Content

1. Farm laws, their constitutional validity, and hope
2. Terror trail

Editorial: Farm laws, their constitutional validity, and hope

Context:

• With the Supreme Court of India staying the operation of the farm laws and setting up a committee of experts to negotiate with the government and the farmers, the agitation being carried on by the farmers is entering a new phase.

Relevance:

• GS Paper 2: Separation of Powers (between different organs, dispute redressal mechanisms, institutions); Judiciary (structure, organisation functioning)

Mains Questions:

1. The Supreme Court of India keeps a check on arbitrary power of the Parliament in amending the Constitution. Discuss critically. 15 Marks

Dimensions of the Article:

• What is constitutionalism?
• Principles of constitutionalism:
• Issues with recent Farms Act:
• Options before the Supreme court:
• Way Forward:

What is constitutionalism?

Constitutionalism is “a compound of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law”. Some of the basic principles developed over time that embody the concept of constitutionalism are separation of powers, judicial control and accountable government.

• In India, constitutionalism is considered to be a natural corollary to the fundamental governance of the country.
• The Constitution of India with the aid of various legislations has developed a detailed and robust mechanism to put into place administrative mechanisms for the smooth functioning of the machinery of governance.
• However, due to a variety of factors, the distance between the government and the governed has been growing with every passing year. The rich are getting richer and the poor have resigned to their fates, areas which were backward sixty years ago remain as such.

Principles of constitutionalism:

• Separation of Powers: Separation of powers divides the mechanism of governance into three branches i.e., Legislature, Executive and the Judiciary. This not only prevents the monopolization of power, but also creates a system of checks and balances. As this division of powers is in the Constitution itself, this becomes an effective tool for ensuring Constitutionalism.
• Responsible and Accountable Government: In a democratic setup, the government is elected so that it can serve the people who help elect it. It is in this sense that the electors have a right to demand accountability and answers from their government. Therefore, when the government fails the expectations of the electorate, the authorization to govern is revoked by voting them out.
• Rule of Law: The presence of rule of law means that the government does not belong to men but to the laws. Dicey lays down three essential components of Rule of Law:

• Nobody is to be punished except for a specific breach of law that is established in an ordinary legal manner before ordinary courts of law.
• No one is above the law.
• Courts play a vital role in protecting the rights and freedoms of an individual.
• Independent Judiciary: The independence of the Judiciary is the essence of any liberal democracy and the foundation of a free society. The Judiciary is the upholder of Rule of law and if its independence is taken away, it puts the entire rule of law in jeopardy. The Constitution also envisages the separation of the judiciary from the Executive under Article 50.

Issues with recent Farms Act:

• Subject matter is related to State List: The constitutional validity of the farm laws has been challenged in the Supreme Court mainly on the ground that Parliament has no legislative competence to enact these laws, the subject matter of which is essentially in the State list.
• Avoiding rules of Rajya Sabha: It is a universally acknowledged fact that the voting on the Farm Bills in the Rajya Sabha was not done in accordance with the rules of the House.
  • These rules require the Chair to order the recording of votes (division) by members even when one member demands it.
  • The Deputy Chairman of the House, who was conducting the proceedings at that time, did not order division although a few members openly and loudly demanded it. 
  • Thus, there was a violation of the rules of the House in passing the Bills by voice vote when there was a demand for division.
• Violation of the constitution: Article 100 says that all questions at any sitting of either House shall be determined by a majority of votes of the members present and voting. Majority can be determined only in terms of number, and therefore what this Article requires is that all questions in the House should be determined by recording the votes of the members present and voting.
  • Majority cannot be determined through voice vote. In fact the Constitution does not recognise voice vote to determine majority in a legislature.

Options before the Supreme court:

• Judicial Review of Parliamentary Proceedings: It is true that Article 122 of the Constitution protects the proceedings of the House from judicial review. But this protection is available only when the proceedings are challenged on irregularity of procedure.
  • Violation of the Constitution is not a mere irregularity of procedure.
  • The Supreme Court in Raja Ram Pal’s case had clarified that the proceedings can be challenged on substantive grounds like violation of the Constitutional provisions.
  • Therefore, the Farm Bills were passed in the Rajya Sabha in violation of Article 100 of the Constitution and can be challenged in the Supreme Court on that ground.
• Struck down whole laws: The Court can strike down the whole laws as the requirement of Article 107 has not been fulfilled.
  • This Article says that a Bill shall not be deemed to have been passed unless it has been agreed to by both Houses.
  • As has been explained above, the Bills have not in fact been passed by the Rajya Sabha because the majority had not been determined in accordance with Article 100. It would mean that the three Bills did not become laws.
• Invalidate the proceedings of Rajya Sabha: The Court may also invalidate the proceedings of the Rajya Sabha and send the three ‘Acts’ back to that House for further proceedings in accordance with the constitutional provisions.

Way Forward:

In resolving a problem like the agitation by farmers against the laws, the centrality of Parliament in the legislative process in all its dimensions should not be lost sight of. Once the Court decides the legality or constitutionality of a law, the political and legislative aspects of the issue will have to be dealt with only by Parliament. Parliament and its systems alone can produce a satisfactory solution. The only condition is that the government which is accountable to Parliament should genuinely demonstrate its faith in those systems.

Editorial: Terror trail

Context:

• In his speech to the UN Security Council (UNSC) marking 20 years since the resolutions that announced a global commitment to the war against terror after the U.S. 9/11 attacks, External Affairs Minister made a pitch for greater coordination between counter terrorism agencies worldwide.

Relevance:

• GS Paper 3: Linkages of Organized crime and Terrorism.

Mains Questions:

1. The scourge of terrorism is a grave challenge to national security. What solutions do you suggest to curb this growing menace? What are the major sources of terrorist funding? 15 Marks
2. Terrorist groups and lone wolf attackers have significantly enhanced their capabilities by gaining access to new and emerging technologies, including drones, virtual currencies and encrypted communications. 15 Marks

Dimensions of the Article:

• Foreign Minister’s eight points to counter terrorism:
• Significance of global coordination:
• UN Global Counter-Terrorism Coordination Compact
• Global Counter-Terrorism Strategy
• Way Forward:

Foreign Minister’s eight points to counter terrorism:

• First, we must all summon the political will to unhesitatingly combat terrorism. There must be no ifs and buts in this fight. Nor should we allow terrorism to be justified or terrorists glorified. All member States must fulfil their obligations enshrined in international counter terrorism instruments and conventions.
• Two, we must not countenance double standards in this battle. Terrorists are terrorists; there is no good or bad distinction. Those who propagate this only have an agenda. And those who cover up for them are just as culpable.
• Accordingly, we must reform the working methods of the Committees dealing with Sanctions and Counter Terrorism. Transparency, accountability and effectiveness are the need of the day. The practice of placing blocks and holds on listing requests without any rhyme or reason must end. This only erodes our collective credibility.
• Four, we must firmly discourage exclusivist thinking that divides the world and harms our social fabric. Such approaches facilitate radicalization and recruitment by breeding fear, mistrust, and hatred among different communities. The Council should be on guard against new terminologies and false priorities that can dilute our focus.
• Five, enlisting and delisting individuals and entities under the UN sanctions regimes must be done objectively, not for political or religious considerations. Proposals in this regard merit due examination before circulation.
• Six, linkages between terrorism and transnational organized crime must be fully recognized and addressed vigorously. We, in India, have seen the crime syndicate responsible for the 1993 Mumbai bomb blasts not just given State protection but enjoying 5-star hospitality.
• Seven, combating terrorist financing will only be as effective as the weakest jurisdiction. The Financial Action Task Force (FATF) should continue to identify and remedy weaknesses in anti-money laundering and counter-terror can make a big difference.
• Eight, adequate funding to UN Counter Terrorism bodies from UN regular budget requires immediate attention. The forthcoming 7th review of the UN’s Global Counter Terrorism Strategy offers an important occasion to strengthen measures to prevent and combat terrorism and build capacities of member states.

Significance of global coordination:

• Changing face of terrorism leading to global diffusion of threat: In recent years, terrorist networks have evolved, moving away from a dependency on state sponsorship; many of the most dangerous groups and individuals now operate as non-state actors.
  • While some remain focused on local or national political dynamics, others seek to affect global change.
  • Lack of a universal agreement over what constitutes terrorism weakens efforts to formulate a concerted global response.
• Fragmented approach: Multilateral action suffers from inadequate compliance and enforcement of existing instruments.
  • With a global counterterror cooperation mechanism, the actions of uncooperative states could be addressed and capacity-building efforts— currently scattered across bilateral and multilateral relationships—could be brought under a single structure.
• Porous borders and interconnected international system: Taking advantage of porous borders and interconnected international systems—finance, communications, and transit—terrorist groups can operate from every corner of the globe. Nonstate actors that can easily cross borders and operate in civilian areas poses an enormous challenge.
• Incapacity of countries to control terrorist threats: Multilateral initiatives bolster state capacity to build institutions and programs that strengthen a range of activities, from policing to counter radicalization programs.
• Emerging challenges: Vigilance against misuse of emerging technology such as artificial intelligence, drones and 3D (three-dimensional) printing, as well as against the use of hate-speech and distortion of religious beliefs by extremist and terrorist groups.

UN Global Counter-Terrorism Coordination Compact

It is an agreement between the UN chief, 36 organizational entities, the International Criminal Police Organisation (INTERPOL) and the World Customs Organisation, to tackle the scourge of international terrorism.

• To ensure that the United Nations system provides coordinated capacity-building support to Member States, at their request, in implementing the UN Global Counter-Terrorism Strategy and other relevant resolutions.
• To foster close collaboration between the Security Council mandated bodies and the rest of the United Nations system.
• UN Global Counter-Terrorism Compact Coordination Committee will oversee and monitor the implementation of the Compact which will be chaired by UN Under-Secretary-General for counter-terrorism.
• It will replace the Counter-Terrorism Implementation Task Force, which was established in 2005.

Global Counter-Terrorism Strategy

• The United Nations General Assembly (UNGA) adopted it in 2006 and it is a unique global instrument to enhance national, regional and international efforts to counter terrorism.
• UNGA reviews the Strategy every two years, making it a living document attuned to Member States’ counter-terrorism priorities.

Way Forward:

The world must acknowledge that terrorist organisations use not only extortion and money laundering, drugs and wildlife trafficking to raise funds, but, in the present and future, will use loopholes in digital security and the “anonymity” provided by block chain technology to access finances. Moreover we should follow the four pillars of the Global Strategy include:

• Measures to address the conditions conducive to the spread of terrorism.
• Measures to prevent and combat terrorism.
• Measures to build states’ capacity to prevent and combat terrorism and to strengthen the role of the United Nations system in that regard.
• Measures to ensure respect for human rights for all and the rule of law as the fundamental basis for the fight against terrorism.