0

“One Nation, One Election”: A Game-Changer in the Indian Electoral System

Articles , , , , , , ,

Introduction: Scope and Definition of Simultaneous Elections

The idea of One Nation, One Election (ONOE) aims at restructuring and synchronizing the Indian election system. It is a system where the Lok Sabha and Vidhana Sabha (State Assemblies) elections are held simultaneously once in five years. In such a scenario, a voter would normally cast his/her vote for electing members of Lok Sabha and State Assembly on a single day and at the same time. But however, it does not necessitate the voting process to happen in a single day. It can be conducted in a phase-wise as per the existing practice provided voters in a particular constituency vote for both State Assembly and Lok Sabha the same day. The initiative will need a constitutional amendment, which will require ratification by 50% of the states.

This system however, excludes the elections of Panchayats, State municipalities and by-elections. The concept “Simultaneous Elections” ideally implies that elections to all the three tiers of constitutional institutions should take place on a single day. But, the third tier institutions which are primarily a State subject as per the Constitution are directed and controlled by the State Election Commissions.  These institutions are so significantly large in number that it becomes almost impossible to synchronize their election schedules with that of Lok Sabha and State Assembly elections.

History of Simultaneous Election

The concept of simultaneous elections is, in fact, not new to the country. Post adoption of the Constitution, the elections to Lok Sabha and all State Legislative Assemblies were held simultaneously between 1951 till 1967 when the cycle of synchronized elections got disrupted. The first general elections to Lok Sabha and all State Legislative Assemblies were held together in 1951-52.

This practice continued over three subsequent general elections held in the years- 1957, 1962 and 1967. However, due to the premature dissolution of some Legislative Assemblies in 1968 and 1969, the cycle got disrupted for the first time. In 1970, Fourth Lok Sabha was itself dissolved prematurely and fresh elections held in 1971. The term of Fifth Lok Sabha was extended till 1977 under Article 352. As a result of all such premature dissolutions and extension, the cycle of simultaneous elections has been firmly disrupted. The table below presents the timelines of key milestones of various Lok Sabhas till date.

Relevant Constitutional and Statutory provisions

The aspects of constitution, dissolution and expiration of the legislatures (Lok Sabha / State Assemblies) are governed by constitutional and statutory provisions. Some of the relevant provisions for the instant matter are – 

  • Conduct of elections

Article 324 of the Constitution mandates the Election Commission of India (ECI) to supervise, direct and control elections to the offices of President, Vice President, both houses of Parliament (Lok Sabha & Rajya Sabha), State Legislative Assemblies and State Legislative Councils.

Further, 73rd and 74th amendments to the Constitution in 1992 provided for the creation of State Election Commissions (SECs) and are mandated to perform the above duties for constituting the third tier of Government in both rural and urban areas (Panchayati raj institutions, municipal bodies etc).

Besides this, the Parliament has enacted the Representation of People Act, 1950 & 1951 and the Rules framed there under, viz., Registration of Electors Rules, 1960 and Conduct of Election Rules, 1961 to facilitate the conduct of elections by the ECI.

The Representation of People Act, 1951 provides the statutory basis for Election Commission of India (ECI) to conduct elections in the country. Under Sections 14 and 15 of the Act, ECI is empowered to notify elections to both Lok Sabha and State Legislative Assemblies six months prior to the end of normal terms of these Houses. These provisions may be used to hold elections without extension of terms of some Assemblies.

  • Term of Lok Sabha and State Legislative Assemblies

Article 83 of the Constitution of India provides for the tenure of both Houses of the Parliament (Lok Sabha and Rajya Sabha). Further, Article 83(2) provides for a term of five years for Lok Sabha, from the date of its first sitting unless dissolved earlier. It also states that the 5 years tenure period can be extended by a maximum of one year only in the case of an emergency. A similar provision also exists for State Legislative Assembly, under the Article 172 (1)) of the Constitution.

  • Pre-mature dissolution of Lok Sabha or State Assemblies

Article 85 (2)(b) of the Constitution of India provides the President with the power to dissolve Lok Sabha. Similar provision for dissolution of State Legislative Assemblies by the Governor of State is provided under Article 174 (2)(b). In the case of President’s Rule as provided under Article 356, the Legislative Assembly of the said State may be prematurely dissolved by the President.

It is important to note the judgement of S R Bommai v. Union of India in this context. The Court held that the power under Article 356 should be used very sparingly and only when President is fully satisfied that a situation has arisen where the Government of the State cannot be carried on in accordance with the provisions of the Constitution. Otherwise, the frequent use of this power and its exercise are likely to disturb the Constitutional balance. Thereby, declared that the States have anindependent constitutional existence, and they have as important a role to play in the political, social, educational and cultural life of the people as the Union.

  • Collective Responsibility of Council of Ministers and No-confidence Motion

According to the Article 75(3) of the Constitution, the Council of Ministers shall be collectively responsible to the House of the People. At the level of States too, Article 164(2) provides for a similar responsibility of the Council of Ministers to the State Legislative Assembly.

The Executive, therefore, derives its legitimacy from the Legislature and remains in power as long as it enjoys the confidence of the latter. A No-confidence Motion can be passed if either the Lok Sabha or the State Legislative Assembly loses confidence in the Council of Ministers. It can fall any time with the passage of a No-confidence Motion in that House.

Pros and Cons of the Policy

The proponents of such a proposal argue that simultaneous polls will reduce expenses associated with holding elections. It is reported that the 2014 general elections cost the public exchequer an estimated ₹3,870 crore. It has also been pointed out that the Model Code of Conduct currently comes into effect twice in a five-year election cycle resulting in prolonged “governance downtime”.

However, opponents argue that this is likely to favour larger political parties with a national presence while disproportionately affecting smaller regional parties. A 2015 study by the independent think tank IDFC Institute revealed that between 1999 and 2014, there was a “77% chance that the winning political party or alliance will win both the Lok Sabha and Assembly elections in that state when held simultaneously.” This figure drops to 61% if the elections are held even six months apart.

Recommendations of the High-level Panel on ‘One Nation, One Election

In September 2023, the Union Government set up a ‘High Level Committee on One Nation, One Election’ under the Chairmanship of former President of India, Ramnath Kovind. 

The High Level Committee has met on three occasions and sought the views of various national and State political parties on the subject of a common elections schedule. 

The panel unanimously recommended simultaneous elections for Lok Sabha and State Assemblies as the first step followed by synchronised local body polls within 100 days, highlighting that such a mechanism will augment development and social cohesion and deepen the “foundations of the democratic rubric.”

  • Need for alleviating “huge burden” on stakeholders

Emphasizing the need to restore the cycle of simultaneous elections, the panel pointed out that conducting several elections every year casts a “huge burden” on stakeholders such as the government, businesses, workers, courts, political parties, candidates contesting elections, and the civil society at large. Accordingly, it said that the government must develop a “legally tenable mechanism” to ensure that elections to the Lok Sabha, State Assemblies and local bodies can be held simultaneously by 2029. It also maintained that simultaneous polls do not infringe upon the fundamental rights of the citizens or the basic structure of the Constitution.

  • Two Step Process for Simultaneous Elections

The Committee has suggested a two-step process for making simultaneous polls a reality. First, it recommended holding simultaneous elections for the Lok Sabha and State Legislative Assemblies. According to the report, no ratification by the states will be required for the constitutional amendment.

Second, it proposed synchronising the elections for municipalities and panchayats with the general (simultaneous Lok Sabha and Assembly) elections in a manner that ensures that the former is conducted within 100 days of the latter.

Thereafter, the President will have to issue a notification on the same date as the date of the first sitting of the Lok Sabha designating it as the “appointed date” for the synchronisation of elections. Once such a date is fixed, the terms of all State Assemblies constituted after it shall end with the expiry of the Lok Sabha’s term. This will result in most State governments being unable to complete their stipulated five-year term even if they enjoy a majority.

If the new government elected after the 2024 Lok Sabha polls accepts these recommendations and immediately initiates the process, the first simultaneous polls could be held as early as 2029. During this transition period, all States with elections due between June 2024 and May 2029 would see their terms expire alongside the 18th Lok Sabha. Consequently, some State Assemblies would have terms of less than five years as a one-time measure to facilitate this synchronization.

  • Single electorate roll

The committee also recommended that Article 325 be amended to enable the preparation of a single electoral roll and single Elector’s Photo Identity Card (EPIC) by the ECI, in consultation with the State Election Commissions (SECs). If this recommendation is accepted, the process of creating electoral rolls will be taken over by the ECI, and SECs will play a purely consultative role. These amendments will require ratification by not less than one-half of the states.

  • Ratification by States

Article 368 governs the process of amending the Constitution. While some provisions can be amended in the same way ordinary legislations are passed— through a simple majority of those present and voting in each House of the Parliament; others require a “special majority” i.e., not less than two-thirds of the members present and voting in each House of the Parliament as well as by a majority of the total membership of each House.

  • Meeting logistical requirements

The committee has recommended that for meeting logistical requirements, the Election Commission of India will plan and estimate in advance, in consultation with the State Election Commissions, and take steps for the deployment of manpower, polling personnel, security forces, EVMs/VVPATs, etc., so that free and fair simultaneous elections are held in all the three tiers of the government.

Conclusion

The outcome of ‘One Nation, One Election has the potential to alter the fundamentals of democratic set-up and reset the federal structure, at this juncture, it is necessary to examine the legal issues arising out of it. The recommendations of the Committee will have to be evaluated as to its practicality and design a possible solution for simultaneous elections. Further, the safeguards will also be required to ensure the continuity of the cycle of simultaneous Elections. There is a need to reduce expenditures incurred on continuous elections and yet maintain the balance of federal polity and effective governance.

References

Government of India, NITI Aayog, Notes/Inputs provided by the NITI Aayog.

https://indianexpress.com/article/explained/one-nation-one-election-kovind-panel-faq-9213797/

https://www.nextias.com/ca/editorial-analysis/24-01-2024/feasibility-of-one-nation-one-election

https://www.thehindu.com/news/national/watch-one-nation-one-election-what-did-the-panel-recommend/article67953798.ece

https://www.hindustantimes.com/india-news/2step-process-amendments-a-look-at-one-nation-one-election-panel-proposals-101710412844212.html

Article Written By – Keerthi K

0

Madras HC: PM Modi’s road show allowed, but with restrictions – Leaders’ connection with electorate should be unhindered.

Articles

Introduction

Significant attention and discussion have been generated in legal and political circles by the recent ruling in the matter of W.P.No.7377 of 2024, which involved J.Ramesh Kumar, the BJP District President, and the Commissioner of Police, Coimbatore. The argument centers on the vital question of authorising the Honorable Prime Minister of India to conduct a road show. The High Court handed down a historic ruling in this case on March 15, 2024, addressing security concerns, political leaders’ public engagement responsibilities, and the fundamental rights of assembly. Because it explores the difficult balance between protecting the democratic freedom of citizens to communicate with their elected representatives and guaranteeing the safety and security of prominent dignitaries like the prime minister, this decision is extremely significant. In addition to having an immediate effect on the parties concerned, the court’s decision establishes a precedent for matters involving political events, public gatherings, and the exercise of constitutional rights in democracies.

Background

J Ramesh Kumar, the Coimbatore BJP District President, filed a petition against the Coimbatore Commissioner of Police. The main focus of the case is the petitioner’s request for authorization to hold a road show on March 18, 2024, along Coimbatore’s Mettupalayam Road, a distance of 4 kilometers. The Hon’ble Prime Minister of India was scheduled to participate in this road show with the goal of promoting direct public contact and increasing public knowledge of the numerous welfare initiatives and programs launched by the Prime Minister’s office.

The petitioner sought adequate police protection for the event to ensure the safety and security of all participants, especially given the high-profile nature of the Prime Minister’s presence. However, the petition faced a setback when the Assistant Commissioner of R.S.Puram Range, Coimbatore, rejected the request through an order dated 14th March 2024. The rejection was based on concerns regarding the communal sensitivity of the proposed location for the road show, as well as the absence of prior permissions granted for similar events.

This rejection prompted J.Ramesh Kumar to challenge the decision through a writ petition under Article 226 of the Constitution of India, seeking a Writ to quash the order and compel the authorities to grant permission for the road show.

Court Proceedings:

Petitioner’s Arguments:

The BJP District President, J. Ramesh Kumar, made strong arguments in favor of his case before the High Court. He underlined how crucial the road show is to the Hon. Prime Minister of India’s ability to interact directly with the people and spread awareness of welfare policies and programs. In addition to highlighting the peaceful and educational nature of the planned event, the petitioner emphasised the importance of political leaders interacting with citizens.

Respondent’s Defense:

Conversely, the Assistant Commissioner of R.S. Puram Range and the Commissioner of Police, Coimbatore, defended their decision to deny permission for the road show. They raised issues about the location’s potential impact on communal sensitivities, the lack of previous approvals for events of a similar nature, and the general requirement to uphold law and order during public events featuring well-known individuals.

Judgement
Court’s Analysis of Arguments:

The High Court, under the stewardship of the Honorable Mr. Justice N. Anand Venkatesh, meticulously analyzed the arguments presented by the petitioner and the respondents. The court considered the petitioner’s assertion of the road show’s peaceful and informative nature, juxtaposed against the security apprehensions raised by the police authorities regarding communal sensitivities and law and order maintenance. The court weighed the petitioner’s right to conduct political activities and the Prime Minister’s prerogative to engage with the public against the legitimate security concerns raised by the police authorities. The court deliberated on the delicate balance between ensuring public safety and upholding democratic principles of free speech and assembly.

Key Considerations:

In reaching its decision, the court deliberated on the fundamental rights enshrined in the Constitution of India, particularly the right to freedom of assembly and expression. The court also considered the responsibilities of law enforcement agencies to ensure public safety and security, especially during events involving high-profile dignitaries like the Prime Minister.

Decision and Directives:

Ultimately, the High Court rendered a pivotal judgment, allowing the writ petition filed by J. Ramesh Kumar and overturning the rejection order issued by the Assistant Commissioner. “The Road Show is going to take place after 5 PM in some arterial road and therefore, there is no occasion to disturb the students studying for the examination. This reason assigned in the rejection order is unsustainable,” the Court noted.The court granted permission for the road show to proceed, albeit with specific directives aimed at addressing security concerns and ensuring the orderly conduct of the event. The court’s decision underscored the importance of striking a balance between security imperatives and democratic principles in a pluralistic society.

Impact and Implications of the Judgment:

Upholding Democratic Rights:

The judgment in W.P.No.7377 of 2024 underscores the judiciary’s commitment to upholding democratic rights, particularly the freedom of assembly and expression. By allowing the road show to proceed, the court reaffirmed the importance of political engagement and public discourse in a democratic society.

Balancing Security Concerns:

The court’s decision striking a balance between security concerns and democratic freedoms sets a significant precedent. By imposing specific conditions to ensure the safety of all participants, the judgment demonstrates a nuanced approach to addressing security challenges without unduly infringing on constitutional rights.

Precedent for Future Cases:

The ruling in this case is poised to have far-reaching implications for future disputes involving public gatherings, political events, and security considerations. The judgment sets a precedent for courts to carefully weigh security concerns against the imperative of facilitating political activities and public engagement.

Strengthening Democratic Principles:

Overall, the judgment reinforces democratic principles by recognizing the importance of political participation and public engagement. By addressing security concerns through specific directives, the court’s decision exemplifies a commitment to upholding constitutional values while navigating complex issues at the intersection of security and democracy.

Conclusion

The judgment encapsulates a multifaceted legal saga revolving around the intersection of democratic rights, security imperatives, and political engagement. By addressing the nuanced balance between facilitating public discourse and ensuring public safety, the court’s decision sets a significant precedent for future cases grappling with similar complexities. The judgment underscores the paramount importance of upholding constitutional values, safeguarding democratic principles, and navigating the intricate dynamics between security concerns and individual liberties. Through its directives and considerations, the court’s ruling in this case resonates with broader themes of governance, legal interpretation, and the enduring quest to harmonize competing interests in a democratic society.

As the legal landscape continues to evolve, the judgment serves as a beacon of justice, guiding the way forward in upholding the rule of law, protecting fundamental rights, and fostering a vibrant democratic ethos. In essence, the case encapsulates the essence of legal deliberations at the confluence of security, democracy, and individual freedoms, leaving a lasting imprint on the legal discourse and the fabric of democratic governance in India.

References

https://www.livelaw.in/high-court/madras-high-court/madras-high-court-pm-narendra-modi-road-show-permission-granted-coimbatore-252427

https://www.verdictum.in/court-updates/high-courts/madras-high-court-jramesh-kumar-v-commissioner-of-police-permission-granted-for-narendra-modi-roadshow-bjp-coimbatore-police-order-unsustainable-1525802

https://mhc.tn.gov.in/judis/index.php/casestatus/viewpdf/1112246

 

 

 

 

 

0

Implementation of CAA rules in accordance with the 2019 manifesto: Inclusion of Non-Muslims v/s Exclusion of Muslims – Preference or Discrimination

Articles , , , , , , , , , , , , ,

Introduction

The Union government on March 11th issued the rules for the Citizenship (Amendment) Act, or CAA, four years after the passing of the controversial law. The amendment seeks to fast-track the citizenship to Hindus, Sikhs, Buddhists, Jains, Farsis and Christians who entered India from three neighbouring countries Afghanistan, Pakistan and Bangladesh on or before December 31, 2014. These rules enable the minorities persecuted on religious grounds in Pakistan, Bangladesh and Afghanistan to acquire citizenship in our nation.

Background of the issue

The rationale to amend the Citizenship Act of 1955 is deeply related to the history of India. Before the Lok Sabha elections in 2014, BJP vowed to grant citizenship to Hindus prosecuted in the neighbouring nations. The Government, with respect to that, framed a few policies for the benefit of the Hindu communities from neighbouring nations who took shelter in India. One among them was the Citizenship Amendment Act, 2019 which provided concessions to minorities from Bangladesh, Pakistan and Afghanistan to obtain citizenship in India.

The Citizenship Amendment Bill was passed in the Lok Sabha on January 8, 2019, despite the intense objection and protest from the opposition party. Later, on December 11, 2019, the bill was approved in the Rajya Sabha altering the Citizenship Act of 1955 and received the President assent on 12 December 2019,

The law paved a path towards Indian Citizenship for the persecuted minorities (Hindus, Sikhs, Buddhists, Jains, Parsis, or Christians) from Afghanistan, Bangladesh, and Pakistan who arrived in India at the end of December 2014.   The act also eliminates the requisite for neutralization from less than eleven years to less than five years. The amendment also eased the residence requirement of these migrants for naturalization from 12 years to 6 years. The Amendment was fundamentally criticized for not providing this kind of Citizenship to Muslims in these Muslim-majority nations. This marked the first occasion religion was utilized as a criterion to be a citizen under Indian law and drew international criticism. The Office of the United Nations High Commissioner for Human Rights (OHCHR) declared it “fundamentally discriminatory”. The Indian government’s “goal of protecting groups that are being targeted is a good thing” must be achieved through an equal and non-discriminatory “robust National asylum system”. criticised as discriminating based on religion, specifically by excluding Muslims.

CAA rules, 2019

The 39-page Rules notified in the e-gazette on Monday prescribe the modalities and procedure for eligible individuals to apply for Indian citizenship. The Rules specify what documents and paperwork are required for putting forward and considering a claim of citizenship.

The government exercised its power conferred under Section 18 of the Citizenship Act, 1955 to further amend the Citizenship Rules, 2009.

Rule 10A – Eligibility criteria and requisites for the grant of citizenship by registration or naturalisation under Section 6B.

  • The person must be national of any one of the following countries Pakistan, Afghanistan,
  • The person belongs to any one of the following minority communities in the respective country Hindu, Sikh, Jain, Buddhist, Parsi,
  • The person must have been entered in India on or before 31st December, 2014.
  • The rule states that a person of Indian origin, person married to a citizen of India, minor child of a citizen of India, person whose parents are registered as citizens of India, person who is registered as an Overseas Citizen of India Cardholder shall be eligible to make an application for the grant of citizenship. The applicants must comply with the provisions of Section 5 and submit the applications in prescribed forms.
  • Any individual who has resided in India throughout the period of 12 months immediately before making an application for registration or been in the country during the 8 years immediately preceding the said period of 12 months for a period of not less than 6 years. Thus, the rule relaxed the residence requirement for naturalization of the migrants from twelve years to just six years.

Further, the person opting for citizenship by naturalization shall fulfill the qualifications under the third schedule by providing the following documents –

  1. An affidavit verifying the correctness of the statements made in the application, along with an affidavit from an Indian citizen testifying the character of the applicant.
  2. A declaration from the applicant that he has adequate knowledge of one of the languages as specified in the Eighth Schedule to the Constitution.

Every application made under this rule must include the following documents –

  1. a copy of any one of the documents specified in Schedule IA;
  2. a copy of any one of the documents specified in Schedule IB; and
  3. an affidavit in format specified in Schedule IC.

Procedure to apply for Citizenship – Rule 11A and 13A

  • Submission of Application – The applicant shall submit an application for registration or naturalization under section 6B in electronic form to the Empowered Committee through the District Level Committee as may be notified by the Central Government.
  • Acknowledgement – On submission of the application, an acknowledgement in Form IX shall be generated electronically.
  • Document Verification – The District Level Committee led by the Designated Officer, verifies the documents submitted along with the application.
  • Oath of Allegiance –The Designated Officer administers the oath of allegiance specified in the Second Schedule to the Citizenship Act, 1955, to the applicant. The signed oath, along with confirmation of document verification, is forwarded electronically to the Empowered Committee.
  • Refusal Consideration –The Committee has the power to reject the application if an applicant fails to appear in person despite reasonable opportunities.
  • Scrutiny of Applications – The Empowered Committee referred to in rule 11A scrutinizes the application for grant of citizenship under section 6B to ensure that the application is complete in all respects.
  • Grant of Citizenship – The Empowered Committee may grant the applicant the citizenship of India if, it is satisfied that the applicant is fit and proper person to be registered/naturalized.

List of documents to be attached with the prescribed forms –

  • A copy of any one of the document in Schedule 1A ( Annexure – 1)
  • A copy of any one of the document in Schedule 1B ( Annexure – 2)
  • An Affidavit in format as in Schedule 1C ( Annexure – 3)
  • A copy of the valid or expired Foreign Passport, If available
  • A copy of the valid or expired Residential Permit, If available
  • Evidence of the date of birth of the parents or Evidence of his/her husband’s /wife’s Indian Nationality a copy of the passport or birth certificate as the case may be.

Schedule 1A provides for a list of documents that the applicant must submit in order to prove that he/she is a national of any of the three countries (Afghanistan/Bangladesh/Pakistan)

Schedule 1B provides for a list of documents that the applicants must submit in order to prove that he/she has entered into India on or before 31st December, 2014

Assam and CAA

The National Register of Citizens is a registry of all lawful citizens. Its creation and maintenance were made mandatory by the amendment in 2003 to the Citizenship Amendment Act. In January 2020, the NRC was only implemented in states like Assam. However, the BJP has promised to implement it across the entire country of India in its election manifesto. The NRC records all legally-qualified citizens to ensure that those who are not documented could be deemed illegal immigrants (often known as “foreigners”). The NRC’s experience with Assam NRC shows that many individuals were classified as “foreigners” because their documents were considered insufficient.

It is criticized that the current amendment to the Citizenship Act provides a “shield” for non-Muslims who can claim that they were refugees fleeing from the persecution of Afghanistan, Pakistan or Bangladesh. Further, it also protested for excluding Muslims from the same benefits.

The Legal Challenge

The amendment was challenged before the Supreme Court in 2020 by the Indian Union Muslim League (IUML). Since then, the validity of CAA is challenged before the SC through more than 200 petitions. The petitions include the Cong leader Jairam Ramesh, the Indian Union Muslim League, and it’s MPs, Lok Sabha MP and AIMIM president Asaduddin Owaisi, Ramesh Chennithala, RJD leader Manoj Sha and TMC leader Mahua Moitra, and political organisations such as the Assam Pradesh Congress Committee, Asom Gana Parishad (AGP), National People’s Party (Assam), Muslim Students’ Federation (Assam), and Dravida Munnetra Kazhagam (DMK).

The law has been questioned on the grounds of religious discrimination against Muslims and arbitrariness. The Centre filed affidavit stating that the issue was not amenable to judicial review since matters of citizenship, immigration and foreign policy fall squarely within the domain of Parliament.

In October 2022, a Bench comprising then Chief Justice of India U U Lalit and Justices Ravindra Bhat and Hima Kohli passed an order stating that final hearings would begin in December 2022 after CJI Lalit’s retirement. However, the cases on arbitrariness of CAA and pleas against the validity of Section 6B have not been heard since. According to the Supreme Court website, the case is currently listed before a Bench headed by Justice Pankaj Mithal.

The Right to Equality

The challenge to the CAA rests on the ground that it violates Article 14 of the Constitution, which says that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. The petitioners’ argue that using religion as a qualifier or a filter violates the fundamental right to equality.

The petitioners have argued that the National Register of Citizens (NRC) in Assam to identify illegal immigrants, along with the CAA, will result in the targeting of Muslims.

The court will have to look into whether the special treatment given to the so called “persecuted minorities” from the three Muslim-majority neighbouring countries only is a reasonable classification under Article 14 for granting citizenship, and whether the state is discriminating against Muslims by excluding them.

The Supreme Court has to satisfy the equality test under Article 14 laid down in its previous decisions. Firstly, the differentiation between groups of persons must be founded on an “intelligible differentia”, and second, “that differentia must have a rational nexus to the object sought to be achieved by the Act”.

The government has said that Muslims have been excluded from the group of “persecuted” minorities because Pakistan, Afghanistan, and Bangladesh are Islamic countries where Muslims are in majority. However, it will be tested whether these three countries were picked to provide preference to the non-muslims in these three countries or essentially to keep Muslims out of its framework. This question is important because the groups like Tamil Hindus in Sri Lanka, the Rohingya in Myanmar, or minority Muslim sects like Ahmadiyyas and Hazaras have not been provided with the same concession though being persecuted minorities in these countries.

Hence, this is a larger issue of making religion a ground for eligibility for citizenship that needs to be adjudicated by a Constitutional Bench and inquire if it violates secularism, which is a basic feature of the Constitution.

Conclusion

The Citizenship Amendment Act, 2019 is indeed a humanitarian step taken by the Government. In a world where fear and oppression, the CAA provides a ray of hope, to the refugees facing discrimination and persecution in neighboring countries like Pakistan, Afghanistan, and Bangladesh. The Government while taking such bold steps should also realize the implications of it on the society. The concerns of the Muslims must be taken into consideration and clarity must be provided on the same. It is thus, pertinent for the government to address both diversity and inclusivity.

References

0

Delisting of Apps from Google Play Store: Google v. Indian Developers

Articles , , , , , , , ,

Introduction

The Android Smart phones occupy a large market in India. Google’s Play Store constitutes the main distribution channel for app developers in the Android mobile ecosystem, which allows its owners to capitalize on the apps brought to market. For app developers, app stores have become a necessary medium for distribution of their apps to the end users and the availability of app store(s) is directly dependent on OS installed on a smart device. The US tech-gaint Google, thus, exercises a dominant position over this market by providing a platform for app downloads of various companies and start-ups on Google Play store[i].

According, to the Google Play Billing System (GPBS) and Google’s payment policies for android phones, the companies are obligated to pay a fees ranging from 11% to 30% depending upon their revenue for the access of in-app features and digital services. The developers under the policy have to pay Google 15% service fee for the first $1 million revenue earned by them and 30% of over $1million. The regulation of internet which, decades ago, was governed by the legislations of the Government is now being determined by the tech giants Apple and Google.

The payment of service charge for using the platform was never an issue for the developers, but the amount levied to avail the services rendered expensive and burdensome for the Indian market.

Events leading to removal of Apps from Google Play Store

On March 1st morning, Google announced that it would remove the apps of over a dozen companies from its marketplace for android phones that are non-complaint with its payment policy. Following this, Google delisted at least 23 apps from nine Indian developers from its Play Store. These include all thirteen apps from Matrimony.com – such as Bharat Matrimony, Kerala Matrimony and Jodi; three apps from InfoEdge – Naukri.com, Naukri Recruiter and 99 Acres; People’s Interactive’s Shaadi.com; Alt Balaji’s streaming service ALTT, and streaming services aha and stage. This affected around 95% of Indian Smart Phones market as the users were unable to search and download the apps from Google Play Store.

This action transpired when the Supreme Court declined to restrain Google from removing apps from its Play Store if they don’t comply with its billing policy.

Google, however, reinstated dozens of apps in spirit of cooperation that were de listed by the company on March 1 for resisting the firm’s platform fees on in app payments.

CCI’s anti-trust battle against Google

CCI imposes a monetary penalty of Rs. 1337.76 Crore on Google for anti-competitive practices in relation to Android mobile devices.

The antitrust watchdog had on October 20 imposed a penalty of Rs 1,337.76 Crore on Google for abusing its dominant position in multiple markets with its Android mobile operating system (OS), and prescribed a set of about a dozen key measures that the company has to comply with.

It directed Google to refrain from participating in anti-competitive practices that were found to be in contravention of the provisions of the Competition Act, 2002 and modify its conduct within a defined deadline. Google however paid the entire penalty amount of Rs 1,337.76 Crore imposed by CCI in the Android case after contesting it before different forums.

CCI imposes a monetary penalty of Rs. 936.44 crore on Google for anti-competitive practices in relation to its Play Store policies 

This is the second ongoing case against the tech giant by the CCI. India’s anti-trust regulator, the Competition Commission of India (CCI), on October 25, 2023 imposed a penalty of Rs 936.44 crore on Google for abusing its dominant position with respect to its Play Store policies. The commission has also issued a cease-and-desist order in which the regulator prescribed eight corrective measures that Google Play needs to implement to correct the anti-competitive practices[ii].

Legal battle over the Google Play Billing System

Post the CCI order, Google expanded its User Choice Billing (UCB) policy to all developers in India and updated its UCB policy. Accordingly, Google started allowing the developers in India to offer alternative billing systems. Developers choosing to do so had their service to Google reduced by 4%.

To comply with the policy, Google has given developers three options: opt for GPBS, have an alternative billing system, or operate on a consumption-only basis without paying a service fee. But app developers in India are not satisfied for two main reasons- first, despite opting for an alternative billing system, they were still obligated to pay Google an 11% or a 26% fee, which they say is unfair, and second, this, they argue, violates, the CCT’s order. the service fee charged was as high as 26% (just 4 percentage points drop from its earlier policy).

Eventually, 14 companies, including those whose apps were delisted, challenged Google Play Billing System (GPBS) in Madras High Court Two additional lawsuits by Disney+ Hotstar and Test Book followed. The Madras HC granted interim protection to all of them, but 12 of the original 14 companies filed a special leave petition in the Supreme Court. On February 9, the apex court did not grant these 14 companies protection from getting delisted but Disney+ Hotstar and Test Book’s protection continued[iii].

Conclusion

Google’s dominance in the smart phone apps market in India and its control over the online search market has been the issue of tussle. The decisions serves as a reminder to tech giants that market dominance comes with a responsibility to operate fairly and to avoid engaging in anti-competitive practices that restrict competition and harm consumers. As the technology industry continues to evolve, it will be essential for companies to operate in a manner that fosters fair competition, innovation, and consumer protection. The Billing Policy of Google is a long-standing issue. It is high time the Government intervenes and make regulations and administer the dominant players in the market.

[i] https://pib.gov.in/PressReleasePage.aspx?PRID=1870819

[ii] https://legal.economictimes.indiatimes.com/news/litigation/googles-appeal-against-ccis-rs-936-cr-penalty-delayed-by-nclat/105518431#:~:text=On%20January%2011%2C%20the%20tribunal,it%20later%20withdrew%20the%20case.

[iii]https://www.thehindubusinessline.com/info-tech/google-moves-a-motion-before-madras-hc-seeking-dismissal-of-disneys-suit/article67202541.ece

iv www.hindustantimes.com

0

Supreme Court puts an advertisement ban on Patanjali stating the brand is deceiving masses.

Articles , , , , , , , , , , , , , , ,

ABSTRACT

This article talks about the recent supreme court ban on the advertisement published by Patanjali. The ban was due to the misleading nature of the advertisements contributing to the dissemination of false information in the healthcare industry. The healthcare industry is frequently prone to misleading advertisements by AYUSH companies making false claims to the public for profit. Several government enactments and regulatory bodies and their contributions to control false marketing have been listed. The article delves deeper into the legal technicalities involved, current legislation on the same and plausible solutions to combat the problem.

INTRODUCTION

What’s the news, why in news?

Patanjali is in the news again for all the bad reasons. The Hon’ble Supreme Court has banned misleading advertisements published by Patanjali. The face of this brand is the widely known yoga guru Baba Ramdev. On 23rd August, 2023 the Supreme Court while hearing a writ petition filed by the Indian Medical Association condemned the misleading advertisements published in the electronic media by Patanjali. Such ads released by the company aims at making false claims about ‘curing’ diseases like diabetes, asthma etc. The claims are referred to as ‘false’ since there is no scientific backing to substantiate the same. The Chief Justice stated that Baba Ramdev can rightfully promote his practices of yoga and brand, but it is unnecessary for him to criticise other systems and practices in medicine. On 21st November, 2023 the Supreme Court had again issued a severe warning to Patanjali for its unabating misleading advertisements. Justice Amanullah also mentioned that the court will go to the extent of charging a fine of Rs. 1 crore on every product that claims to treat and ‘cure’ diseases. The court also mentioned that it has no intention of sparking a debate as to which system of medicine is better allopathy or ayurveda. The aim is to prevent the spreading of misinformation. The counsel for the brand guaranteed the court that no such advertisements will be made in any way including making statements in the media. The petition also addresses Baba Ramdev’s allegations blaming allopathy behind deaths during COVID-19. The court had also directed the Centre to take strict actions against the conduct of such companies under the Drugs and Magic Remedies (objectionable advertisements) Act, 1954. In its hearing on 27th February, the Hon’ble Court criticised the Centre for not taking any action. The court criticised the laidback attitude of the government as the petition was filed in 2022, and it has been two years since then. The Centre contended that under the Drugs and Magic Remedies Act, 1954 it is the responsibility of the state governments to ensure implementation but the court justly said that it is the duty of the centre to inform the state governments about the same and sought action. The IMA also informed the bench that Patanjali even after assuring the court to cease from producing misleading advertisement in its previous hearing has continued to do the same. The brand disregarded the orders given by the court which led the court to ban the advertisements of products related to diseases under the Drugs and Magic Remedies Act, 1954.

What inferences can be drawn from this news?

Yoga, an ancient practice, has crossed the boundaries of our country due to its innumerable health benefits. Baba Ramdev, a yoga guru, rose to fame as a teacher and promoter of the age-old practice. His popularity led him to start Patanjali Ayurved in collaboration with Balkrishna. The masses of the country have immense trust in Baba Ramdev and the products of his brand. Patanjali products like toothpaste, oils are widely used by the public. In light of these facts, when such a brand spreads misinformation, it influences the public at large. Making false claims of curing dangerous diseases can lead to severe consequences. It is important for people having serious health problems to consult professional doctors. The court proceedings are the testament of the negligent behaviour of the government and the concerned authorities in taking strict actions against such advertisements. The government continues to play the blame game instead of rising to action.

LEGAL FRAMEWORK IN PLACE

Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954[1]

This act aims to manage and regulate the promotion and advertisement of drugs in the context of claiming that such drugs have magical healing properties. Section 2©[2] of the act defines magic remedy which entails advertisement of drugs claimed to ‘cure’, mitigate, prevent or treat any kind of disease mentioned in schedule 1 of such act. Section 4 of the act clearly prohibits advertisements that aim to deceive the public and trick them into voluntary medication. Any violation of the provisions of this act shall amount to criminal offence and shall attract penalty amounting to imprisonment up to one year. The act aims to prevent self-medication by people as well as regulate the advertisement industry in this regard so as to prevent them from influencing the masses.

The constitutionality of this act was challenged in the case of Hamdard Dawakhana v. Union of India[3] on the grounds that it is violative of Article 19(1)(f) & (g)[4]. The court held that it is true that advertisement is a part of the freedom of speech, but the true essence and purpose of advertisement is to promote goods and services. And when this is done, it comes under the purview of trade and commerce since it is no longer the expression of ideas.

 The Drugs and Magic Remedies Objectionable Advertisement Rules, 1955

Rule 3 authorises the concerned persons to launch an investigation on advertisements that prima facie promotes drugs on false pretences. It also empowers the concerned authorities to cease the manufacturing and production of the same.

The Cable Television Network Act[5] and The Cable Television Network Rules[6]

The aforementioned act and rules have established a code for the publication of advertisements which is to be followed by all the concerned persons. Any violation will amount to imprisonment for a year or imposition of fine of Rs. 2000 or both as the case may be. An amendment to the rules in 2006 provides that the advertisement should not violate the code of conduct set out by the Advertisement Standards Council of India.[7]

Consumer Protection Act, 2019

The Consumer Protection Act, 1986 was repealed and replaced by this act to upkeep with latest technological developments. The primary objective of the act is to safeguard consumer interests from the harsh practices adopted by sellers and to establish relevant authorities for the settlement of consumer disputes.

Advertisement defined in section 2(1)[8] of the act includes publishing in electronic media.

Section 9[9] of the act states the rights of the consumers which includes the right to be protected against the marketing of goods, products or services which are hazardous to life and property; the right to be informed about the quality, quantity, potency, purity, standard and price of goods, products or services, as the case may be, so as to protect the consumer against unfair trade practices and the right to consumer awareness.

Section 2(28) defines misleading information as an act of publicising and spreading false information and guarantee about the nature, substance, outcome etc of the product. It basically states all the ways in which sellers fool the consumers[10]. The consumer must also act in a reasonable manner.

Section 2(47)[11] of the act gives a comprehensive definition of unfair trade practices which includes advertisements made on any platform spreading misinformation about the product being sold by the company.

Section 10[12] of the act talks about the establishment of the Central Consumer Protection Authority. The act entails the strength, process of appointment, powers and procedures od the CCPA.

Advertising Standards Council of India (ASCI)

ASCI is a not-for-profit self-regulatory body established for the regulation of advertisements under the companies act, 1956 to preserve consumer interests. It hasn’t been established under any legislation or government hence it does not constitute laws for the public or the related industries. People in the advertisement industry and the representative of aggrieved individuals formulate and abide by the principles formulated and laid down by the voluntary body. The principles of this body are Honesty, Decency, Non-harmfulness, and Fair play in a competition.

National Advertising Monitoring System (NAMS)

This regulatory body has been established by ASCI in 2012 in collaboration with TAMS Media to trace deceptive advertisements. They have been tasked to keep a track of newspapers as well TV channels in regional languages. It overlooks advertisements published in a plethora of sectors including banking, finance, health, medicine etc.

Uniform Code of Pharmaceuticals Marketing Practices (“UCPMP Code”)[13]

UCMP is another such regulatory body instituted under the Department of Pharmaceuticals in 2014 to restrict unethical and immoral practices used by companies. Any publicity of drug promotion must be approved by the respected authority and such information must be confirmed by the concerned bodies as well.

CRITICAL ANALYSIS

Advertisements are important in disseminating vital information to the public as they can help create awareness about a certain cause and help in the disclosure of such information in a quick span of time. In current times, companies misuse advertisements to get consumers to purchase their products. They make extravagant claims to sell their products for profit maximisation. They have frayed from the object of social responsibility to just tricking people. Such a spread of misinformation, especially in the medical industry, can prove to be fatal. The claims made by Patanjali to cure diseases such as diabetes that require special attention and care by medical professionals are not only misleading but outrageous. There is no scientific backing to this claim made by the brand.

Big companies by means of visual aid persuade the consumers further escalating the problem of misinformation. The target audience of these companies are easily susceptible to the methods used by them and are blindsided. Celebrities are made the ambassadors of such brands to reach a wide variety of audiences. Multiple channels of communication such as newspaper, internet are utilised to target different age groups. Even though the consumer protection act promises to protect the customers from evil practices adopted by the companies, hardly any action has been taken against such conduct. Misleading advertisements violate a plethora of consumer rights that have been guaranteed under the Consumer Protection Act. It violates the right of the consumers to information. Consumers have the right to know about every detail of the product being used by them including the side effects. It violates the consumer’s right to safety from the utilisation of products. Companies claiming instant lightening of the skin, rapid weight loss etc can cause long lasting problems to the health of the consumer. Another instance in which the brand Patanjali promoted products on its website aimed at improving the sexual performance of men and women. Such advertisements are strictly prohibited under the drugs and magic remedies act. In the case of K.C. Abraham v. The State of Kerala Peethaambaran Kunnathoor, Chennai[14] the court held that the promotion of the ayurvedic drug ‘Musli Power Xtra’ is in violation of section 7 of the drugs and remedies act. The efficiency of the product was questioned, and the company had to pay a penalty of Rs. 50,000.

The government has turned a blind eye to the manipulative tactics. Ultimately, it is the consumers who become the victim of such scams. Disregard to allopathy by AYUSH companies is a crisis that needs urgent attention of the authorities. According to WHO, spreading fake information is the major cause of hesitancy in taking vaccines and medicines provided by the government. Due to the overload in misleading advertisements people have formed a lot of misconceptions about the healthcare industry. It has become difficult for the government to convince people to take government-provided medicines. As it is said, ayurveda is the science of life. It is a way of living rather than a science that seeks to cure ailments. Certain diseases that have high risk require immediate attention and relief. That’s when allopathy tides in. Making bold statements like allopathy is the reason behind COVID-19 undermines people’s trust in medical science especially in tough times makes people lose hope in the system of medicine. The DMRA Amendment Bill dated 3rd February, 2020 has sought to increase the penalty, addition of more diseases and establishing an Ayurvedic, Siddha and Unani Drugs Advisory Board. All the current enactments only aim at curbing the advertisements rather than focusing on increasing consumer awareness.[15]

CONCLUSION

Given the widespread misuse of advertisement especially in the healthcare industry posing threats to the public at large, the government needs to come to the rescue of the citizens. Stringent actions need to be taken to set precedent for all such companies to cease from making false claims. Heavy penalties must be imposed on industries making extravagant claims. Policies need to be formulated and steps have to be undertaken to supervise advertisements by government authorities. There must be a government supervised and controlled platform accessible by the public wherein information regarding healthcare must be published to combat the problem of false claims made by big companies. Information must be provided in regional languages to ensure easy access and readability by all the sections of the society. Common health related myths must be busted in the same platform. Education also plays a vital role in this regard. Consumers must be made aware of prevalent health diseases and steps to be taken to prevent them. Healthline numbers must be provided in such a platform as well as location of nearby hospitals and the facilities provided therein. Online medical counselling as well as guidance must be provided by the government helping people in remote areas right from admission of the patient in the hospital to finances in case of medical emergencies. If the implementation is done diligently, then it will make a significant impact in the healthcare industry. The DMRA act is outdated calling for the need of new codified legislation.

REFERENCES

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8297168/

https://www.who.int/europe/news/item/01-09-2022-infodemics-and-misinformation-negatively-affect-people-s-health-behaviours–new-who-review-finds

https://www.livelaw.in/pdf_upload/248322022133848538order21-nov-2023-506018.pdf

https://www.livelaw.in/top-stories/baba-ramdev-should-not-abuse-medicine-systems-ayurveda-allopathy-supreme-court-ima-plea-207231

https://www.livelaw.in/top-stories/supreme-court-patanjali-baba-ramdev-misleading-advertisements-indian-medical-association-242694

https://www.livelaw.in/top-stories/supreme-court-issues-contempt-notice-to-patanjali-ayurved-its-md-for-misleading-ads-on-medicinal-cures-250636

https://www.livelaw.in/top-stories/entire-country-taken-for-a-ride-you-shut-eyes-for-2-years-supreme-court-pulls-up-union-for-inaction-on-patanjali-ayurved-ads-250686

[1] Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954, No. 21, Acts of Parliament, 1973(India).

[2] Drugs and Magic Remedies (Objectionable Advertisement) Act, § 2(c), 1954, No. 21, Acts of Parliament, 1973(India).

[3] Hamdard Dawakhana v. Union of India, 1959 SCC Online SC 38

[4] Constitution of India, art. 19(1)(f) & Constitution of India, art. 19(1)(g)

[5] Cable Television Network Regulation Act, 1955

[6] Cable Television Network Rules, 1994, GSR 729(E)

[7] Misleading Drug Advertisements: Busting the Myth and Protecting Consumers, 1.4 JCLJ (2021) 592

[8] Consumer Protection Act, 2019, S. 2(1)

[9] Consumer Protection Act, 2019, S. 9

[10] Consumer Protection Act, 2019, s. 2(28)

[11] Consumer Protection Act, 2019, S. 2(47)

[12] Consumer Protection Act, 2019, S. 10

[13] Uniform Code of Pharmaceuticals Marketing Practices 2014

[14] KC Abraham v. State of Kerala Peethaambaran Kunnathoor, Chennai WP (C) No. 11410 of 2011

[15] Direct Marketing and Advertisement of Certain Medical Devices to Patients in India – A Dilemma, 6.1 RSRR (2020) 158

Article written by- Rashi Hora

1 2 3 4 5 … 77