Differentiate between Governor and Lt.Governor under the Indian law

In India each state has a ceremonial Governor appointed by the President of India. Governor is the head of the state. Generally, a Governor is appointed for each state, but after the 7th Constitutional Amendment, 1956, a Governor can be appointed for more than one state.

Lieutenant-Governor is the head of a Union Territory. However the rank is present only in the Union Territories of Andaman and Nicobar Islands, Delhi and Pondicherry (the other territories have an administrator appointed).

Thus, Governors head the State Government in the states while Lieutenant-Governors exist in some union territories and in the National Capital Territory of Delhi.

The Governors and Lieutenant-Governors are appointed by the President for a term of 5 years.

women who Inspired judicial verdicts or parliamentary enactments

Nirbhaya case led to tougher provisions and penalties under the Criminal Amendment Act of 2013. The victim died of the brutal injuries inflicted on her. The case also led to amendments in the Juvenile Justice Act as one of the accused in the case was a juvenile. On 7 May 2015, the Lok Sabha passed the Juvenile Justice (Care and Protection of Children) Bill, 2014, which seeks to allow children in the 16-18 age group to be tried as adults for heinous crimes. It is yet to be passed by the Rajya Sabha.

Bhanwari Devi case: Bhanwari Devi is an Indian dalit social-worker from Bhateri, Rajasthan, who was allegedly gang raped in 1992 by higher-caste men angered by her efforts to prevent a child marriage in their family. Her subsequent treatment by the police, and court acquittal of the accused, attracted widespread national and international media attention, and became a landmark episode in India’s women’s rights movement The apex court’s judgment in 1997, issued the Vishaka guidelines that put the onus on employers to provide a safe work environment for women.

Satya Rani Chadha case: Chadha launched the anti-dowry movement across India after her daughter died of burns in a dowry harassment case in 1979. Her agitation led to the government passing tighter laws against dowry deaths, shifting the burden of proof to the husband and his family, and making not just the husband but also his close relatives culpable.

Shah Bano case: On 23 April 1985, the Supreme Court granted maintenance to Shah Bano Begum, a 62-year-old Muslim mother of five who had been divorced by her husband, under Section 125 of the Criminal Procedure Code. Under pressure from the Islamic orthodoxy, the then Congress government, which had an absolute majority in Parliament, diluted this judgment by enacting The Muslim Women (Protection of Rights on Divorce) Act, 1986—entitling a divorced Muslim woman to maintenance only during the period of iddat, or a period of 90 days after divorce, according to Islamic Law.

Aruna Shanbaug case: Passive euthanasia granted by apex court conditionally in 2011 though the judgement has been suspended and the issue has been referred to a Constitution bench.

what is Difference between Furlough and Parole?

Parole and furlough are parts of the penal and prison system for humanising prison administration but the two have different purposes. Furlough is a matter of right but parole is not. Furlough is to be granted to the prisoner periodically irrespective of any particular reason merely to enable him to retain family and social ties and avoid ill-effects of continuous prison life. The period of furlough is treated as remission of sentence, that is it is considered as a part of the prison term.

Release on furlough cannot be said to be an absolute right of the prisoner. In 2013, The Bombay High Court refused to grant furlough to a convicted kidnapper and rapist, saying such people should not claim to mingle with society.

The court noted that “prisoners, whose conviction is for such offences, which affect larger public interest and public good so also public peace, then, they cannot claim to mingle with the society as a matter of right”.

Maharashtra State Home Department’s rule specifies that those who have been convicted for offences of dacoity, terrorism, kidnapping, smuggling and foreigner prisoners would not be entitled to furlough as a matter of right.

Furlough is leave from prison that every convict is entitled to by way of right. A prisoner is entitled to be released on furlough for 14 days in a year. However, he may seek a 14-day extension by citing reasons for it. For this, the prisoner has to submit an application to the prison superintendent.

Prison being a subject of the state administration, furlough rules differ from state to state. According to the prison manual in Maharashtra, the sanctioning authority is the Deputy Inspector General (Prisons). Depending on the reasons cited by the prisoner, a sanctioning authority may or may not extend his furlough.

While furlough is almost a prisoner’s right, the prison authorities grant parole to a prisoner based completely on their discretion. It is usually granted in cases of an emergency like a death in the prisoner’s family or illness of a family member. Prisoners also seek parole for weddings or to attend to financial or land-related matters in the family. At a time, a prisoner can avail 30 days of parole. In a year, a prisoner can avail 90 days of parole. However, he cannot be released on parole for more than 30 days at a time.

*Manu Sharma who is undergoing a life term in the Jessica Lall murder case of 1999 got married in a low-key ceremony in Chandigarh last week.Manu Sharma was on “furlough” when he married.

What is Living Wage? Differentiate it from minimum wage.

Art.43(DPSP) promises a living wage. In public policy, a living wage is the minimum income necessary for a worker to meet their needs that are considered to be basic. This is not necessarily the same as subsistence, which refers to a biological minimum, though the two terms overlap a lot. These needs include shelter (housing) and others such as clothing and nutrition. This wage generally means that a person working forty hours a week, with no additional income, should be able to afford the basics for quality of life, food, utilities, transport, health care, and minimal recreation. However, in many cases education, saving for retirement, and less commonly legal fees and insurance, or taking care of a sick or elderly family member are not included. It also does not allow for debt repayment of any kind.

The living wage differs from the minimum wage in that the latter is set by law and can fail to meet the requirements to have a basic quality of life. Minimum Wages Act 1948 is an Act of Parliament concerning Indian labour law that sets the minimum wages that must be paid to skilled and unskilled workers. States have their own laws. These wages are periodically revised.

Employee, employer, and the community win with a living wage. Employees would be more willing to work, helping the employer reduce worker turnover, and it would help the community when the citizens have enough to have a decent life.

A related concept is that of a family wage – one sufficient to not only support oneself, but also to raise a family.

What is Constitutional morality ?

Constitutional morality means adherence to the core principles of the constitutional democracy. The scope of constitutional morality is not limited only to following the constitutional provisions literally but it is so broad that it includes commitment to inclusive and democratic political process in which both individual and collective interests are satisfied.

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It encompasses ensuring the Constitutional values like rule of law; social justice; democratic ethos; popular participation in governance;individual freedom; judicial independence; egalitarianism; sovereignty and so on. While it is clear as to what Constitutional morality means, practical percolation of these values in governance and citizen entitlements requires a sensitive State apparatus- Parliament that is representative in a true sense; Executive that is responsive and empathic; and judiciary that is vigilant and empowering.

There are many laws made by Parliament that show great moral commitment like Food Security Law; CrPC amendments made in 2013 in favour of women. Similarly, judicial verdicts too. For example the recent verdict in Shreya Singhal case(2015) and various electoral reforms enforced by the apex court since 2013.

Preamble to our Constitution contains the most impeccable goals whose realization requires greatest commitment to morality. Corruption-free, transparent and accountable governance will go a long way in making one and all in India realize their potential: the sum and substance of Constitutional morality.

Difference between cognizable and noncognizable crimes

Crime can be cognizable or non-Cognizable. Difference between a cognizable and a non-cognizable offence is that in a non-cognizable offence the Police cannot arrest a person without orders of the court, i.e. without a Court warrant.

In a cognizable offense the police can take cognizance of the offence on its own i.e. it need not wait for the court orders as the law envisages that in such offences permission of the court to the police to investigate the crime is implicit.

In India, crimes like rape, murder, theft etc. are considered cognizable, and crimes like public nuisance, simple hurt, mischief etc. are considered non-cognizable.

The offences under 66A are cognizable: police authorities were empowered to arrest or investigate without warrants, based on charges brought under the Section. This resulted in a string of highly publicized arrests of citizens for posting objectionable content online, where the ‘objectionable’ contents were more often than not, dissenting political or innocuous personal opinions.

Undertrials and the criminal justice system

In a recent landmark order in Bhim Singh vs Union of India, the Supreme Court directed the fast-tracking of criminal cases, and the release of undertrial prisoners who had completed at least half their maximum prison term pursuant to Section 436A of the Code of Criminal Procedure (CrPC).

However, the relief does not apply for undertrial prisoners whose offence attracts death penalty.Bringing attention to the plight of those languishing in prison while awaiting trial, the court’s order coincides with the Narendra Modi government’s mandate to decongest prisons by releasing undertrials.

While laudable, these measures reiterate previous judicial directives (SC Legal Aid Committee vs UoI; Rama Murthy vs State of Karnataka) and Law Commission reports (78th and 239th). Releasing undertrials is a short-term solution; as explained below, it does not address the underlying causes for the high proportion of undertrials in India.

Pre-trial detention is a real problem. More than 66 per cent of India’s prisoners are undertrials, which is over twice the global average of 32 per cent. Of these 2,54,857 undertrials, more than 2,000 have been in prison for over five years. Overburdened by the flood of arrestees (nearly 75 lakh were arrested in 2012, according to the National Crime Records Bureau), prisons have experienced an increase in the number of undertrials and overcrowding. The average occupancy rate in India’s prisons is 112.2 per cent, with the situation particularly dire in states such as Chhattisgarh (252.6 per cent) and Delhi (193.8 per cent).

Unfortunately, reforms have favoured measurable quick fixes — fast-track courts and greater judge-population/ police-population ratios — without attempting to understand the high incidence of pre-trial detention. This can be explained by, first, criminal justice functionaries (police, prosecutors, judges and prison officials), who are often overworked, understaffed and underpaid; second, the socio-economic profile of the undertrials, which affects their ability to post bail; and finally, an ineffective legal aid system.

First, India has one of the lowest police-population ratios, of 131.1 officers per 1,00,000 population (against the UN norms of 222).

Corruption is also an endemic problem; in 2013, Transparency International found that 62 per cent people reported paying bribes during their interactions with the police. Misaligned incentives to arrest persons (for example, to demonstrate the progress of investigations) have resulted in 60 per cent of all arrests being “unnecessary or unjustified”.

Prosecutors lack basic facilities, such as access to legal databases, research and administrative assistants. The Delhi High Court, in a March 2014 order, noted that prosecutors’ laptop allowances exclude payment for internet facilities and legal databases; they do not have exclusive office space in courts and lose files because of insufficient file space. As the court observed, “one of the predominant cause(s) for delay in disposal of criminal case is due to shortage of public prosecutors.”

India has around 15 judges per million population, despite the 2002 Supreme Court order, in All India Judges’ Association, directing an increase to 50 judges per million by 2007. But the bigger problem is the backlog of more than three crore cases, with the SC itself currently hearing 64,000 cases. Delays in the conclusion of trials often result in pre-trial detention being used a punitive measure, causing denial of bail. They also spawn informal justice measures, such as plea-bargaining or jail adalats, where fewer procedural safeguards nudge the accused to plead guilty to escape detention in lieu of the time already served.

Prison officials are one of the most important, and often the most neglected, part of the criminal justice system. They regularly review the legal status of undertrials to determine whether they have spent enough time in custody to warrant release under Section 436A. Unfortunately, on average, only 66.3 per cent of the sanctioned posts are filled, with Bihar having only 21.1 per cent of the sanctioned prison official strength.

Second, the inability to post bail arises partly due to the profile of undertrials. Some two-thirds are SCs/ STs/ OBCs and three-fourths are illiterate or have studied till below Class X. Low education levels and economic activity mean lower incomes, making it harder to afford bail.

Third, the ineffectiveness of the existing legal aid system prevents these undertrials from being able to access statutory and constitutionally guaranteed legal aid. Poverty and low legal literacy makes many undertrials ignorant about the benefits afforded by Section 436A and their right to legal aid. Further, inadequate coordination among the legal services authorities and prison officials results in a failure to identify those requiring legal aid.

What are the solutions? Unfortunately, there are no easy answers. Simply sanctioning an increase in the judge-population ratio does not account for the existing reality of 4,564 judicial vacancies. Nor does it consider the work these criminal justice functionaries are doing; police officers often spend their time on law and order and VIP security, instead of criminal investigation. Thus, there are three officers for every “protected person”, but only one officer for 761 common citizens. Similarly, fast-track courts do not resolve the underlying structural problems since they function within the same procedural framework as regular courts.

Reforms should be oriented towards bringing criminal justice functionaries together and starting a conversation. Instead of merely announcing new initiatives, emphasis should be on ensuring the implementation of existing provisions, such as regularising the functioning of the Undertrial and Periodic Review Committees. Finally, efforts should focus on improving data collection and digitisation, and on mapping the existing reform landscape to prevent duplication of work.

The SC order and the government decision are steps in the right direction. Nevertheless, a lot more needs to be done to mainstream the prison reform agenda to ensure that our undertrial prison population is commensurate with, or below, the global average.By Vrinda Bhandari.

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Removal of Governors: What does the law say?

In the last few weeks, after the 16th Lok Sabha election, there has been some debate around powers of the central government to remove Governors.  News reports have suggested that the central government is seeking resignations of Governors, who were appointed by the previous central government.  In this blog, we briefly look at the key constitutional provisions, the law laid down by the Supreme Court, and some recommendations made by different commissions that have examined this issue.

What does the Constitution say?

As per Article 155 and Article 156 of the Constitution, a Governor of a state is an appointee of the President, and he or she holds office “during the pleasure of the President”.  If a Governor continues to enjoy the “pleasure of the President”, he or she can be in office for a term of five years.  Because the President is bound to act on the aid and advice of the Council of Ministers under Article 74 of the Constitution, in effect it is the central government that appoints and removes the Governors. “Pleasure of the President” merely refers to this will and wish of the central government.

The Supreme Court’s interpretation

In 2010, a constitutional bench of the Supreme Court interpreted these provisions and laid down some binding principles (B.P. Singhal v. Union of India). In this case, the newly elected central government had removed the Governors of Uttar Pradesh, Gujarat, Haryana and Goa in July, 2004 after the 14th Lok Sabha election. When these removals were challenged, the Supreme Court held:

  1. The President, in effect the central government, has the power to remove a Governor at any time without giving him or her any reason, and without granting an opportunity to be heard.
  2. However, this power cannot be exercised in an arbitrary, capricious or unreasonable manner.  The power of removing Governors should only be exercised in rare and exceptional circumstances for valid and compelling reasons.
  3. The mere reason that a Governor is at variance with the policies and ideologies of the central government, or that the central government has lost confidence in him or her, is not sufficient to remove a Governor.  Thus, a change in central government cannot be a ground for removal of Governors, or to appoint more favourable persons to this post.
  4. A decision to remove a Governor can be challenged in a court of law.  In such cases, first the petitioner will have to make a prima facie case of arbitrariness or bad faith on part of the central government.  If a prima facie case is established, the court can require the central government to produce the materials on the basis of which the decision was made in order to verify the presence of compelling reasons.

In summary, this means that the central government enjoys the power to remove Governors of the different states, as long as it does not act arbitrarily, without reason, or in bad faith.

Recommendations of Various Commissions

Three important commissions have examined this issue.

The Sarkaria Commission (1988) recommended that Governors must not be removed before completion of their five year tenure, except in rare and compelling circumstances.  This was meant to provide Governors with a measure of security of tenure, so that they could carry out their duties without fear or favour.  If such rare and compelling circumstances did exist, the Commission said that the procedure of removal must allow the Governors an opportunity to explain their conduct, and the central government must give fair consideration to such explanation.  It was further recommended that Governors should be informed of the grounds of their removal.

The Venkatachaliah Commission (2002) similarly recommended that ordinarily Governors should be allowed to complete their five year term.  If they have to be removed before completion of their term, the central government should do so only after consultation with the Chief Minister.

The Punchhi Commission (2010) suggested that the phrase “during the pleasure of the President” should be deleted from the Constitution, because a Governor should not be removed at the will of the central government; instead he or she should be removed only by a resolution of the state legislature.

The above recommendations however were never made into law by Parliament.  Therefore, they are not binding on the central government.

Article writtern by  for PRS .