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From the “Congress Bureau of Investigation” and a “caged parrot” to a part of the BJP’s “jamai” (son-in-law) trinity (the other two being Income Tax and Enforcement Directorate) — the Central Bureau of Investigation, the country’s premier anti-corruption agency, has acquired many an epithet for its reputation of acting at the behest of who pulls its political strings at the Centre.
No wonder then that in the past 18 years, spanning the governments of rivals Congress and BJP, of the close to 200 key politicians the CBI has booked, arrested, raided or questioned, over 80 per cent have been from the ranks of the Opposition.
A trend that’s got sharply more pronounced since the NDA took charge in 2014 — reveals an investigation by The Indian Express of court records, official documents, agency statements and reports.
Under the Congress-led UPA’s 10 years at the helm (2004-2014), at least 72 political leaders came under the CBI scanner and 43 of them (60 per cent) were from the Opposition.
Under the BJP-led NDA-II’s eight years in power so far, even as the Opposition’s political footprint has shrunk, at least 124 prominent leaders have faced CBI probes and as many as 118 of them are from the Opposition — that’s 95 per cent.
And just as in the UPA, when a leader switches sides, the CBI case against him is relegated to the backburner.
The entire list of 72 from the UPA and 124 leaders from the NDA in the CBI net has been compiled and published on indianexpress.com. Leaders have been listed under the political parties to which they belonged, along with the posts they held, when the CBI initiated action against them.
Beyond these numbers, the timing of the CBI’s raids under the UPA and the NDA-II have been repeatedly raised by Opposition leaders, both inside Parliament and in protests outside.
In 2013, two days after DMK walked out of the UPA, the CBI raided party leader and current Tamil Nadu Chief Minister M K Stalin’s house in Chennai in a case related to the import of luxury cars.
According to officials at the time, the Department of Revenue Intelligence (DRI) had provided information about the case involving 33 cars to CBI a month before the raid — but the agency registered a case only after the DMK broke its alliance with the Congress.
Meaningful chance to those on Death Row: Supreme Court refers case to 5-judge bench (Page no. 3)
(GS Paper 2, Judiciary)
Saying that a “uniform approach” is needed on “granting real and meaningful opportunity” to convicts on Death Row, and noting “a clear conflict of opinions” between some of its earlier decisions on granting hearing in such cases, the Supreme Court on Monday referred the matter to a five-judge Constitution bench.
Recalling the court’s earlier rulings on the issue of death sentence, the bench said: “The common thread that runs through all these decisions is the express acknowledgment that meaningful, real and effective hearing must be afforded to the accused, with the opportunity to adduce material relevant for the question of sentencing”.
What is conspicuously absent is consideration and contemplation about the time this may require. In cases where it was felt that real and effective hearing may not have been given (on account of same day sentencing), this court was satisfied that the flaw had been remedied at the appellate (or review stage), by affording the accused a chance to adduce material, and thus fulfilling the mandate of Section 235(2),” said the bench.
Section 235(2) of the Criminal Procedure Code says that “if the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360 (order to release on probation of good conduct or after admonition), hear the accused on the question of sentence, and then pass sentence on him according to law”.
The bench, however, pointed out that its May 1980 decision in the Bachan Singh vs State of Punjab case – wherein it had upheld the constitutional validity of death penalty for murder while stating that it will be imposed only in the rarest of rare cases – said “the question of what constitutes ‘sufficient time’ at the trial court stage, in this manner appears not to have been addressed…” and “this, in the court’s considered opinion, requires consideration and clarity”.
Earlier this year, the court, while reducing the death sentence awarded to a Madhya Pradesh man for raping a seven-year-old girl to life imprisonment, had taken on record the report of a “mitigation investigator” who went into the background of the convict.
The top court also registered a suomotu petition titled ‘In re-framing guidelines regarding potential mitigating circumstances to be considered while imposing death sentences’ to streamline the process of considering mitigating circumstances in such matters.
Express Network
Ban part of pattern to marginalise minorities, SC told (Page no. 9)
(GS Paper 2, Polity and Governance)
Muslim appellants who have challenged the Karnataka hijab ban told the Supreme Court on Monday that the “directive” against wearing the apparel in schools is “part of…pattern…to marginalise minority communities”.
“This is not about uniform…by series of acts of commission and acts of omission that have happened, unfortunately…I’m not blaming any individual or anything, but these acts of commission and omission show that there is a pattern to marginalise the minority communities.
Part of this pattern is this directive,” senior advocate Dushyant Dave, representing some of the appellants, told a bench of Justices Hemant Gupta and Sudhanshu Dhulia.
Dave referred to controversies such as “love jihad” and said, “this has to be considered in the light of the kind of atmosphere that we are seeing today, which is going far from being liberal that we have been for 5,000 years”.
He said the Karnataka government circular says that “we are trying to bring unity in the country”, and asked “you want unity, then how is that you are prohibiting a Hindu girl from marrying a Muslim boy? They have fallen in love…”
Dave added, “You have to today ask permission from a District Magistrate. He takes his own sweet time, calling families to find out, everybody puts pressure on family, don’t marry, all kinds of fringe elements will come into play”.
Dave said what was done is “malice in law”. “You are passing this resolution ostensibly saying uniform. Actually it’s for some other purpose. The whole idea is that how do I tell the minority community that you are not allowed to profess your beliefs, your are not allowed to follow your conscience. You will do what I tell you to do.”
Dave said that “just like turban for Sikhs, hijab is important for Muslim women. Nothing wrong with that. It is their faith. Somebody wants to wear tilak, somebody wants to wear a cross, everybody has the right. That is the beauty of social life.”
Justice Dhulia responded, “Nobody is saying that. Even the (High Court) judgment does not (say that).”
Dave said that the Bar Council of India prescribes a dress code for lawyers and asked if the court will stop a lawyer if he comes wearing a cap.
Majority view of larger bench to prevail over smaller bench says SC (Page no. 12)
(GS Paper 2, Polity and Governance)
The Supreme Court ruled that a majority verdict by a larger bench will prevail over even a unanimous decision by a bench of lesser strength, although the number of judges constituting the majority in the former may be less than or equal to the number of judges on the smaller bench.
What this means is that a 4:3 ruling by the court will prevail over a unanimous five-judge bench verdict.
A five-judge Constitution bench presided by Justice Indira Banerjee said this while deciding a clutch of petitions that challenged certain provisions of the Delhi Sales Tax Act, and exceptions provided for tax exemption.
The bench, also comprising Justices Hemant Gupta, Surya Kant, M MSundresh and Sudhanshu Dhulia, said that the court had gone into the issue in its judgment wherein it struck down the Maharashtra government’s decision to provide 16 per cent reservation for members of the Maratha community in jobs and admissions.
The court said that “in view of Article 145(5) of the Constitution, concurrence of a majority of the judges at the hearing will be considered as a judgment or opinion of the court.
It is settled that the majority decision of a Bench of larger strength would prevail over the decision of a Bench of lesser strength, irrespective of the number of judges constituting the majority.
While Justices Banerjee, Surya Kant, Sundresh and Dhulia delivered one verdict, Justice Gupta delivered a separate verdict agreeing with the others and said “…it has been rightly concluded that the numerical strength of the judges taking a particular view is not relevant, but the Bench strength is determinative of the binding nature of the Judgment.”
Editorial Page
Taking of the hijab (Page no. 10)
(GS Paper 2, Polity and Governance)
The custodial death of MahsaAmini, a young woman who was arrested by the morality police in Tehran, has sparked widespread protests in Iran.
Under the scanner are the police who patrol public places to enforce the headscarf law and other Islamic rules. Conversations are also taking place on the situation of women in the Islamic Republic.
Since the Islamic revolution in 1979, women have been required by law to wear a veil covering their head and neck and conceal their hair.
Over the past two decades, however, more and more women in Tehran and other major cities of Iran have been letting strands of hair outside their veil as a form of protest. More recently, some women have been sharing photos that show them taking off headscarves in opposition to the hijab rules.
The struggle against compulsory headscarves first made headlines in December 2017 when a young woman, Vida Movahed, waved her hijab on a stick at Tehran’s Revolution Street.
Then, on July 12, this year – the Hijab and Chastity Day on the Islamic Republic’s calendar — different groups of women took part in a national civil disobedience campaign against the mandatory headgear.
More and more women, many of whom have not experienced the 1979 revolution, have been risking fines and even prison sentences for violating the hijab rules.
The Iranian Revolution, which ended with the victory of the Islamists and the creation of the Islamic Republic, was marked by a noticeable presence of women.
Thousands of young women joined the Islamist and leftist political groups. In his interviews with foreign journalists before returning to Iran, Ayatollah Khomeini praised women for their involvement in the revolution.
Earlier, however, Khomeini had taken a firm stance against the Shah’s “White Revolution” — one of the axes of which was women’s access to the Iranian public space.
Since the beginning of the 20th century, especially during the Constitutional Revolution of 1906-1911, avant-garde Iranian women demanded access to schooling and the right to expression. Before the end of Mohammad Reza Shah Pahlavi’s reign in 1978, 30 per cent of students in Iranian universities were women.
Though many Iranian women were attracted by the revolutionary language of radical Islam in 1979, under the influence of religious intellectuals such as Ali Shariati, the country’s public space became a field of social and political confrontations between the sexes.
In March 1979, after the new Islamic law on veiling at workplaces came into force, massive demonstrations took place in the capital and major cities of Iran.
Thousands of women took to the streets shouting slogans such as: “We did not make the revolution to go backwards.” The demonstrators were attacked and injured by Islamist stormtroopers.
They were not supported by the secular opposition groups, who advised them to remain calm, so as to strengthen the anti-revolutionary forces and imperialists.
Securing basic structure (Page no. 10)
(GS Paper 2, Polity and Governance)
Over the past week, the media has been faithfully reporting proceedings before a Bench of five judges of the Supreme Court as to whether the Constitution 103rd Amendment Act, 2019 violates the “basic structure of the Constitution”. After the hearing is over, the judges will render their decision. But in the meanwhile, here are some ideas about the origin of the Constitution’s “basic structure”.
Courts are empowered under our Constitution to invalidate not only executive orders, but also legislative enactments that violate any part of the Fundamental Rights guaranteed in Part III of the Constitution (Bill of Rights).
But as to whether they are also empowered to adjudicate on the validity of constitutional amendments — passed with the requisite special majority and following the procedure prescribed in Article 368 — the Constitution is silent.
Up to the year 1989, with one single political party almost consistently returned to power at every election, the judges had plumbed the depths of silence in the world’s longest Constitution searching for some limitations on the amending power.
They found none; and they said so, emphatically, in 1951 in a Bench decision of five judges (Sankari Prasad vs. Union of India). Fourteen years later — a different Bench of five judges — said no again (Sajjan Singh vs. State of Rajasthan), but this time with some hesitancy.
Ultimately, in 1973 in KesavanandaBharati, a larger Bench of 13 judges sat for the longest time (several months) listening to arguments on what was described as “an issue of grave moment, not only to the future of this country but to the future of democracy itself!”
In a fractured verdict, by a 7:6 majority, it held that though under Article 368 Parliament’s power to amend the Constitution was plenary, extending to each and every article of the Constitution including the articles enumerated in the Fundamental Rights Chapter, no amendment was permissible if it altered “the basic structure or framework of the Constitution”.
By reading implied limitations in the amending power, the Supreme Court established a new precedent (overriding two prior judicial precedents).
But the majority view was roundly criticised. It was said that by propounding the basic structure theory, the guardians of the Constitution had at one bound become guardians over the Constitution — constitutional adjudicators had assumed the role of constitutional governors!
With the Congress party having secured an overwhelming majority in Parliament (after the general elections of 1971), the country might have moved into a period of grave constitutional crisis.
But then, fortuitously, fate intervened: On June 12, 1975, in the High Court of Allahabad, Indira Gandhi lost the election petition filed against her by Raj Narain (he had contested against her in the 1971 elections from Rae Bareilly). The unthinkable had happened — a prime minister in office had been unseated in Parliament.
Idea Page
India and Eurasian vacuum (Page no. 11)
(GS Paper 2, International Relations)
As Moscow muddles through with its Ukraine invasion, the implications of a weakened Russia are coming into bold relief.
With Russia’s traditional sphere of influence now under growing contestation, India will have to find new ways to secure its interests in Eurasia. After all, India has long hitched its Eurasian wagon to the Russian star. The Kremlin’s star, however, is dimming and it is not within India’s power to alter that dynamic.
Thanks to its close ties to the Soviet Union, India had privileged access to the Central Asian Republics in the Cold War era. But Delhi could not do much with that since the collapse of the Soviet Union. Absence of geographic access and limited trade and investment ties meant Delhi’s salience in the region has been underdeveloped.
Since the collapse of the Soviet Union, Delhi has largely relied on Moscow to buttress its role in the region. India worked with Russia and Iran, for example, to counter the Taliban in Afghanistan in the second half of the 1990s.
Russia had also actively campaigned for India’s membership of the SCO despite China’s reservations. Moscow bet that having India in the SCO will produce a better regional balance of power. Russia was also ready to supply arms to India during its military confrontation with China in eastern Ladakh in the summer of 2020.
China’s rapid rise in the new millennium, however, has begun to change the regional equations. China has not only become a leading economic partner for the Central Asian states, but its security ties with Moscow have deepened amidst the sharpening conflict between Russia and the West. And Moscow’s inability to quickly wrap up the Ukraine invasion is making matters worse.
Many in the Indian strategic community have long complained about the West “pushing” Russia into China’s arms. But the Russian state has been around for more than a thousand years, and it is quite capable of making choices based on its perceived interests. Russian President Vladimir Putin did his sums on Ukraine — in retrospect, it is quite clear that he got them wrong.
Whether Putin was “pushed” or “jumped” into Chinese arms, the consequences for India are the same. Putin’s Ukraine war has set off three negative trends.
First, the Russian invasion of Ukraine has alarmed its close neighbours. If Russia can claim that Ukraine had no right to independent existence and invade it, Moscow could do much the same to other republics that were part of the Soviet Union.
In early August, former Russian President Dmitry Medvedev posted a tweet proclaiming that after defeating Ukraine, Moscow should take back lost lands to revive the “mighty and invincible Russia”.
Rethinking universities (Page no. 11)
(GS Paper 2, Education)
The University Grants Commission recently unveiled its guidelines for transforming Higher Education Institutions (HEIs) into autonomous institutions.
Drawing on the objectives of the National Education Policy 2020, the guidelines lay out a roadmap to transform colleges to either multidisciplinary universities or degree-awarding autonomous institutions by 2035.
While there is little to disagree with in the ambitious objectives of the policy, the challenge is to restructure the institutional framework in the existing universities and structure a new framework for the potential universities that will make this transformation meaningful.
Are India’s current universities and colleges up to the task of producing workers for the knowledge society? Whichever prism one looks through — employability, quality of research or instruction — the results are underwhelming. Global employability surveys see fewer than 10 Indian institutions in the top 500 while local surveys routinely report a disproportionately large number of unemployable graduates.
It is then only natural that our own HEIs — the sword arm of our efforts to transform ourselves into a knowledge economy — should subject themselves first to a transformative process in line with the demands of the new policy so that their institutional weaknesses do not impair their critical role in fructification of the policy.
While the problems of poor instruction and the inability of most of our institutions to offer relevant skills are often cited as their weaknesses, these are in fact emblematic of a deeper malaise — the inability to upgrade or create knowledge, which otherwise should be the most crucial tasks of teachers in any institution. This inability is further situated in structural weaknesses.
Universities in India are largely autonomous when it comes to appointments of faculty. Logically, if autonomous institutions are accountable for delivering certain goals, they must have the authority to take actions whichfulfill that mandate.
However, unlike in many developed nations, higher educational institutions in India are largely state funded. Consequently, they suffer little in terms of resources when they hire poor quality faculty or when the selected faculty does not upgrade their skills.
While regulatory bodies like the UGC have introduced grading systems, made financial grants dependent on grades obtained and introduced faculty monitoring and career advancement schemes, there is as yet no binding mechanism preventing non-performers in universities from free-riding on the efforts of performing colleagues.
Time for global digital governance (Page no. 11)
(GS Paper 2, Polity and Governance)
In an interview earlier this month, Telecom Minister AshwiniVaishnaw spoke about a comprehensive policy roadmap for India’s digital economy.
Crucially, he mentioned a Digital India Act that was being prepared to replace the Information Technology Act, 2000. The new law will encompass the whole menu of regulatory challenges facing the digital economy including anti-trust, data governance, intermediary liabilities, consumer protection and the ethical use of technologies.
In the past few years, policies and regulations in India have been tweaked and amended to expand their scope and bring within their ambit internet companies, especially Big Tech.
In the new wave of regulation and enforcement, some countries have become trendsetters. The European Union led the way on privacy with its General Data Protection Regulation (GDPR) followed, more recently, by the Digital Services and Digital Market Acts. In the UK, the Digital Regulation Cooperation Forum is bringing together regulatory cooperation between the competition authority, privacy regulator and telecom and financial services regulators.
The US and Australian initiatives are still brewing, as are those in several other parts of the world. The principles of regulation are mostly aligned, reflecting their unease with the inconceivable growth and influence of Big Tech.
In 2019, Kashmir Hill, a journalist, wrote about her experiment with cutting out the “Big Five Tech Giants”. It explained her challenges of not knowing how to get in touch with people without the tech giants and in the following weeks of not being able to find easy digital replacements for sending huge files on the internet, searching the web, using maps, video calling, etc, without trespassing on the territory of the Big Five.
In a post-Covid world, one can imagine that this is much more pervasive. Hill made a point, which is now better understood and academically packaged as the doctrine of essential facilities.
Digital platforms have now become our gateway to the internet. Many arguments support why private digital platforms are now seen as infrastructure and until regulations are future-proofed, the essential facilities theory offers a method to carry out anti-trust investigations. This also resonates with the EU’s Digital Markets Act, which refers to gatekeeper firms.
Explained Page
SC quota for Dalit Muslims and Christians: story so far (Page no. 13)
(GS Paper 2, Polity and Governance)
The Centre is likely to soon decide on setting up a national commission to study the social, economic and educational status of Dalits who converted to religions other than Hinduism, Buddhism and Sikhism. Several petitions are pending before the Supreme Court seeking Scheduled Caste (SC) reservation benefits for Dalits who converted to Christianity or Islam.
The original rationale behind giving reservation to Scheduled Castes was that these sections had suffered from the social evil of untouchability, which was practised among Hindus.
Under Article 341 of the Constitution, the President may “specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall…be deemed to be Scheduled Castes”.
The first order under this provision was issued in 1950, and covered only Hindus. Following demands from the Sikh community, an order was issued in 1956, including Sikhs of Dalit origin among the beneficiaries of the SC quota.
In 1990, the government acceded to a similar demand from Buddhists of Dalit origin, and the order was revised to state: “No person who professes a religion different from the Hindu, the Sikh or the Buddhist religion shall be deemed to be a member of Scheduled Caste.”
The Department of Personnel and Training (DoPT) website states, “The rights of a person belonging to a Scheduled Tribe are independent of his/her religious faith.”
Following the implementation of the Mandal Commission report, several Christian and Muslim communities have found place in the Central and state lists of OBCs.
After 1990, a number of Private Member’s Bills were brought in Parliament for this purpose. In 1996, a government Bill called The Constitution (Scheduled Castes) Orders (Amendment) Bill was drafted, but in view of a divergence of opinions, the Bill was not introduced in Parliament.
The UPA government headed by Prime Minister Manmohan Singh set up two important panels: the National Commission for Religious and Linguistic Minorities, popularly known as the RanganathMisra Commission, in October 2004; and a seven-member high-level committee headed by former Chief Justice of Delhi High Court RajinderSachar to study the social, economic, and educational condition of Muslims in March 2005.
The Sachar Committee Report observed that the social and economic situation of Dalit Muslims and Dalit Christians did not improve after conversion.
The RanganathMisra Commission, which submitted its report in May 2007, recommended that SC status should be “completely de-linked…from religion and…Scheduled Castes [should be made] fully religion-neutral like…Scheduled Tribes”.
The CBI’s uneasy history (Page no. 13)
(GS Paper 2/3, Governance/Internal Security)
In May 2013, as multiple corruption scandals dogged the UPA government, the Supreme Court made an observation about the Central Bureau of Investigation (CBI) that has stuck to the agency ever since. A Bench headed by Justice R M Lodha described the CBI as “a caged parrot speaking in its master’s voice”.
The observation was made in the context of government interference in the functioning of the CBI in its investigation of the coal blocks allocation cases.
The apex court has since criticised the CBI for its “actions and inactions” on several occasions, and flagged fundamental problems with the functioning of the agency.
Delivering the D P Kohli Memorial Lecture at the CBI on April 1 this year, then Chief Justice of India (CJI) N V Ramana lamented that the agency had gone from being the people’s most trusted to the subject of deep public scrutiny.
“When it comes to the CBI, it possessed immense trust of the public in its initial phase. …But with the passage of time, like every other institution of repute, the CBI has also come under deep public scrutiny. Its actions and inactions have raised questions regarding its credibility in some cases,” Justice Ramana had said.
Earlier in 2019, then CJI RanjanGogoi had questioned the role of the CBI in “politically sensitive” cases, and said that it reflected “a deep mismatch between institutional aspirations” and “governing politics”. Justice Gogoiwas nominated to Rajya Sabha soon after he demitted office as CJI.
The struggle to free elite law-enforcement agencies such as the CBI and Enforcement Directorate (ED) from the stranglehold of governments and political parties has been ongoing since the 1990s.
The landmark 1997 VineetNarain judgment of the Supreme Court (VineetNarain& Others vs Union Of India &Anr) dealt with this issue in detail.
The Supreme Court fixed the tenure of the CBI Director at two years, gave statutory status to the Central Vigilance Commission (CVC), and stipulated that a panel headed by the CVC and including top secretaries to the Union government would draw up a panel from which the Director of the ED would be selected.
The Lokpal Act, 2013, laid down that the CBI Director should be chosen, unanimously or by majority vote, by a search committee headed by the Prime Minister and also comprising the Leader of Opposition and the CJI or his representative, from a list of candidates drawn up by the Home Ministry and examined by the Department of Personnel and Training.
Despite these changes, very little has changed, said journalist VineetNarain, who has long campaigned for the independence of the two agencies.
The controversy over NAAC’s system for assessing higher education (Page no. 13)
(GS Paper 2, Education)
The National Assessment and Accreditation Council (NAAC), which carries out quality checks or assessments of Indian Higher-level Educational Institutions (HEIs), courted controversy recently over the rating of the Maharaja Sayajirao University of Baroda and allegations of bribery in the process.
When the NAAC released the ratings, the institute’s score changed from A to A+ on the back of improvement across parameters. The allegations have surfaced at a time when the NAAC is exploring changes in its approach.
The NAAC, an autonomous body under the University Grants Commission (UGC), assesses and certifies HEIs with gradings as part of accreditation.
Through a multi-layered process, a higher education institution learns whether it meets the standards of quality set by the evaluator in terms of curriculum, faculty, infrastructure, research, and other parameters. The ratings of institutions range from A++ to C. If an institution is graded D, it means it is not accredited.
In a recently-published white paper, co-authored by NAAC executive committee chairman BhushanPatwardhan and former Indian Institute of Science Education and Research professor KP Mohanan, the current approach has been described as “input-based”. In other words, NAAC relies heavily on self-assessment reports of applicant institutions.
The first step has an applicant institution submitting a self-study report of information related to quantitative and qualitative metrics. The data is then validated by NAAC expert teams, followed by peer team visits to the institutions. This last step has sparked controversy.
NAAC had reportedly withheld the grading of the Maharaja Sayajirao University of Baroda after receiving an anonymous complaint that the university unduly tried to influence the peer review team with gold, cash and other favours.
However, on September 15, NAAC released the improved grading, terming the allegations as “false”. Interestingly, the controversy has surfaced at a time when the council is considering reducing the role of the peer team visits in the overall scheme of things.
The process of Peer Team Visits adds substantial effort on the part of both NAAC and the HEIs. Hence, we recommend that the role of Peer Team visits be facilitatory in nature and not have a significant weightage in assessment and accreditation,” according to the white paper published on July 13 following its review and endorsement by the NAAC academic advisory committee and the advisory council.