Mitras Analysis of News : 05-04-2017

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1.Right to recall legislators (The Hindu) 

2.My Way on the Highway (Liquor ban and its sanctity)  (The Hindu) 

3.Right to privacy  (The Hindu) 

4.Teesta Water Dispute (the Hindu)

 

1.Right to recall legislators (The Hindu) 

Synoptic line: It throws light on the issue of right to recall as a tool for effective democracy. (GS paper II)

Overview 

  • We have seen instances of elected representatives not even visiting their constituencies once after the polls, returning only to ask for votes the next time around. The people elect them based on their promises, which invariably revolve around basics like drinking water, sanitation, health, education and jobs.
  • Hence, an idea of Right to recall is being floated where the legislators can be called back from their office on account of inefficiency.

Right to Recall 

  • Logic and justice necessitate that if the people have the power to elect their representatives, they should also have the power to remove these representatives when they engage in offences or fail to fulfil the duties.
  • Such an alternative to remove officials is being mooted by “right to recall” under which a recall election will be initiated by which voters may seek to remove elected officials through a direct vote before their term is completed.
  • To implement right to recall, a private member’s bill has been initiated which proposes an amendment to the Representation of the People Act 1951.
  • The practice of right to recall, or recall referendum, or representative recall exists in Switzerland, the US, the UK, Canada, Venezuela, among others.

Representation of the People (Amendment) Bill, 2016

  • Recalling process can be initiated by any voter of the constituency by filing a petition before the Speaker, signed by at least one-fourth of the total number of electors in that constituency.
  • After confirming its authenticity, the Speaker will move the application to the Election Commission for its verification and authentication of the voters’ signatures on it. The Commission will verify the signatures on it and will organise the voting on 10 places in the respective constituency of MP or MLA.
  • If three-fourth of the votes that member was polled in his election, go in favour of the recall process, the member will be recalled.

Right to recall in India 

  • Such a right is not unknown in ancient political systems as, in the concept of “Rajdharma”, the lack of effective governance was a cause for removal of a king, and it has been spoken about since the Vedic times.
  • In fact, various political leader such as M.N Roy and JP Narayan has delved on this issue.
  • Moreover, local bodies of various states such as Chattisgarh , MP and Bihar had made provisions for right to recall. 

Why needed in Indian context? 

  • In a first-past-the-post system in a democracy, unfortunately, not every elected representative truly enjoys the mandate of the people. There exists no recourse for the electorate if they are unhappy with their elected representative.
  • The Representation of the People Act, 1951, only provides for “vacation of office upon the commission of certain offences and does not account for general incompetence of the representatives or dissatisfaction of the electorate as a ground for vacation”.

Why not suitable for India

  • It would only add to the instability of governments, by empowering not those who win elections, but those who lose. With a society so deeply-embedded in castes, sub-castes, religions and sects, the idea of not waiting for five years for the next election and bringing in recall at the drop of a hat, would eventually amount to undermining the very essence of Indian democracy.

Way ahead

  • While it is necessary to ensure that a recall process is not frivolous and does not became a source of harassment to elected representatives, the process should have several built-in safeguards such as an initial recall petition to kick-start the process and electronic-based voting to finally decide its outcome.
  • Furthermore, it should ensure that a representative cannot be recalled by a small margin of voters and that the recall procedure truly represents the mandate of the people.
  • To ensure transparency and independence, chief petition officers from within the Election Commission should be designated to supervise and execute the process.

Question: Right to recall can be an effective fulfilment of Democracy in India. However, it has been marred by several challenges in India. Discuss.

 

2.My Way on the Highway (Liquor ban and its sanctity) (The Hindu) 

Synoptic line: It throws light on the issue of liquor ban along highways and its implications. (GS paper II)

Overview 

  • Apex court has prohibited the sale of liquor along the highways on the pretext of avoiding drunken driving.
  • The court’s order is fraught with huge challenges. It has faced varied responses ranging from feelings of mixed reaction to severe criticism.

Polycentric problems

Certain social issues involve a complex set of interdependent relationships, where changing one feature could result in unforeseen and far-reaching changes to other features.

  • A polycentric problem is like a tangled web where a pull on one strand will distribute tensions after a complicated pattern throughout the web as a whole.

Supreme court’s ruling and polycentric problems 

  • According to the notion of polycentricism, judiciary is supposed to be particularly ill-suited to resolve polycentric problems.
  • The judiciary did not have the time, the resources, or the institutional expertise to engage in the kind of fine-grained, evidence-based, compromise-requiring balancing act that was required to prevent the negative repercussions of polycentric problems.
  • Recent, Supreme Court’s order prohibiting the sale of alcohol along national and State highways highlights the threats of polycentric judgment.
  • While the stated reason for this order is the overriding imperative of preventing road accidents due to drunken driving, already there are reports about the collateral consequences: lost livelihoods and a substantial hit in tourism for States such as Goa and Kerala.
  • Moreover, Indian Constitution mandates a separation of powers between the executive, the legislature, and the judiciary, and places policymaking firmly in the domain of the executive and the recent ruling is a characteristic example of “judicial overreach.

Basis for the Ruling 

  • Premise for the court’s ruling is based on the supposed fact, that liquor licences are granted on national and state highways at the cost of endangering human lives and safety. Court has reasoned that accessibility of liquor along highways is the major cause of drunken driving. 
  • However, the question is not whether the government’s determination is correct or incorrect, rather it pertains as which body is authorised to act upon that determination.
  • Moreover, the court justified its order under Article 21 of the Constitution, which guarantees the right to life and personal liberty. According to the basis of ruling, article 21 is not merely a right against state action that deprives an individual of her life, but also against state inaction that results in loss of life.

Persistent Issues 

  • Legal foundation of judgement misses certain vital points. The premises of avoiding state inaction in order to guarantee the right to life is not devoid of flaws as there are innumerable substances or activities which tend to endanger human life, state cannot prohibit them all in pursuance of Article 21. For instance, people would probably live longer, and there would be fewer deaths by heart attacks, if the state was to ban all junk food. That, however, would not justify the court invoking Article 21 and directing the state to ban all junk food.
  • Moreover, the court also clarified that it was passing orders under Article 142 of the Constitution which empowers the Supreme Court to do “complete justice” in any case before it. However, this power is bounded by the further requirement that the court act “within its jurisdiction”. In this case however, the court was not able to make out a compelling case for why its orders do not encroach upon the executive’s domain of policymaking.

Way Ahead

  • The United States experimented with the prohibition way back in 1920. It soon found out that more people were drinking alcohol than before. The country suffered revenue loss and the cost of enforcing ban was quite high. Therefore, instead of going for such radical steps, need of the hour is to opt for behavioural change approaches.
  • Such a psychological approach can be a method known as “nudging” where people are constantly nagged by the emotional and educative drives to give up the errant behaviour. Moreover, such approaches tend to work on the eradication of root causes rather than just suppressing the manifestation of the problem.

Question: Right to choose constitutes an integral part of Fundamental rights. In this context where does liquor ban fits?

 

3.Right to privacy (The Hindu)

Synoptic line: It throws light on the issue of privacy in Indian context. (GS paper II)

Overview 

  • A minister in Kerala recently, resigned from his office on the alleged charges of asking sexual favors from a woman. The revelation was made by a sting operation. However, certain exposures provide that there could be certain malafide intentions in the sting.
  • However, this event raises certain fundamental questions concerning a debate on privacy vs public interest

Evolution of Right to privacy 

  • As the ever changing common law grew to accommodate the problems faced by the people, it was realized that not only was physical security required, but also security of the spiritual self as well as of his feelings, intellect was required. Now the Right to Life has expanded in its scope and comprises the right to be let alone 
  • The Court has implied the right of privacy from Art.21 by interpreting it in conformity with Art.12 of the Universal Declaration on Human Rights and Art.17 of the International Covenant on Civil and Political Rights, 1966. Both of these international documents provide for the right of privacy.
  • Right to privacy is not enumerated as a Fundamental Right in the Constitution of India. The scope of this right first came up for consideration in Kharak Singh’s Case which was concerned with the validity of certain regulations that permitted surveillance of suspects. 
  • In the context of Article 19(1) (d), the right to privacy was again considered by the Supreme Court in 1975.
  • In the context of surveillance, it has been held that surveillance, if intrusive and seriously encroaches on the privacy of citizen, can infringe the freedom of movement, guaranteed by Articles 19(1)(d) and 21.  

Right to Privacy in India 

  • The right to life enshrined in Article 21 has been liberally interpreted so as to mean something more than mere survival and mere existence or animal existence. It therefore includes all those aspects of life which makes a man’s life more meaningful, complete and worth living and right to privacy is one such right.
  • In Maneka Gandhi v. Union of India SC said ‘personal liberty’ in article 21 covers a variety of rights & some have status of fundamental rights and given additional protection u/a 19. It further opined that the law and procedure authorising interference with personal liberty and right of privacy must also be right just and fair and not arbitrary, fanciful or oppressive.

Sting operations and privacy 

  • The ethics of sting operations is among the most fiercely debated issues in journalism. 
  • While different jurisdictions and media groups around the world have varying guidelines on the subject of sting operations, some things are generally agreed upon as any such operation that uses false tricks, with its necessary violation of the interviewee’s trust and privacy, must serve a larger public interest that far overshadows such violation.
  • It also must be used as a last resort, when there is no other means of acquiring the information. 

Way ahead

  • A sting cannot be an excuse to grab eyeballs with unhealthy (and essentially private) content, or a shortcut to make a point merely by shocking the reader or viewer. Hence, there should be a code of ethics to deal with such cases.
  • Stings are an ethical hazard and it is crucial that media persons and broadcasters explain the fundamental public interest for accompanying them.

Question: Right to privacy is an evolution of Right to life. Discuss important court judgements in this regard?

Explained

 

4.Teesta Water Dispute (the Hindu) 

Introduction 

  • Bangladesh Prime Minister Sheikh Hasina will visit India, it will be her first bilateral visit in seven years.

 The two sides are expected to announce a slew of agreements on connectivity, energy and trade, but according to the former Bangladesh High Commissioner to India, main focus will be on Teesta water agreement. 

Teesta water agreement

  • India and Bangladesh share 54 rivers between them, teesta is one of them. Teesta river originates in Sikkim and through the northern West Bengal, it enters into Bangladesh to meet Brahmaputra.
  • The dispute is regarding the sharing of the river waters. When West Bengal government began constructing barrages on the river in 70s, mainly for irrigation purposes, the Bangladesh government started opposing this.
  • Their point was that “The major rice producing areas of Bangladesh lie in the Teesta and Brahmaputra river basin. Once barrages are constructed it would lead to scarcity of water for irrigation and low rice production.” 
  • Despite setting up a Joint River Commission for water management as early as 1972, tensions between the countries on how to share resources recently came to a head in a dispute over the Teesta River. At stake are the lives of countless people from West Bengal and Bangladesh who depend upon the river for survival.
  • Talks on sharing the waters of the river started right after the 1971 liberation of Bangladesh from Pakistan under the aegis of the Indo-Bangladesh Joint River Commission that was set up in 1972. Experts and bureaucrats of the two countries have been holding parleys since then and in 1983, an ad-hoc agreement on sharing the waters of the Teesta was reached. Under this, Bangladesh got 36 per cent share of the river’s waters, India got 39 per cent share while the remaining 25 per cent remained un-allocated.
  • However, the deal fell apart and did not materialised because the newly elected Chief Minister of West Bengal, refused to approve the treaty, fearing that the loss of higher volume of water to the lower riparian would cause problems in the northern region of state, especially during drier months.
  • Despite this pressure tactic, the treaty remains a slow burner as India continues its efforts of domestic political consensus building.

Way Ahead

  • India is facing a serious water resource problem and as trends suggest, it is expected to become ‘water stressed’ by 2025 and ‘water scarce’ by 2050. Hence both countries, therefore, need to develop a well thought out, balanced treaty that will enable equitable sharing of the waters of the Teesta, thereby enhancing bilateral ties and reducing the possibility of water conflict.

Question: How Teesta water dispute can be an obstruction for India’s “look East policy”?

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