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1.Should MPs and MLAs be barred from practising law? (The Hindu)

2.Civil wrong, criminal act (The Hindu)

3.Heed the patient The Indian Express and The Hindu, PRS)

 

1.Should MPs and MLAs be barred from practising law? (The Hindu)

Synoptic line: It throws light on the different views regarding whether MPs and MLAs should be barred from practising law or not? (GS paper II)

Overview

  • Public interest litigation has been filed in the Supreme Court to ban public servants, elected representatives and members of judiciary from simultaneously practicing other professions and declare it as criminal misconduct.
  • According to the PIL, there is need to frame a uniform policy relating to conflict of interest for public servants, people representatives and members of judiciary in spirit of Article 14 of the Constitution and declare the conflict of interest as the criminal misconduct.
  • PIL also wanted that the court should define the key roles and responsibilities of the people representatives and public servants to make the Indian democracy more transparent and effective in spirit of Preamble of the Constitution of India. The PIL has made the Centre, Law Ministry, Bar Council of India and Law Commission as respondents.

Different views 

There are various regarding this-

  1. In favour-
  • Proponent’s views that, for a country we don’t need part-time legislators, rather we need dedicated parliamentarians. There are dual role played by MPs or MLAs when they double up as lawyers, which is not only illegal and unconstitutional but also it is unethical and immoral.
  • Rule 49 of the Bar Council of India states that any full-time salaried employee, whether he or she belongs to a corporation, private firm, or the government, cannot practise as a lawyer before a court of law. No public servant can engage in the pursuit of any other vocation and certainly cannot offer his or her services as a lawyer while in service.
  • A five-judge Bench in M. Karunanidhi vs. Union of India (1979) categorically stated that MPs and MLAs are public servants, though the employer-employee relationship will not apply to them. Mr. Karunanidhi had argued that he was not a public servant in a corruption case.
  • The work of MPs and MLAs is to take part in the proceedings of the House, meet people in their constituencies, and grapple with and address people’s issues. They have their work cut out. To facilitate their work, they have been provided with various incentives apart from salary. They should go and serve the people.
  • It also involves the case of ‘professional misconduct’ as MPs and MLAs who are practising lawyers take a fee from the petitioner and also get their salary from the respondent, which is the Central or State government.
  • As we bar public servants from engaging in other professional services, then how can we allow legislators who are also public servants to argue cases in courts? This is a violation of Articles 14, 15, and 21, which deal with the right to equality, prohibition of discrimination, and protection of life and personal liberty, respectively. Indian constitution can’t discriminate against one public servant and not the other. A public servant is defined in Section 21 of the Indian Penal Code and Section 2 of the Prevention of Corruption Act.
  1. Against
  • However opponent’s views differ, they argue that Parliament deserves to be enriched by diverse talents, varied experiences, and different vocational acumen. It is this diversity which is truly enriching and shows up all the time in a stray debate, in a casual conversation, in a heated intervention and, of course, in a prepared speech.
  • Parliament must remain, as indeed our country is, as a melting pot of diversity, even in terms of expertise. Globally even the established sectors like the civil service are seeking a partial conversion to specialised personnel and technocrats; and we have a reversion and regression inbuilt in this outlandish idea.
  • The excuse regarding lack of devotion of time is spurious and specious as the art of managing such pulls and pressures is known to every successful human being and led the marketplace be the best, most clinical, and the cruelest judge of that. The “time factor” argument is clearly a red herring, as the ultimate analysis says that it depends very much on the individual concerned.
  • Across the board, any numbers of people juggle their own profession along with a sense of civic duty, public service, social work, or politics. None of the last four vocations/activities has any legally prescribed qualification. If such qualifications were prescribed, it would be legitimate to insist on their fulfilment. The proponent view is fallacious and conceptually confused approach.
  1. Complicated
  • Lawyers are articulate and known for logical thinking and every country has to be run in accordance with the rule of law. Before coming to conclusions there are many technical questions which need to be addressed.
  • The question raised in the petition is based on a 1996 judgment which actually specifies who can practise as an advocate. Briefly, the judgment says that while being an advocate, you cannot engage in any other activity either partly or fully (in trade, business, etc.).
  • But the question is, Can politics be equated with being in trade or is it an employment? What MPs and MLAs get in the form of remuneration is termed as allowance, not as earnings. But the description of what emoluments accrue to MPs is a salary slip, which is not different from a payslip.
  • If doctors can join politics, if chartered accountants, engineers and business tycoons can become MPs and MLAs, what is the argument against lawyers?
  1. In the context of the legal profession, the question arises that is a conflict of interest which arises when a lawyer accepts a brief from a corporate house and is a member of either House. You cannot be appearing for a particular person and lobby for the person in the House.  Parliament is not the place for lobbying. If you have accepted money, or have benefited in any manner, or have been briefed in a particular matter and you lobby for that person in Parliament that is unethical. It applies equally to business entrepreneurs who are members of State Assemblies or Parliament.
  1. However, the counterargument is based on a judgment of the Supreme Court in Dr. Haniraj L. Chulani v. Bar Council of Maharashtra and Goa (1996). The court held that a person qualified to be an advocate would not be admitted as one if he or she is in full-time or part-time service or employment. In continuation of the same argument, the next question is whether emoluments received by MPs or MLAs are an allowance or, as the payslip calls itself, a salary slip.
  1. Advocates are governed by the Advocates Act and Bar Council Rules, which seek to impose certain restrictions on practitioners of law. The discrimination also lies in the fact that practitioners of other professions like engineers, doctors, etc. don’t face such restrictions under any legislation similar to the Advocates Act. Thus, lawyers can legitimately seek equality with other professionals.

Way ahead

  • Clarity is required, as this has to be tested on grounds of equality and right to practice a profession.

Question– The key roles and responsibilities of the people representatives and public servants is to make the Indian democracy more transparent and effective in spirit of Preamble of the Constitution of India. Explain in the context of ‘Should MPs and MLAs be barred from practising law or not?’

 

2.Civil wrong, criminal act (The Hindu) 

Synoptic line: It throws light on the opposition views on Triple Talaq Bill. (GS paper III)

Overview

  • Recently the Lok Sabha on signed off on a law which criminalizes the practice of instant triple talaq. The legislation seeks to protect the rights of married Muslim women by prohibiting the practice under which a Muslim man can divorce his wife by uttering the word “talaq” three times at one go.
  • The Muslim Women (Protection of Rights on Marriage) Bill, 2017 now has been taken up in the Rajya Sabha, even before the Bill was taken into consideration; a heated verbal exchange was witnessed in the House with members raising a series of Point of Orders and consequent adjournment of the House for the day.

Assessment

  • The Muslim Women (Protection of Rights on Marriage) Bill, 2017, popularly known as the triple talaq Bill, was moved in the Rajya Sabha. Moving the Bill, Law Minister said triple talaq was being used despite the Supreme Court banning it. The Opposition pushed for taking up the amendments proposing that the Bill be sent to a Select Committee. The opposition view that this bill is an ill-thought-out, hastily conceived legislation exposes the dubious intentions of the government.

Supreme Court’s decision

  • There have been 3 separate judgments were rendered. Justice R.F. Nariman and Justice U.U. Lalit held that talaq-e-biddat (triple talaq) as a practice was arbitrary and declared it to be unconstitutional and consequently void.
  • Justice J.S. Khehar and Justice Abdul Nazeer held that being a 1,400-year-old practice; this had become an integral part of the faith of Muslims and could not be struck down as being violative of fundamental rights. However, they stated that since such a practice is otherwise abhorrent and considered illegal in various Muslim countries around the world and, taking note of the stand of the Muslim Personal Law Board deprecating the practice, it should be discontinued.
  • Consequently, they granted an injunction against the practice of triple talaq for a period of six months from the date of judgment, enabling Parliament to legislate on the subject. Three of the five judges of the Court held this practice to be void, albeit for different reasons.

This legislation has three essential features-

  • That triple talaq or any form of instantaneous and irrevocable divorce pronounced by a Muslim is void;
  • That a Muslim husband pronouncing triple talaq is criminally culpable;
  • That the offence is non-cognisable and non-bailable.
  • The government seeks to declare void a practice that has already been declared void by the Supreme Court. Had this legislation not been initiated, the practice would still be void. Therefore, the legislation to this extent does no more than restate an existing statement of law. This is inexplicable. The sole intent of the legislation, therefore, is to criminalise the act of triple talaq.
  • Criminalisation of this act does not emanate from any part of any of the three judgments rendered by the Supreme Court. This is why in proposing this legislation the government has exposed its dubious intent of targeting Muslim men, who are now liable to be prosecuted for breaching a civil contract, a Muslim marriage being a contract of a civil nature.
  • Also in the legislation there is no provision, which states that the wife alone can file a complaint alleging that an offence of triple talaq has been committed. A third person can file such a complaint on the basis of which the husband alleged to have pronounced triple talaq can be arrested forthwith. Being non-bailable, only a court is entitled to grant bail.

Several implications

  • The wife who may not wish to complain, her marriage being intact, has to suffer the consequences of her husband being sent to jail. That affects her husband’s capacity to provide for the family;
  • The complaint may be based on a lie, yet the husband may land in jail; and
  • It is not understood why the husband needs to go to jail when the marriage is subsisting and valid.

Way ahead

  • The opposition claims that the legislation is related with religion and it does not seeks to serve the cause of gender justice rather it is an act of ‘political opportunism’ to seek electoral benefits.

Question – Critically analyse ‘the Muslim Women (Protection of Rights on Marriage) Bill, 2017’.

 

3.Heed the patient (The Indian Express and The Hindu, PRS)

Synoptic line: It throws light on the recently proposed the National Medical Commission Bill, 2017. (GS paper III)

Overview

  • Recently the National Medical Commission Bill, 2017 was introduced by the Minister of Health and Family Welfare in the Lok Sabha. The bill led the Indian Medical Association (IMA) called for a 12-hour shutdown to protest as it describes the bill as the “anti-people and anti-patient”.

About the bill

  • The National Medical Commission Bill seeks to repeal the Indian Medical Council Act, 1956 and provide for a medical education system which ensures-
  • Availability of adequate and high quality medical professionals,
  • Adoption of the latest medical research by medical professionals,
  • Periodic assessment of medical institutions, and
  • An effective grievance redressal mechanism.

Key features of the Bill 

  • The Bill sets up the National Medical Commission (NMC). Within three years of the passage of the Bill, state governments will establish State Medical Councils at the state level.  The NMC will consist of 25 members, appointed by the central government.  A Search Committee will recommend names to the central government for the post of Chairperson, and the part time members.
  • Under the Bill, the central government will constitute a Medical Advisory Council.  The Council will be the primary platform through which the states and union territories can put forth their views and concerns before the NMC.  Further, the Council will advise the NMC on measures to enable equitable access to medical education.
  • The Bill sets up certain autonomous boards under the supervision of the NMC.  Each autonomous board will consist of a President and two members, appointed by the central government. The Under-Graduate Medical Education Board (UGMEB), the Post-Graduate Medical Education Board (PGMEB), the Medical Assessment and Rating Board (MARB), and the Ethics and Medical Registration Board.
  • There will be a uniform National Eligibility-cum-Entrance Test for admission to under-graduate medical education in all medical institutions regulated by the Bill.  The NMC will specify the manner of conducting common counselling for admission in all such medical institutions.
  • There will be a National Licentiate Examination for the students graduating from medical institutions to obtain the license for practice. The National Licentiate Examination will also serve as the basis for admission into post-graduate courses at medical institutions.

Assessment

  • After receiving protest and strike from IMA, the government referred the controversial National Medical Commission Bill, tabled in the Lok Sabha, to a Standing Committee. The decision of the Lok Sabha to send the NMC bill to a standing committee for a relook is the right one.
  • The IMA said that the NMC would not be “national” as it did not represent all States. In its merging of Ayush with modern medicine, it posed a potential threat to patients and was as risky as an untested medical “trial. The IMA targets Ayurveda, unani and homoeopathy practitioners who hive off their business.
  • Two lobbies are at work backing the professional interests of the allopathic community on the one hand and AYUSH practitioners (mainly Ayurveda, unani and homoeopathy physicians) on the other.
 FACTS

  • A 2016 WHO study found that only 58 per cent of urban doctors had a medical degree and only 19 per cent in rural areas. Only 31.4 per cent of allopathic doctors were educated to the secondary school level and 57.3 per cent did not have any medical qualification. NSSO reports also shows how barring the metros and large cities, there are more unqualified practitioners than regular doctors.
  • The interests of all allopathic doctors, regardless of their competence, are looked after by The Indian Medical Association (IMA), a voluntary registered society with state chapters which register doctors as members and lobby with the government, resorting to agitations and strikes whenever doctors’ interests are affected.

 

  • Many of the IMA’s members are single practitioners and they run their clinics with the assistance of young school dropouts engaged as helpers. They train them to handle acute illnesses and treat acute medical conditions, once sufficiently skilled, these assistants set up independent practice using the prefix “doctor”.
  • They run a lucrative business charging a fraction of a qualified doctor’s fees. When patients do not respond to treatment, they refer them to a known qualified medical practitioner who remunerates them with a 30 per cent commission. The IMA and the Medical Council of India, both at the apex level and in their state units, are aware of what is happening.
  • The nexus between the unqualified practitioners or RMPs (Rural not-Registered medical practitioner) is apparent from the virtual absence of action against thousands of quacks. The National Medical Commission Bill 2017 for that matter the National Health Policy 2016 overlook this countrywide phenomenon altogether.
  • Under law, the Medical Council of India and the state medical councils are enjoined to take action against those who practise allopathic medicine without being enrolled on the allopathic medical register. As consumer safety is at stake, this is a serious omission from a bill which seeks to replace the medical council.
  • The practitioners of Indian medicine also constitute another powerful lobby. The National Integrated Medical Association (NIMA) lobbies forcefully in favour of “integrated practice”.  If AYUSH graduates are allowed to practise allopathy, where does the status and the future of Ayurveda stand? They should not be allowed to practise allopathy as otherwise the AYUSH systems will die

Way ahead

  • The new bill must take stock of and address what the country actually needs. The first need is for thousands of community-level accredited practitioners, not full-fledged doctors, who after training should be equipped to provide the first line of care for acute conditions and to make referrals to a regular doctor within a GPS-supervised system.
  • A new system of community-based trained health workers (not government employees) who are enrolled on the state medical register is needed.
  • The new bill should promote integrative medicine enabling people to access multiple choices but available under one roof, particularly for chronic conditions or even as adjuvant therapy. The developed world has recognised that with an increase in life expectancy, chronic diseases, allergic syndromes and rare medical conditions cannot be cured, but the symptoms can be mitigated through traditional medicine.
  • The new bill should recognise the scope for integrative medicine but without mixing medical systems and practitioners. The bill needs to confront reality and addresses it, keeping consumer interest paramount.
  • Now the bill has been referred to the parliamentary standing committee, it has an opportunity to make a difference, if it shuns the rhetoric of self-interest professional groups and confronts reality.

Question – Explain about the recently proposed the National Medical Commission Bill, and also analyse how it must address the needs of the consumer rather than the interests of medical practitioners and quacks.