no order under this section shall be passed unless the Overseas Citizen of India Cardholder has been given a reasonable opportunity of being heard.”

  • Amendment of Section 18

In section 18 of the principal Act, in sub-section (2), after clause (ee), the following clause shall be inserted, namely:—

“(eei) the conditions, restrictions and manner for granting certificate of registration or certificate of naturalisation under sub-section (1) of section 6B;”

  • Amendment of Third Schedule

In the Third Schedule to the principal Act, in clause (d), the following proviso shall be inserted, namely:—

‘Provided that for the person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community in Afghanistan, Bangladesh or Pakistan, the aggregate period of residence or service of Government in India as required under this clause shall be read as “not less than five years” in place of “not less than eleven years”.

*Citizenship (Amendment) Bill, 2019 passed by Lok Sabha


Discussion in Rajya Sabha has begun: [LIVE UPDATES]

  • Amit Shah: There has been an almost 20% decline each in the population of religious minorities in both Pakistan and present-day Bangladesh. Either they were killed or they fled to India for shelter [ANI]
  • Shah says, CAB was in their manifesto and it is their duty to bring it in the House for discussion.
  • No Muslim in India needs to worry due to this Bill. Don’t get scared if someone tries to scare you. — Home Minister
  • Anand Sharma speaks on the Bill in opposition
  • Sharma: It fails the morality test, it is divisive and discriminatory
  • The bill that you have brought is an assault on the very foundation of the Indian constitution, it is an assault on the Republic of India. It hurts the soul of India, Says Sharma [ANI]
  • JP Nadda speaking in favour of Citizenship Bill
  • This Bill is in national interest: Nadda
  • Derek O Brien: I read that PM said this will be written in golden letters. I will tell you where it will be written, it will be written on the grave of the father of the nation, but which father of the nation? In Karachi, on Jinnah’s grave [ANI]
  • RCP Singh, JDU in Rajya Sabha: We support this bill. The bill is very clear, it gives citizenship to persecuted minorities from three of our neigbouring countries, but here debate is being done on our Indian Muslim brothers.[ANI]
  • P. Chidambaram speaks on the Bill.
  • Chidambaram: Ultimately the non-elected people i.e. the lawyers, judges will be deciding on the Bill and it is a question on the Parliament.
  • Chidambaram: This government is ramming through this Bill to advance its Hindutva agenda. This is a sad day. I am absolutely clear that this law will be struck off. [ANI]
  • Sanjay Raut of Shiv Sena speaks on the Bill. “We don’t need to prove our nationalism”
  • Satish Chandra Mishra of BSP Speaks in opposition to the Bill.
  • Praful Patel of NCP is now speaking.
  • Bill is being passed in a hurry -Praful Patel
  • Kapil Sibal speaks on the Bill.
  • Sibal: I request you Home Minister “rise above the politics!”
  • Sibal: They are targeting a community without naming it
  • This Bill is not tenable-Sibal
  • Those who have no idea of India cannot protect the idea of India -Kapil Sibal
  • Sanjay Singh of AAP Party opposes the Bill.
  • D Kupendra Reddy, JD(S): This Bill will be dilution of our secularism policy in this country. I strongly oppose this Bill. I recommend that the Bill be sent to a select committee of Parliament for scrutiny.[ANI]
  • Home Minister: Neither CAB is anti-Muslim, nor abrogation of Article 370 is anti-Muslim, Triple Talaq Bill is not anti-Muslim either. Triple Talaq is the Bill to give rights to crores of Muslim women in the country. [ANI]
  • CAB won’t hurt the citizenship of the Muslims.
  • CAB won’t be referred to Select Committee
Amendments to existing lawsLegislation Updates

With the Dadra and Nagar Haveli and Daman and Diu (Merger of Union territories) Act, 2019 now both the existing Union Territories of Dadra and Nagar Haveli and Daman and Diu will be formed into —

“Union territory of Dadra and Nagar Haveli and Daman and Diu”

The said Act received President’s assent on 09-12-2019.

Following are the major heads of the Act:

  • Formation of Union territory of Dadra and Nagar Haveli and Daman and Diu
  • Amendment of Article 240 of Constitution
  • Amendment of the First Schedule to Constitution
  • Allocation of seats in House of People
  • Provisions as to sitting members
  • Extension of jurisdiction of High Court of Bombay
  • Assets and Liabilities
  • Provisions as to Services

*Please follow the link to read the Act: The Dadra and Nagar Haveli and Daman and Diu (Merger of Union territories) Act, 2019


Ministry of Law and Justice

Hot Off The PressNews

In line with the recommendations of the Second National Commission on Labour, the Ministry has taken steps for drafting four Labour Codes i.e. the Code on Wages; the Code on Industrial Relations, the Code on Occupational Safety, Health & Working Conditions & the Code on Social Security by simplifying, amalgamating and rationalizing the relevant provisions of the existing Central Labour Laws. Out of these 4 Labour Codes, the Code on Wages, 2019, has been notified on 8th August, 2019 in the Gazette of India. The Occupational Safety, Health and Working Conditions Code, 2019 was introduced in Lok Sabha on 23rd July, 2019 and subsequently, referred to the Parliamentary Standing Committee on Labour for examination. The Industrial Relations Code, 2019 has been introduced in Lok Sabha on 28th November, 2019. The Code on Social Security, 2019 has been approved by the Cabinet for its introduction in Parliament.

These Labour Codes, inter-alia, address issues relating to minimum wage, social security and working conditions for workers.  For health care, Ayushman Bharat-Pradhan Mantri Jan Arogya Yojana (AB-PMJAY) provides health coverage up to Rs. 5.00 lakh per family per annum to around 10.74 crore deprived families based on the Socio-Economic Caste Census (SECC) for secondary and tertiary care hospitalization.

The proposed codification will also make the existing labour laws in sync with the emerging economic scenario; reduce the complexity by providing uniform definitions and reduction in multiple authorities under various Acts and bring transparency and accountability in enforcement of labour laws. This, in turn, would lead to ease of compliance, catalyzing the setting up of manufacturing units including boosting Labour-intensive industries such as agriculture and manufacturing exports. This would lead to enhancement in employment opportunities as well as its formalization along with ensuring safety, social security and welfare of workers.

This information was given by Santosh Kumar Gangwar Minister of State (I/C) for Labour and Employment in a written reply to a question in Lok Sabha today.


Ministry of Labour & Employment

[Source: PIB]

Hot Off The PressNews

Following are the Bills that have received President’s assent in this week of the Parliament Sessions:

  • The Chit Funds (Amendment) Act, 2019
  • The Jallianwala Bagh National Memorial (Amendment) Act, 2019
  • The Transgender Persons (Protection of Rights) Act, 2019
  • The Prohibition of Electronic Cigarettes (Production, Manufacture, Import, Export, Transport, Sale, Distribution, Storage and Advertisement) Act, 2019

Read the process of how a Bill becomes an Act below:

The basic function of Parliament is to make laws. All legislative proposals have to be brought in the form of Bills before Parliament. A Bill is a statute in draft and cannot become law unless it has received the approval of both the Houses of Parliament and the assent of the President of India.

The process of law making begins with the introduction of a Bill in either House of Parliament. A Bill can be introduced either by a Minister or a member other than a Minister. In the former case, it is called a Government Bill and in the latter case, it is known as a Private Member’s Bill.

A Bill undergoes three readings in each House, i.e., the Lok Sabha and the Rajya Sabha, before it is submitted to the President for assent.

First Reading

The First Reading refers to (i) motion for leave to introduce a Bill in the House on the adoption of which the Bill is introduced; or(ii) in the case of a Bill originated in and passed by the other House, the laying on the Table of the House of the Bill, as passed by the other House.

Second Reading

The Second Reading consists of two stages.The “First Stage” constitutes discussion on the principles of the Bill and its provisions generally on any of the following motions – that the Bill be taken into consideration; or that the Bill be referred to a Select Committee of the House; or that the Bill be referred to a Joint Committee of the Houses with the concurrence of the other House; or that the Bill be circulated for the purpose of eliciting opinion thereon. The “Second Stage” constitutes the clause by clause consideration of the Bill, as introduced in the House or as reported by a Select or Joint Committee, as the case may be.

In the case of a Bill passed by Rajya Sabha and transmitted to Lok Sabha, it is first laid on the Table of Lok Sabha by the Secretary-General, Lok Sabha. In this case the Second Reading refers to the motion (i) that the Bill, as passed by Rajya Sabha, be taken into consideration; or (ii) that the Bill be referred to a Select Committee (if the Bill has not already been referred to a Joint Committee of the Houses).

Third Reading

The Third Reading refers to the discussion on the motion that the Bill or the Bill, as amended, be passed.

Almost similar procedure is followed in Rajya Sabha in respect of Bills introduced in that House.

After a Bill has been finally passed by the Houses of Parliament, it is submitted to the President for his assent. After a Bill has received the assent of the President, it becomes the law of the land.

Reference of Bills to Departmentally Related Standing Committees

The year 1993 ushered in a new era in the history of Indian Parliament when 17 Departmentally Related Standing Committees were constituted. The number of Standing Committees has now been increased from 17 to 24. While 8 Committees work under the direction of the Chairman, Rajya Sabha, 16 Committees work under the direction of the Speaker, Lok Sabha.

One of the important functions of these Committees is to examine such Bills introduced in either House as are referred to them by the Chairman, Rajya Sabha or the Speaker, Lok Sabha, as the case may be, and make report thereon.

The reports of the Standing Committees have persuasive value. In case the Government accepts any of the recommendations of the Committee, it may bring forward official amendments at the consideration stage of the Bill or may withdraw the Bill reported by the Standing Committee and bring forward a new Bill after incorporating the recommendations of the Standing Committee.

BILLS BEFORE A SELECT OR JOINT COMMITTEE

If a Bill is referred to a Select or a Joint Committee, it considers the Bill clause-by-clause just as the House does. Amendments can be moved to the various clauses by the members of the Committee. After the report of the Select or Joint Committee has been presented to the House, the member-in-charge of the Bill usually moves the motion for consideration of the Bill, as reported by the Select or Joint Committee, as the case may be.

A Money Bill or a Financial Bill containing any of the provisions calculated to make a Bill a Money Bill, however, cannot be referred to a Joint Committee of the Houses.

RESTRICTION ON INTRODUCTION OF CERTAIN CATEGORIES OF BILLS IN RAJYA SABHA

A Bill may be introduced in either House of Parliament. However,a Money Bill can not be introduced in Rajya Sabha.It can only be introduced in Lok Sabha with prior recommendation of the President for introduction in Lok Sabha. If any question arises whether a Bill is a Money Bill or not, the decision of the Speaker thereon is final.

Rajya Sabha is required to return a Money Bill passed and transmitted by Lok Sabha within a period of 14 days from the date of its receipt. Rajya Sabha may return a Money Bill transmitted to it with or without recommendations. It is open to Lok Sabha to accept or reject all or any of the recommendations of Rajya Sabha.

However, if Rajya Sabha does not return a Money Bill within the prescribed period of 14 days, the Bill is deemed to havebeen passed by both Houses of Parliament at the expiry of the said period of 14 days in the form in which it was passed by Lok Sabha.

Like Money Bills, Bills which, inter alia, contain provisions for any of the matters attracting sub-clauses (a) to (f) of clause (1) of article 110 can also not be introduced in Rajya Sabha. They can be introduced only in Lok Sabha on the recommendation of the President. However, other restrictions in regard to Money Bills do not apply to such Bills.

CONSTITUTION AMENDMENT BILLS

The Constitution vests in Parliament the power to amend the Constitution. Constitution Amendment Bills can be introduced in eitherHouse of Parliament. While motions for introduction of Constitution Amendment Bills are adopted by simple majority , a majority of the total membership of the House and a majority of not less than two-thirds of the members present and voting is required for adoption of effective clauses and motions for consideration and passing of these Bills. Constitution Amendment Bills affecting vital issues as enlisted in the proviso to article 368(2) of the Constitution after having been passed by the Houses of Parliament, have also to be ratified by not less than one half of the State Legislatures.

JOINT SITTING

Article 108(1) of the Constitution provides that when a Bill (other than a Money Bill or a Bill seeking to amend the Constitution) passed by one House is rejected by the other House or the Houses have finally disagreed as to the amendments made in the Bill or more than six months lapse from the date of the receipt of the Bill by the other House without the Bill being passed by it, the President may, unless the Bill has lapsed by reason of dissolution of Lok Sabha, notify to the Houses by message, if they are sitting, or by public notification, if they are not sitting, his intention to summon them to meet in a Joint Sitting.

The President has made the Houses of Parliament (Joint Sittings and Communications) Rules in terms of clause (3) of article 118 of the Constitution to regulate the procedure with respect to Joint Sitting of Houses.

So far, there have been three occasions when Bills were considered and passed in a Joint Sitting of the Houses of Parliament.

ASSENT TO BILLS

After a Bill has been passed by both the Houses of Parliament, it is presented to the President for his assent. The President mayeither assent to the Bill, withhold his assent, or return the Bill, if it is not a Money Bill, with a message for reconsideration of the Bill, or any specified provisions thereof, or for considering the desirability of introducing any such amendments as he may recommend in his message.

The President may either give or withhold his assent to a Money Bill. A Money Bill can not be returned to the House by the President for reconsideration. Also, the President is bound to give hisassent to Constitution Amendment Bill passed by Parliament by the prescribed special majority and, where necessary, ratified by the requisite number of State Legislatures.

Hot Off The PressNews

The Ministry of Social Justice and Empowerment introduced a Bill titled “The Transgender Persons (Protection of Rights) Bill, 2019” in the Lok Sabha In order to provide for the protection of rights of transgender persons and their welfare.

The Bill was passed by the Lok Sabha on 05.08.2019 and by the Rajya Sabha on 26.11.2019.

The Ministry had released Rs. 1.00 Crore to National Backward Classes Finance and Development Corporation (NBCFDC) for conducting skill development training programme for the members of Transgender Community during the financial year 2018-19. At present, there is no reservation for Transgender persons in public sector employment.

This information was given by Minister of State for Social Justice and Empowerment Shri Rattan Lal Kataria in a written reply in Rajya Sabha today.


Ministry of Social Justice & Empowerment

[Source: PIB]

[Press Release dt. 04-12-2019]

Cabinet DecisionsLegislation Updates

As per the reports of ANI, the Citizenship Amendment Bill, 2019 has been approved by the Union Cabinet.

It is said that it will be introduced in the Winter Session of Parliament.

Provisions that would be introduced for further discussion in the Parliament and have been incorporated in the bill are as follows:

  • In the Citizenship Act, 1955 (hereinafter referred to as the principal Act), in section 2, in sub-section (1), after clause (b), the following provisos shall be inserted, namely:—

“Provided that persons belonging to minority communities, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, who have been exempted by the Central Government by or under clause (c) of sub- section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any order made thereunder, shall not be treated as illegal migrants for the purposes of that Act:

Provided further that on and from the date of commencement of the Citizenship (Amendment) Act, 2019, any proceeding pending against any person referred to in the first proviso shall be abated and such person shall be eligible to apply for naturalisation under Section 6.”

  • In the principal Act, in section 7D,—

(i) after clause (d), the following clause shall be inserted namely:—

“(da) the Overseas Citizen of India Cardholder has violated any of the provisions of this Act or provisions of any other law for the time being in force as may be specified by the Central Government by notification published in the Official Gazette; or”;

(ii) after clause (f), the following proviso shall be inserted, namely:—

“Provided that no order under this section shall be passed unless the Overseas Citizen of India Cardholder has been given a reasonable opportunity of being heard.”

  • In the principal Act, in the Third Schedule, in clause (d), the following proviso shall be inserted, namely:—

“Provided that for the persons belonging to minority communities, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, the aggregate period of residence or service of a Government in India as required under this clause shall be read as “not less than six years” in place of “not less than eleven years”.

Legislation UpdatesStatutes/Bills/Ordinances

Rajya Sabha clears passage for the SPG Amendment Bill, 2019 today.

Special Protection Group (Amendment) Bill, 2019 is a bill introduced further to amend the Special Protection Group Act, 1988.

Amendment of Section 4

2. In section 4 of the Special Protection Group Act, 1988,—

(i) for sub-section (1), the following sub-section shall be substituted, namely:—

“(1) There shall be an armed force of the Union called the Special Protection Group for providing proximate security to,—

(a) the Prime Minister and members of his immediate family residing with him at his official residence; and

(b) any former Prime Minister and such members of his immediate family as are residing with him at the residence allotted to him, for a period of five years from the date he ceases to hold the office of Prime Minister.”;

(ii) in sub-section (1A), for clause (b), the following clause shall be substituted, namely:—

“(b) where the proximate security is withdrawn from a former Prime Minister, such proximate security shall also stand withdrawn from members of immediate family of such former Prime Minister.”

 

Hot Off The PressNews

Minister of Law and Justice, Ravi Shankar Prasad made a statement with respect to the “Reported Use of Spyware Pegasus to Compromise Phone Data of Some Persons through WhatsApp” as raised by the Minister of Parliament Digvijay Singh.

On 31-10-2019, there was news in Indian media reporting breach of data of few Indians via WhatsApp through spyware named Pegasus developed and marketed by an Israel based company namely NSO. The news also reported about a lawsuit filed by WhatsApp on 31-10-2019 in a Court at California, USA alleging that the Israeli NSO Group had targeted some 1,400 WhatsApp users globally with this spyware and had violated US and California laws as well as WhatsApp’s terms-of-service. The news report conveyed that more than 100 persons in India might have been affected by this Spyware. It has also been alleged by WhatsApp in their submission filed before the Court that the NSO Group has sold Pegasus spyware to government and private agencies.

In this matter, Ministry of Electronics & Information Technology (MeitY) took cognizance of the news reports and sought a report from the WhatsApp through an email sent to them on 1st November and seeking WhatsApp response by 4th November. WhatsApp sent a mail on 2nd November 2019 communicating the aspects relating to the exploitation of a vulnerability in their platform by spyware called Pegasus, developed by Israeli agency named NSO. As per WhatsApp, they had communicated this vulnerability to CERT-In on 20-05-2019 after it was detected and fixed in mid-May 2019.

As per WhatsApp, Pegasus was designed to be installed remotely on mobile devices using the Android, iOS, and BlackBerry operating systems. The NSO/Pegasus exploited vulnerabilities in operating systems and applications and used other malware delivery methods, like spear-phishing messages containing links to malicious code. According to media reports Pegasus could be surreptitiously installed on a victim’s phone without the victim taking any action.

“The Supreme Court has upheld privacy as a fundamental right. But the Supreme Court has also stated that a terrorist has no right to privacy; and the Supreme Court in the same judgment has also stated that a corrupt person has no right to privacy. Therefore, that is our Government’s commitment to the freedom of speech and expression on social media. Technology has brought empowerment. We need to understand that. But while technology creates opportunity, technology also creates challenges, and this privacy was the first challenge which the Supreme Court has already held. But, one thing we all need to understand. We all work under the overarching system of our Constitution where fundamental right freedoms are there, but, it is also subject to reasonable restrictions. Article 19(2) to (6) clearly says that in the interest of sovereignty and integrity of India, public order, friendly relations with foreign country, these can be reasonably controlled”.

“It is a coincidence that when the Government of India is pressing for traceability of offensive messages, America, Australia and England are joining that battle. Then suddenly a case is filed. We have not been given any name till date. We have given notice to CERT-In and sent a notice to them again. They have expressed their regret. We have said that we will audit your entire processes. We have also sent a notice to the NSO. A fight is going on in the US between The NSO and Whats App. It is their private battle where coincidentally names have come, including some of Indians.

The I.T. Act has a provision in which anyone can complain if he wants. Which has a fine of five lakh and a provision of three years’ imprisonment. Not even a single FIR has been filed till date. No complaint is made in the IT Ministry till date by anyone. But suddenly we find that the names come in the media and thereafter it becomes a political issue.

WhatsApp has not given us 121 names yet. Our view is very clear that whoever has a complaint, should file a case. The Government of India will help in that inquiry. But Government should not be involved into any phishing inquiry.


Rajya Sabha

Legislation UpdatesStatutes/Bills/Ordinances

Lok Sabha passed the National Capital Territory of Delhi (Recognition of Property Rights of Residents in Unauthorised Colonies) Bill, 2019.

Purpose of the Bill

It provides special provisions for the National Capital Territory of Delhi for recognising the property rights of resident in unauthorised colonies by securing the rights of ownership or transfer or mortgage in favour of the residents of such colonies
who are possessing properties on the basis of Power of Attorney, Agreement to Sale, Will, possession letter or any other documents including documents evidencing payment of consideration and for the matters connected therewith or incidental thereto.

Few of the important definition laid down under the bill are:

  • “resident” means a person having physical possession of property on the basis of a registered sale deed or latest Power of Attorney, Agreement to Sale, Will, possession letter and other documents including documents evidencing payment of consideration in respect of a property in unauthorised colonies and includes their legal heirs but does not include tenant, licensee or permissive user.
  • “unauthorised colony” means a colony or development comprising of a contiguous area, where no permission has been obtained for approval of layout plan or building plans and has been identified for regularisation of such colony in pursuance to the notification number S.O. 683(E), dated the 24-03-2008 of the Delhi Development Authority, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (ii), dated the 24-03- 2008.

*Please follow the link to read the bill — National Capital Territory of Delhi (Recognition of Property Rights of Residents in Unauthorised Colonies) Bill, 2019.

Legislation UpdatesStatutes/Bills/Ordinances

The Lok Sabha passed the Special Protection Group (Amendment) Bill, 2019, after negating all the proposed amendments today.

Read below to know the discussion on the above:

Initiating the debate on the Special Protection Group (Amendment) Bill, 2019 today in the Lok Sabha, Union Home Minister Shri Amit Shah said that SPG shall provide proximate security to the Prime Minister and his immediate family members residing with him at his official residence. The Bill says that family members of a former Prime Minister who reside with him at his allotted accommodation will get security cover of the SPG only for five years, from the date he/she ceases to hold the office of Prime Minister.

Replying to the debate, the Home Minister noted that there is a perception in the country that the amendment in SPG Act is only for the purpose to remove the SPG security cover for the Gandhi family. Contrary to this, the change of the security cover has been done only on the basis of yearly security threat perception review by the government. Such a security review has been a part of the original act, he added.

Shri Shah emphasized that the security cover of the Gandhi family has not been reduced or taken away, rather it has just been changed from SPG cover to Z Plus security cover by the CRPF, along with ASL and ambulance, across the country. The level of the security cover has been maintained and not even one security personnel has been reduced. He also said that the SPG security cover is being formed by the same security personnel who comprise of the Z plus security cover.

Shri Shah informed that based on the recommendations of the Birbal Nath committee report, SPG came into existence in 1985. From 1985 to 1988, SPG was governed by an Executive Order and only in 1988 the SPG Act came into existence to provide security to the Prime Minister and his/her family.

Shri Shah said that the SPG Act was enacted in 1988 to provide for the constitution and regulation of the SPG as an armed force to provide proximate security to the Prime Minister and his/her immediate family members. Amendments to the Act were effected in 1991, 1994, 1999 and 2003 and today a further amendment is being brought to revert back to the original spirit of the Act.

Shri Shah stated that the previous amendments to the 1988 Act have been carried out each time to provide security cover only to one family. According to the original Act, SPG is a specialised force to provide comprehensive security cover to the Prime Minister of the country and not a particular family. SPG doesn’t only provide physical security, but it takes care about protection of Prime Minister’s office, his/her communication systems, foreign tours and issues pertaining to his/her health and well being.

Dismissing the charge of vindictiveness for removal of SPG cover of Gandhi family, Shri Shah stated that such security cover reviews have happened in the past with respect to ex prime ministers, including Shri P.V. Narasimha Rao, Shri I.K. Gujaral, Shri Chandra Shekhar, Shri H.D. Deve Gowda and Dr. Manmohan Singh, but there was no such opposition ever when SPG cover was withdrawn. The Home Minister said that the Government is committed to secure each citizen of the country.

Shri Shah further stated that the Modi government never takes decision of providing security cover on the basis of vendetta politics but on scientific threat analysis for a particular individual. He also said that security cover has been provided to members of all political parties based on individual case based threat analysis. Security cover must not be treated as a status symbol by individuals. The security cover meant specifically for the Prime Minister, must not be enjoyed by any other individual. Moreover, the three protectees of the Gandhi family who have been specially mentioned here, have been on many trips without informing SPG, the Home Minister pointed out.

Talking about the rationale behind bringing the amendment, Shri Shah informed the House that in the Act, there is no cut off period for providing the SPG protection to former Prime Ministers or members of their immediate families. Thus, the number of individuals to be provided SPG cover can potentially become quite large. In such a scenario, there can be severe constraint on the resources, training and related infrastructure of SPG. This can also impact the effectiveness of SPG in providing adequate cover to the principle protectee, the Prime Minister in office.

Shri Shah said that the main aim of bringing this amendment is to make SPG more efficient. This would ensure that no omission happens in carrying out its core mandate, as the security of the Prime Minister, as Head of the Government, is of paramount importance for Government, governance and national security. The Bill says that when the proximate security is withdrawn from a former Prime Minister, such proximate security shall also stand withdrawn from members of his or her immediate family.

*Please follow the link to read the Bill —Special Protection Group (Amendment) Bill, 2019


Ministry of Home Affairs

[Source: PIB]

[Press Release dt. 27-11-2019]

Hot Off The PressNews

List of Bills for the Winter Session:

Hot Off The PressNews

The First Session of the Parliament after the 2019 General Elections, the most productive session in the longest time was conducted. In total 30 Bills have been passed this session in 35 sittings.

Bills passed by both the houses of the Parliament are listed below:

  1. The Special Economic Zones (Amendment) Bill, 2019
  2. The Jammu and Kashmir Reservation (Amendment) Bill, 2019
  3. The Homoeopathy Central Council (Amendment) Bill, 2019
  4. The Central Educational Institutions (Reservation in Teachers’ Cadre) Bill, 2019
  5. The Indian Medical Council (Amendment) Bill, 2019
  6. The Dentists (Amendment) Bill, 2019
  7. The Aadhar and Other Laws (Amendment) Bill, 2019
  8. The Central Universities (Amendment) Bill, 2019
  9. The National Investigation Agency (Amendment) Bill, 2019
  10. The New Delhi International Arbitration Centre Bill, 2019
  11. The Appropriation (No. 2) Bill, 2019
  12. The Finance (No. 2) Bill, 2019
  13. The Protection of Human Rights (Amendment) Bill, 2019
  14. The Right to Information (Amendment) Bill, 2019
  15. The Banning of Unregulated Deposit Schemes Bill, 2019
  16. The Muslim Women (Protection of Rights on Marriage) Bill, 2019
  17. The Companies (Amendment) Bill, 2019
  18. The Insolvency and Bankruptcy Code (Amendment) Bill, 2019
  19. The Arbitration and Conciliation (Amendment) Bill, 2019
  20. The Protection of Children from Sexual Offences (Amendment) Bill, 2019
  21. The Unlawful Activities (Prevention) Amendment Bill, 2019
  22. The Codes on Wages, 2019
  23. The Repealing and Amending Bill, 2019
  24. The Airport Economic Regulatory Authority of India (Amendment) Bill, 2019
  25. The Motor Vehicles (Amendment) Bill, 2019
  26. The National Medical Commission Bill, 2019
  27. The Consumer Protection Bill, 2019
  28. The Public Premises (Eviction of Unauthorised Occupants) Amendment Bill, 2019
  29. The Jammu and Kashmir Reorganisation Bill, 2019.
  30. The Supreme Court (Number of Judges) Amendment Bill, 2019

Legislations relating to almost all walks of socio and economic activities have been passed. 30 Bills have been passed by both the Houses of Parliament in this Session which is a record in single first/effective Session after the constitution of new Lok Sabha.

Most important business transacted during this Session is the abrogation of certain provisions from Article 370 and Presidential Orders thereunder.  This will ensure equal opportunities to all sections of Society in Jammu & Kashmir particularly with the restoration of applicability of the provisions of the Constitution of India and all socio-economic legislations thereby ensuring rule of law and equity.  Further, for ensuring better administration and for curbing terrorism, the State of Jammu & Kashmir has been reorganized with the formation of two Union Territories – Jammu &Kashmir and Ladakh. 

Case BriefsForeign Courts

“Rule of Law dictates that every act that is not sanctioned by the law and every act that violates the law be struck down as illegal.”

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Seven-Judge Bench comprising of H.N.J. Perera, CJ and Buwaneka Aluwihare, Sisira J. De Abrew, Priyantha Jayawardena, Prasanna Jayawardena, Vijith K. Malalgoda and Murdu N. B. Fernando, JJ. hearing a batch of fundamental right applications, unanimously held President Maithripala Sirisena’s November 2018 decision to the Parliament and hold snap elections as unconstitutional, thus ending a seven-week long constitutional crisis.

The island nation had been reeling under political crisis which began on October 26, 2018, when President Sirisena fired Prime Minister Ranil Wickremesinghe and replaced him with Mahinda Rajapaksa, a controversial former President accused of committing serious war crimes. However, when Rajapaksa could not muster a majority in Parliament, Sirisena sacked the legislature two years ahead of schedule.

In the instant petition, Petitioner, a member of the Parliament, prayed for a declaration that President Sirisena’s proclamation dated 09-11-2018 suspending the Parliament infringed his fundamental rights under Article 12(1) of the Constitution of Sri Lanka. It was contended that the said action was ex facie unlawful and in violation of Article 70 (1) of the Constitution as per which the President expressly prohibited from dissolving Parliament until the expiration of a period not less than four years and six months from the date appointed for its first meeting.

The respondent raised an objection as to the jurisdiction of Court to hear the petitions on the ground that the petitioners had not followed the specific procedure to challenge the abuse of powers by the President, viz., impeachment. The said objection was dismissed for being logically flawed as in view of dissolution, no Parliament existed in which a motion for impeachment could have been brought.

The argument regarding immunity to President’s action was dismissed stating that “the submission that…..President, in his capacity as the Head of State, has a species of inherent unrestricted omnipotent power which is akin to royal prerogative power held by a monarch, has to be emphatically rejected.”

The Court held that President’s power of summoning, proroguing and dissolving Parliament referred to in Article 33(2)(c) of the Constitution could be exercised only in conformity with Article 70 of the Constitution. Article 70 clearly stipulated that the President shall not dissolve Parliament during the first four and a half years from the date of its first meeting unless he is requested to do so by a resolution passed by not less than two-thirds of the members of Parliament.

In view of the above, it was held that the impugned proclamation had been issued outside legal limits and violated petitioner’s rights, both in his capacity as a parliamentarian and in the capacity of a citizen. As such, the proclamation was quashed and declared void ab initio.[Rajavarothiam Sampanthan v. Attorney General, 2018 SCC OnLine SL SC 74, decided on 13-12-2018]