Daily Current Affairs for UPSC IAS | 10th January 2022

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1.  Some Raj Bhavans are on the war path| Who should be the Chancellor?

UPSC Syllabus: Mains: GS Paper 2: Polity & Governance
Sub Theme:  Role of Governor | UPSC

Context: Both Articles highlight about the confrontation of the Governor with the elected government of states of Maharashtra, Kerala, Rajasthan, Tamil Nadu and West Bengal.

Maharashtra

In Maharashtra the Governor refused to accept the date of election of the Speaker recommended by the State government. Whereas in the other states mentioned above, there is a constant tussle on Governors acting as ex-officio Chancellors of State Universities.

  • Article 178 – Every Legislative Assembly of a State shall, as soon as may be, choose two members of the Assembly to be respectively Speaker and Deputy Speaker thereof and, so often as the office of Speaker or Deputy Speaker becomes vacant, the Assembly shall choose another member to be Speaker or Deputy Speaker, as the case may be.

Kerala

The Governor has publicly stated that he was under pressure from the Kerala Government to reappoint the Vice Chancellor of Kannur University. The Governor also said that it was wrong on his behalf to yield to government’s pressure.

  • Under the procedure followed in all Assemblies, the government fixes the date and conveys it to the Secretary of the Assembly who forwards it to the office of the Governor for his signature. After the date is formally approved by the Governor (which he is duty bound to do) the members are informed about it.
  • Gopalakrishnan vs Chancellor, University of Kerala – Kerala High Court has stated that the Governor of Kerala needs to apply his mind independently to the case of reappointment, evaluate the performance of the Vice Chancellor and fully satisfy himself about the merit of the appointee before signing the appointment order.

Tamil Nadu

  • State Assembly adopted a Bill to scrap the National Eligibility-cum-Entrance Test as the sole guiding factor for admission to undergraduate medical courses.
  • However, the Bill was reserved by the Governor for President’s consideration under Article 201 has not been forwarded to the President even after three months.
  • In this backdrop, the Chief Minister of TN has announced that he is exploring options to empower itself to make the appointment of vice chancellors of universities, taking the powers away from the Governor-Chancellor.
  • Even Maharashtra legislature has adopted a Bill curtailing the powers of the Governor in the appointment of vice chancellors in State universities.
  • Even West Bengal government is considering a proposal to make the Chief Minister Chancellor of all State universities.

Rajasthan

  • Non-acceptance of the advice of the Council of Ministers was witnessed regarding summoning of State Assembly under Article 174.
  • Rajasthan Governor returned Chief Minister Ashok Gehlot’s proposal to convene an Assembly session in July 2020 but convened it later in August 2020. So, the question which arose was – whether Governor has discretionary power to summon the house as per Article 174 of the Indian Constitution.

Governor’s Discretionary Powers & Need for Neutrality

Article 163 – Council of Ministers to aid and advise Governor – There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.

Discretionary Powers of Governor are:

  • Reserve any Bill for the consideration of the President under Article 200
  • To appoint the Chief Minister of State under Article 164(1) including inviting the leader of the single largest party in case of a hung verdict to prove majority on the floor of the House.
  • To dismiss the ministry as the Chief Minister and other Ministers shall hold office during the pleasure of the Governor under Article 164(1)
  • Governor’s report under Article 356 in case of failure of Constitutional machinery in States.
  • Governor’s responsibility for certain regions such as the Tribal Areas in Assam and responsibilities placed on the Governor under Article 371A (Nagaland), 371C (Manipur), 371H (Arunachal Pradesh).

Nabam Felix judgment

  • Supreme Court decided that Governor can summon, prorogue and dissolve the House, only on the aid and advice of the Council of Ministers with the Chief Minister as the head and not at his own.
  • The Court gave its decision based on discussion in Constituent Assembly debates whereby it was finalised not to give discretionary power to Governor under Article 174.

Shamsher Singh v. State of Punjab (1974)

  • Supreme Court said: “The Governor has no right to refuse to act on the advice of the Council of Ministries. Such a position is antithetical to the concept of ‘responsible government’.”

B.P. Singhal v. Union of India (2010)

  • Five Judge Bench of Supreme on removal of governors mentioned about the dual role of governor: 1. Agent of the Centre & 2. Head of the state.
  • SC also held that there may be instances of conflict between centre and states where the governor has to act neutrally.

Need for Politically Neutral Governor – Sarkaria Commission’s Recommendation

  • Sarkaria Commission on Centre-State Relations, the National Commission to Review the Working of the Constitution and Punchhi Commission has reiterated the need for politically neutral governor.
  • Neutrality of governor is best displayed when he uses his discretionary powers as per the constitution. However, the use of discretionary power by the Governor also leaves certain space for its misutilisation.
  • Sarkaria Commission has recommended the following criteria which must be considered while appointing Governors of state:
  • He should be eminent in some walk of life.
  • He should be a person from outside the State.
  • He should be a detached figure and not too intimately connected with the local politics of the State; and
  • He should be a person who has not taken too great a part in politics generally and particularly in the recent past.
  • In selecting a Governor in accordance with the above criteria, persons belonging to the minority groups should continue to be given a chance.

S.R. Bommai v Union of India (1994)

  • SC held explicitly that in situations where there is a hung assembly (where no political party has obtained a clear majority of seats), the final decision rests not with the various feuding parties but with the concerned legislature through a “floor” test.
  • This case allows the Supreme Court to investigate the reasons which forms the basis of a Governor’s report.

Discretion of governor based on constitutional limitations  

Discretion given to governor is based on constitutional limitations and the Governor has to follow certain rules as specified by Sarkaria Commission which suggested that in choosing a Chief Minister, the Governor should be guided by the following principles:

  • The party or combination of parties that command the widest support in the Legislative Assembly should be called to form the government.
  • The Governor’s task is to see that a government is formed — and not to try to form a government that will pursue policies that he approves.
  • If no party has a majority, the Governor has to invite:
  1. a pre-poll alliance,
  2. the largest single party that is able to gain majority support,
  3. a post-election coalition that has the required members,
  4. a post-election coalition in which partners are willing to extend outside support.
  • The Commission recommended that whoever is appointed as the Chief Minister, must seek a vote of confidence in the Assembly on the floor of the House within 30 days of taking over.
  • The Governor should not resort to mechanisms where determining of majority of the government is done outside the assembly.

Power of Governor under Article 174 to Summon the House 

Article 174 – Sessions of the State Legislature, prorogation and dissolution

A 174 (1) – The Governor shall from time to time summon the House or each House of the Legislature of the State to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session.

A 174 (2) – The Governor may from time to time— (a) prorogue the House or either House; (b) dissolve the Legislative Assembly.

The problem with Article 174 arises with the phrase “….as he thinks fit….” Now this phrase can be seen in the context of Article 163 which provides for discretionary power of the Governor.

 Article 163 – Council of Ministers to aid and advise Governor

A 163 (1) – There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.

Nabam Rebia and Bamang Felix vs Deputy Speaker, the Arunachal Pradesh Assembly – July 2016

  • It is settled law that the Governor cannot refuse the request of the Cabinet to call for a sitting of the House for legislative purposes or for the chief minister to prove his majority. In fact, on numerous occasions, including in the 2016 Uttarakhand case, the court has clarified that when the majority of the ruling party is in question, a floor test must be conducted at the earliest available opportunity.
  • In 2016, a Constitution Bench of the Supreme Court in Nabam Rebia and Bamang Felix vs Deputy Speaker, the Arunachal Pradesh Assembly case, expressly said that the power to summon the House is not solely vested in the Governor.

Supreme Court’s Observation in Bamang Felix Case – Referred Constituent Assembly Debates

  • Referring to discussions in the Constituent Assembly, the court noted that the framers of the Constitution expressly and consciously left out vesting powers to summon or dissolve the House solely with the Governor.
  • SC discussed that draft Article 153 (which later became Article 174 in the present constitution), which dealt with the powers of the Governor, was substantially altered to indicate that the constitution framers did not want to give Governors the discretion.
  • Draft Article 153 (3) provided that the functions of the Governor with reference to the power to summon and dissolve the House or Houses of the State Legislature “… shall be exercised by him in his discretion,”
  • So, as per the original draft Article 153 – it was clear that Governor did enjoy discretionary power to summon or dissolve the House or Houses of the State Legislature, without any aid or advice of his Council of Minister.
  • However, when Draft Article 153 was renumbered as Article 174, sub-article (3) contained in original draft of Article 153 was omitted which dealt with discretionary power of Governor to summon or dissolve the House or Houses of the State Legislature, without any aid or advice of his Council of Minister.
  • After debating the intention of the framers, the court concluded that “the only legitimate and rightful inference, that can be drawn in the final analysis is, that the framers of the Constitution altered their original contemplation, and consciously decided not to vest discretion with the Governor, in the matter of summoning and dissolving the House, or Houses of the State Legislature, by omitting sub-article (3) of draft Article 153, which authorized the Governor to summon or dissolve, the House or Houses of Legislature at his own discretion.
  • Thus, the Supreme Court in Nabam Felix judgment decided that Governor can summon, prorogue and dissolve the House, only on the aid and advice of the Council of Ministers with the Chief Minister as the head. And not at his own.

Idea of Detachment for the Governor

  • The Governor is a high constitutional authority. He needs to function within the four walls of the Constitution and be a friend, philosopher and guide to his government.
  • The Constitution does not allow him to be a parallel government nor does it make him personally responsible for his actions as Governor.
  • That such confrontations take place only in Opposition-ruled States shows that political expediency has overtaken constitutional propriety.
  • Wading through the Constituent Assembly debates, one comes across these wise words of Pandit Thakur Das Bhargava, a conscientious member of the Assembly: “Governor will be a man above party and he will look at the minister and government from a detached stand point”. 

 

2.  Control rather than privacy 

UPSC Syllabus: Mains: GS Paper 2- Polity & Governance
Sub Theme:  Data Privacy | UPSC

Context: The article has raised doubts over the Report of Joint Parliamentary Committee on Data Protection Bill and has suggested that the Committee has raised more doubts rather than solving them.

Key Terms Used in the Data Protection Bill

  • Data Principal means the natural person to whom the personal data relates.
  • Data Processor means any person, including the State, a company, any juristic entity or any individual, who processes personal data on behalf of a data fiduciary.
  • Personal Data means data about or relating to a natural person who is directly or indirectly identifiable, having regard to any characteristic, trait, attribute or any other feature of the identity of such natural person, whether online or offline, or any combination of such features with any other information, and shall include any inference drawn from such data for the purpose of profiling.
  • Non-Personal Data means the data other than personal data.
  • Harm includes— (i) bodily or mental injury; (ii) loss, distortion or theft of identity; (iii) financial loss or loss of property; (iv) loss of reputation or humiliation; (v) loss of employment; (vi) any discriminatory treatment; (vii) any subjection to blackmail or extortion; (viii) any denial or withdrawal of a service, benefit or good resulting from an evaluative decision about the data principal; (ix) any restriction placed or suffered directly or indirectly on speech, movement or any other action arising out of a fear of being observed or surveilled; or(x) any observation or surveillance that is not reasonably expected by the data principal.

Concerns Raised in the Provisions of the Data Protection Bill

  1. Clause 12
  • Clause 12 of the Bill which mentions about the grounds for processing of personal data without consent in certain cases.
  • The personal data may be processed if such processing is necessary –
  • for the performance of any function of the State authorised by law for –
  • the provision of any service or benefit to the data principal from the State
  • the issuance of any certification, licence or permit for any action or activity of the data principal by the State.
  • under any law for the time being in force made by the Parliament or any State Legislature.
  • for compliance with any order or judgment of any Court or Tribunal in India.
  • to respond to any medical emergency involving a threat to the life or a severe threat to the health of the data principal or any other individual.
  • to undertake any measure to provide medical treatment or health services to any individual during an epidemic, outbreak of disease or any other threat to public health; or
  • to undertake any measure to ensure safety of, or provide assistance or services to, any individual during any disaster or any breakdown of public order.

Concerns Raised

  • Clause 12 is an umbrella clause that does not specify which ministries or departments will be covered.
  • The government can use these provisions as a means of control and surveillance.
  1. Clause 35 of PDP 2019
  • Where the Central Government is satisfied that it is necessary or expedient
  • in the interest of sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order; or
  • for preventing incitement to the commission of any cognizable offence relating to sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order

it may, by order, for reasons to be recorded in writing, direct that all or any of the provisions of this Act shall not apply to any agency of the Government in respect of processing of such personal data, as may be specified in the order subject to such procedure, safeguards and oversight mechanism to be followed by the agency, as may be prescribed.

Concerns Raised

  • It exempts agencies of Union Government from the application of the law for processing of personal data on grounds of “public order”, “sovereignty”, “friendly relations with foreign states” and “security of the state”. However, such exemption must be in writing for the purpose of official records.
  • Bill creates two Parallel Universes – one for the private sector where it would apply with full rigour and one for the Government providing exemption, carve outs and escape clauses.
  1. Clause 86 – DPA bound by directions of Central Government

The Central Government may, from time to time, issue to the Authority such directions as it may think necessary in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order.

Concerns Raised

  • Clause 86 makes DPA duty-bound to follow the orders of the government. This weakens its independence and gives the government excessive control.
  • Appointment by the executive which goes against the Bill proposed by Justice B.N. Srikrishna which proposed a judicial overlook.
  • Appointment of DPA violates the principle of federalism as there must be State Data Protection Authority as regarding data flow from states to centre, States are key stakeholders in the process. Even if the proposed central authority issues directions to allow processing of data on the grounds of ‘public order’, it is important to note that ‘public order’ is an entry in the State List.
  • If the pith and substance of the legislation are related to the State, then it has to be monitored by the State Data Protection Authority.
  1. Explanation to Clause 91
  • Non-Personal Data means the data other than personal data.

Concerns Raised

  • By including non-personal data within the ambit of the Bill, the Joint Committee has put a huge compliance burden on the economy.
  • This will hit the MSME sector and small businesses harder as technical processes involving data-sharing are very expensive.
  • The government-constituted panel headed by S. Gopalkrishnan also opposed the idea of including non-personal data in the Bill. Mandatory data localisation, it is estimated, will squeeze the economy by 0.7-1.7%.
  • This may also invite similar measures by other sovereign countries which will hamper smooth cross-border flow of data.

 

3.  A Bill that could alter the mediation landscape

UPSC Syllabus: Mains: GS Paper 2- Polity & Governance
Sub Theme:  Importance of Mediation in Resolving Disputes | UPSC

Context: Parliament has introduced the Mediation Bill 2021 which aims to promote and facilitate mediation, especially institutional mediation, for resolution of disputes, commercial or otherwise, enforce mediated settlement agreements, provide for a body for registration of mediators, to encourage community mediation and to make online mediation as acceptable and cost effective process.

Difference between Arbitration, Mediation & Conciliation

· Arbitration, mediation, and conciliation are the main Alternative Dispute Resolution Mechanism which is generally adopted to resolve disputes in an informal manner.

· The primary difference between arbitration, conciliation and Mediation is based on the role played by the third party who is selected by the parties seeking a settlement, in consensus.

· Arbitration is the process by which parties select an independent person, who renders a decision regarding the case.

· Conversely Conciliation attempts to make parties come to an agreement about the problem at hand.

· In Mediation, the mediator acts as a facilitator who helps the parties in agreeing.

Benefits of Mediation

  • Mediation results in amicable resolution of disputes in civil, commercial, family and matrimonial matters and fosters collaborative approach, reduces the burden on the courts, and preserves relationships amongst disputants.
  • Therefore, bringing a comprehensive mediation law and providing for online mediation may serve the interests of all the stakeholders as effective alternative mechanism for resolving disputes. 3. The Bill covering the various aspects of mediation.
  • The Bill aims to:
  • Promote, encourage and facilitate mediation especially institutional mediation for resolution of commercial disputes.
  • Enforce domestic and international mediation settlement agreements.
  • Provide for a body for registration of mediators
  • Encourage community mediation
  • Make online mediation as an acceptable and cost-effective process.

Important Highlights of the Bill

  • Definition – Mediation shall be a process, whether referred to by the expression mediation, pre-litigation mediation, online mediation, community mediation, conciliation or an expression of similar import, whereby party or parties, request a third person referred to as mediator or mediation service provider to assist them in their attempt to reach an amicable settlement of a dispute.
  • Mediator means a person who is appointed to be a mediator to undertake mediation, and includes a person registered as mediator with the Council.
  • “Institutional Mediation” means mediation conducted under the aegis of a mediation service provider.
  • Mediation Service Provider means a body or organisation that provides for the conduct of mediation under this Act and rules and regulations made thereunder, and are recognised by the Council.
  • Court Annexed Mediation means mediation including pre-litigation mediation conducted at the mediation centres established by any court or tribunal.
  • “International Mediation” means mediation undertaken under this Act and relates to a commercial dispute arising out of a legal relationship, contractual or otherwise, under any law for the time being in force in India, and where at least one of the parties, is:
  • an individual who is a national of, or habitually resides in, any country other than India.
  • a body corporate including a Limited Liability Partnership of any nature, with its place of business outside India.
  • an association or body of individuals whose place of business is outside India.
  • the Government of a foreign country.
  • Enforcement – A mediated settlement agreement resulting from mediation signed by the parties and authenticated by the mediator shall be final and binding on the parties and persons claiming under them respectively. The mediated settlement agreement shall be enforced in accordance with the provisions of the Code of Civil Procedure, 1908, in the same manner as if it were a judgment or decree passed by a court.
  • Mediation Council of India – The Central Government shall establish a Council to be known as the Mediation Council of India to regulate Mediation activities in India. The Council shall comprise of a Chairperson, two full time members, three Members ex-officio and a Part time Member.
  • Disputes or matters not fit for mediation – A mediation under this Act shall not be conducted for resolution of any dispute or matter contained in the indicative list under the First Schedule. However, a Court may refer any dispute to mediation relating to compoundable offences or matrimonial offences connected with or arising out of civil proceedings between the parties.
  • Compoundable offences are those which can be compromised, i.e. the complainant can agree to take back the charges levied against the accused, whereas, non – compoundable offences are the more serious offences in which the parties cannot compromise.

Certain Provisions in the Bill may improve Law & Order situation

  • Section 7 of the Bill says that courts will be competent to refer any dispute to mediation relating to compoundable offences or matrimonial offences connected with or arising out of civil proceedings between the parties.
  • Second, Section 44 of the Bill provides for ‘any dispute likely to affect peace, harmony and tranquillity amongst the residents or families of any area or locality’, to be settled through community mediation. Any settlement so arrived at, however, shall not be enforceable as a judgment or decree of a civil court.
  • Third, the provisions of the Act shall not have overriding effect, inter alia, on the Maintenance and Welfare of Parents and Senior Citizen Act, 2007 and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
  • Though the proposed law primarily intends to resolve civil and commercial disputes through mediation, it has ample scope to relieve some of the pressure on law enforcement agencies.
  • Thus, the policy of the law is to promote friendliness between the parties so that peace between them is restored. A case may be compounded any time before the sentence is pronounced.
  • Therefore, the proposed law of mediation, that has the mechanism of not only preventing the breakdown of law and order through community intervention but also the competence to smoothen the route to compounding of certain criminal offences, may ultimately relieve some of the pressure on the police.

 

4.  Former RBI Governor Urjit Patel joins Beijing­ based AIIB

UPSC Syllabus: Prelims: International Institutions
Sub Theme:  About AIIB | UPSC

Previous Year Prelims Questions

The ‘Fortaleza Declaration’, recently in the news, is related to the affairs of ( Prelims 2015)

  1. ASEAN
  2. BRICS
  3. OECD
  4. WTO

With reference to Asian Infrastructure Investment Bank (AIIB), consider the following statements: ( Prelims 2019)

  1. AIIB has more than 80 member nations.
  2. India is the largest shareholder in AIIB.
  3. AIIB does not have any members from outside Asia.

Which of the statements given above is/are correct?

  1. 1 only
  2. 2 and 3 only
  3. 1 and 3 only
  4. 1, 2 and 3

ASIAN INFRASTRUCTURE INVESTMENT BANK

  • China exhibits a leadership role through the AIIB in Asia and beyond wherein AIIB supports China’s banking policy to finance overseas investment projects and also through the AIIB, the Chinese companies get an international platform to globalise themselves.
  • AIIB’s outbound investments help China overcome domestic inefficiency by having its surplus capacity in key sectors like solar energy, cement, steel and construction to be exported to third countries under the purview of projects of AIIB and also increase thee overseas market share of Chinese state-owned enterprises (SOEs).
  • Geo-politically, China’s efforts to establish the AIIB should not necessarily be seen in isolation from its global agenda of establishing China as the center of global economic and political decision-making.

FEATURES OF AIIB

  • Asian Infrastructure Investment Bank with HQ in Beijing, China is a multilateral development institution that was formally established with the lead of China with world- wide membership. It has membership for members across the globe.
  • AIIB offers an additional platform as an infrastructure financing institution to the already existing global financial institutions. It can also finance projects through making loans, investing in equity capital of an enterprise, and obligating through primary and secondary guarantor.
  • The AIIB follows a structured mechanism with China possessing the largest voting rights including an effective veto power. After China, India possesses the largest voting right in AIIB.
  • AIIB allows co-financing of projects with other leading financial institutions such as the ADB, World Bank and the European Bank for Reconstruction and Development. The lending pattern within AIIB is in US dollars.
  • India is the largest recipient of finds from AIIB, and thereby also makes AIIB unique wherein it is the only multilateral bank in which the one of the largest investors is also one of the largest recipients.
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