FREE VACCINE PROMISE NOT A VIOLATION OF MODEL CODE OF CONDUCT

Pursuant to a direction of the Hon’ble Supreme Court, the ECI in 2013 framed certain guidelines for election manifestos of political parties. These guidelines were incorporated as Part VIII of the Model Code of Conduct and they are applicable from the date a political party issues its manifesto.

Firstly, as per the guidelines the manifesto shall not contain anything repugnant to the ideals and principles enshrined in the Constitution and shall be consistent with the letter and spirit of other provisions of Model Code.

Secondly, in light of the Directive Principles of State Policy enshrined in the Constitution that enjoin upon the State to frame various welfare measures there can be no objection to the promise of such welfare in the election manifesto. However, political parties should avoid making those promises which are likely to vitiate the purity of the election process or exert undue influence on the voters in exercising their franchise.

Lastly, in interest of transparency, level playing field and credibility of promises, it is expected that manifesto also reflect the rationale for the promises and broadly indicate the ways and means to meet the financial requirement for it. Trust of voters should be sought only on those promises which are possible to be fulfilled.

Advocate Saket Gokhale filed a petition on 22^nd October before the Election commission of India requiring the commission’s attention towards the comment made by the Bharatiya Janata Party’s leaders which promised free Covid-19 Vaccine to all the people of Bihar. 

The petition highlighted that the statement was not made by the leaders of BJP polling in Bihar but by the Union Minister of Finance Smt. Nirmala Sitharaman, which was objectionable and misleading. Secondly, the petition objected to the action of posting the comment via twitter from the official BJP handle.

The main ground of the petition was that the statement made by the political party is in ignorance of the Model Code of Conduct and of Article 14 of the Constitution of India since each and every state and every individual therein is equally entitled to access the vaccine. The petition stated that in the absence of any official policy by the Union government, such promises are baseless.  

Whereas, the political party’s reply to it stated that, since public health being a state subject the state governments can decide the course of action and hence make promises for the same.  

Further, in reply to this petition the Election Commission on 28^th October waived the objections and held that the statements and promises made by the party do not violate any code of conduct specifically those mentioned above. Hence the Election Commission of Indian disposed of the petition. 

(Food for thought- What truth will the above-mentioned statement hold for a common man’s understanding and is it likely to exert undue influence on people? – will be added in the slides) 

MADHYA PRADESH HC’S ORDER RESTRAINING PHYSICAL POLL, STAYED BY SC

Bihar State Elections are the first election in the country and the biggest one globally since the pandemic, the first phase of the elections will begin from 28th October, 2020. Several changes and guidelines to maintain norms of social distancing have been observed by the Election Commission keeping in mind safety of the voters and poll officials. The voting timings have been extended. An hour towards the end is reserved for Covid positive patients so that they are not deprived from participating in the democratic process. 

According to the Election Commission of India, 7 lakh hand sanitizers, 46 lakh masks, 6 lakh PPE kits, 6.7 lakh face shields and 23 lakh pairs of hand gloves have been arranged for the polls. Postal ballot facility has also been made available wherever required on request. Campaigns will also be restricted. Door to door campaigning is permissible but maximum 4 people can accompany the candidate. Apart from these large halls, thermal screening, compulsory masks throughout the process are other protocols in place.

Political campaigns have begun in Madhya Pradesh. Subsequently, a PIL had been filed in the High Court of Madhya Pradesh highlighting that physical campaigning by political parties was causing increase in the spread of COVID-19. In addition, the PIL also stated that nobody from the public is taking any action against these political parties. After hearing this PIL, the Gwalior bench of Madhya Pradesh High Court passed an order restraining any physical gathering for poll campaign amid the pandemic. 

The High Court’s order stated that the political parties will have to get permission from the district magistrate and if the parties want to hold any kind of physical gathering, a certificate from the poll panel will be required establishing that virtual campaign was not possible under any circumstances. Furthermore, the political parties will have to deposit money for procuring masks and sanitizers for the people taking part in the campaign. In its order, the High Court had also directed the District Magistrates of Datia and Gwalior to assure that FIRs are registered against former Chief Minister Kamal Nath and Union Minister Narendra Singh Tomar for alleged violation of COVID-19 norms during election campaigns.

Three pleas were filed against the HC’s order by Election Commission of India, by BJP leader Pradyuman Singh Tomar and Munna Lal Goyal and heard by Justices A M Khanwilkar, Dinesh Maheshwari and Sanjiv Khanna. The primary grounds of the same being, violation of “right to conduct elections” and disregarding the guidelines made by ECI. On 26^th October, 2020 SC while staying the order of Madhya Pradesh HC, declined to decide or elaborate upon the contentions or merits of the case raised by the appellants. 

Further, it directed the Election Commission of India to take cognizance of issues raised in the petition before the High Court and list it within six weeks. The rationale behind the non-interference was adherence to Part XV, Article 324, 329 of the Constitution which bar judicial interference in the electoral process and fixate the duty on ECI. Hence SC’s order restored the electoral process, however the ECI can take further actions in determining the validity of issues raised.

WHY ARE STATE GOVERNMENTS WITHDRAWING ‘GENERAL CONSENT’ FOR CBI INVESTIGATIONS?

The Central Bureau of Investigation (CBI) is constituted under the Delhi Special Police Establishment Act, 1946 and its jurisdiction to investigate primarily extends to the Union Territories as per Section 2 of the DSPE Act but the same can be extended by the Central government under section 5 of the act to the states, given the state government has given their general consent under Section 6 of the act. The state governments can through a notification under section 6 withdraw their consent but it will only have a prospective effect and will not affect the ongoing investigations. After which for CBI to investigate new matters within a state, it will have to demand a case specific consent and when denied that consent too, it can approach the Courts for carrying out the investigation. 

On 21^st October, the Maharashtra Government revoked its general consent under Section 6, the purpose behind the same was to protect the powers vested with the local state police and preserve the authority of state government. A few months ago, the CBI took over the Sushant Singh Rajput suicide case and the drug case. Recently, in the TRP scam case, the Mumbai police is already doing an investigation but the CBI has accepted an FIR in Uttar Pradesh based on a complaint for investigating the TRP scam. 

As per the procedure, if the state government has revoked its general consent and is not allowing a case specific investigation by CBI either, and if the case is partly in two or more states then the CBI can register the case in one state and seek assistance from the other state government. Similarly, in the TRP scam case one of options with CBI is to seek assistance of Maharashtra government, since the case is on a related subject matter. 

Maharashtra Government’s decision makes it the 5th state to have withdrawn the consent. In the past, Andhra Pradesh, West Bengal, Chhattisgarh and Rajasthan too have taken the same step. The key reason behind this is that the Central agency has on several occasions been alleged of misuse for “political purposes” and corruption. It has also been accused of specifically targeting the central government’s political rivals. For example, AP government’s move is considered as a consequence of the political tension between BJP-led Centre and Telugu Desam Party and Income Tax raids that were instituted against several leaders of the latter party. Similar instances were observed in the other states too. Formerly the Apex Court observed in the famous Coal scam case, the CBI as a “caged parrot” and “its master’s voice” 

Hence the revocation of consent can in certain instances be in the state’s interest, whereas in other cases it might not be in the people’s interest, who may demand interference by an independent agency.

OVERVIEW OF LABOUR CODES – 2020

Labour, a subject under the Concurrent list is witnessing several changes. Recently, the Parliament passed three bills, namely- 

1. Industrial Relations Code Bill, 

2. Social Security Code Bill,

3. Occupational Safety, Health and Working Conditions Code Bill.

These Codes bring about several reforms and aim at consolidating various existing laws on the above subject matter.

The first bill combines three erstwhile legislations- The Trade Unions Act, 1926, Industrial Employment (Standing Orders) Act, 1946 and The Industrial Disputes Act, 1947.

It brings notable changes and expands the definitions of several terms such as Industry, Industrial Dispute, Strike, Worker, Employer etc. The earlier threshold of 100 workers for the framing and applying of Standing Orders for matters listed in the Schedule to the Code has been increased to 300 workers. Matters relating to retrenchment, lay-offs and closure do not require permission of the government in establishments with more than 300 workers. The Code further prohibits strikes in all industrial establishments without prior notice of 14 days as opposed to the earlier legislations that limited this to public utilities. This provision has been vehemently criticized by Trade Unions across the country.

The second bill combines nine central legislations and empowers the Central Government to, by notification, apply the provisions of this Code to any establishment. The Code mandates registration and setting up of security funds for unorganized (home-based or self-employed or persons working in the unorganized sector), gig (delivery persons) and platform workers by Central and State Governments.

It makes provisions applicable in times of epidemics to reduce or defer employee/employer’s contributions under PF and ESI for up to three months. This bill too revises and expands certain definitions such as wages, inter-state migrant workers etc. Aadhaar ID has been made mandatory for availing the benefits provided under this Code.

With reference to the third bill, the earlier thresholds requiring a minimum number of workers have been changed in case of factories, contractors and hazardous activities. It fixes the maximum daily work hours at 8 hours per day. Further, it allows women to be employed in all establishments by following necessary safeguards as opposed to the earlier legislations that disallowed them from working in certain dangerous or hazardous operations. The code provides certain benefits for interstate migrant workers and mandates Central and State Governments to maintain databases and record their details on a portal.

The above-mentioned bills now await Presidential assent.

VODAFONE WINS AGAINST GOI- Arbitration Suit

Vodafone International Holdings BV v. India (PCA Case No. 2016-35)

Vodafone in 2007 acquired 67% stake in an Indian company named ‘Hutchison Whampoa ltd’ The Indian revenue authorities imposed tax on the same despite the fact that the transaction was an offshore transaction and among two non- residents. The Indian revenue authorities levied approximately Rs. 20,00 crore capital gains tax on Vodafone. 

The issue raised was regarding the jurisdiction of the Indian Revenue authority to perform such actions. The action taken by the authority was challenged before the Supreme court of India in Vodafone International Holding (VIH) v. Union of India (UOI).  The judgement favoured Vodafone after which there were attempts of mediation among the parties. Failure of which led to arbitration suits among the parties in 2014. 

Vodafone claimed that the action taken by the Government of India was violative of fair and equitable treatment as stated in Article 4 of India- Netherlands Bilateral Investment Treaty. 

And the Government claimed that the new tax reform- the Finance Bill, 2012 which came after the SC’s verdict allowed the addition of explanation in Section 9 of the Income Tax Act included such transactions and the same ought to have a retrospective effect on the deals.

As of now, the treaty stands terminated. The Permanent Court of Arbitration, Hague at last declared the award in favour of Vodafone. The government of India has to not only pay the company a huge amount of compensation but also 60% of the legal costs unless the government opts for further appeal.

Effects of the Vodafone – India case

(This is for another short post- don’t merge with above)

India’s Bilateral Investment Treaties with other countries are in danger since the recent arbitral award will attract other countries/parties to invoke the  ‘fair and equitable treatment’ (FET)  clause.  

This is to the extent that any law imposed by India amounts to violation of the FET clause. For instance the award will be relied on in the disputes in the following BITs

1. Russia-India BIT
2. Australia-India BIT

OVERVIEW OF THE NEWLY INTRODUCED FARMERS BILLS 2020

Two new bills relating to agriculture and farmers were introduced in June and were passed by Rajya Sabha on 23rd September 2019. Those agricultural bills are- 

1. 1. The Farmer’s Produce Trade and Commerce (Promotion and Facilitation Ordinance, 2020)
2. 2. The Farmer’s (Empowerment and Protection) Agreement on Price Assurance and Farm. 

These bills will impact the farmers, the consumers, the state and the middlemen established in the APMC system. 

The Farmer’s Produce Trade and Commerce bill aims to create an ecosystem where the farmers are free to sell their produce wherever and to whomever they want to, which directly paves way for the establishment of inter and intra state trade of farmers produce. The same is protected under the second bill as mentioned above which makes rules and regulations for empowering farmers to trade with various businesses and wholesalers. 

However, it doesn’t repeal or replace the previously established system which is under the Agriculture and Produce Marketing Committee Act. Hence, the bill is creating a choice for the farmers to carry out their trade on their will. 

In the previous APMC act, the farmer had to go through the “Mandis” as established in the act after which the commission agents would take their produce for traders to auction and purchase. The auction has to necessarily start at the Minimum Support Price which is decided by the Government of India. This price is decided for certain products only and this provision has not been repealed in the new ecosystem. The commission agents collect a market fee, cess and other taxes which are then collected by the State Governments which forms a huge part of their revenue. 

These bills address the issue of monopoly established by the traders through APMC. But the problem or difficulty with the bill is that it will be beneficial only if implemented effectively and if practiced by the farmers; given that they are aware of the same. Educating farmers about their rights and making them aware is an important part of the implementation process. 

Apart from that, the removal of middlemen will definitely benefit the consumers since the products will be comparatively cheaper. 

However, this bill will largely affect the State Revenue since they will not be receiving any taxes in the new ecosystem. Even though the bill aims to benefit the farmers, the view of the states was not considered appropriately and the states were not even given a fair participation in the Rajya Sabha where they protested against the bill.

A potential solution to that could be that the bills be introduced to a Select Committee which consisted of agricultural experts and the opposition being given a chance to be heard.

In that manner, the bill could have been speculated so as to benefit all and be compatible with the federal structure of the constitution and thereby upheld the democratic process of making a legislation.

Writ petition can’t be filed against a judicial order of hc-supreme court

The Apex Court in a recent judgement-  “Neelam Manmohan Attavar vs Manmohan Attavar (D) Thr LRs” reinstated a crucial point of law. 

It held that a writ petition under Article 226 of the Indian Constitution is not maintainable to challenge a judicial order or any order which has been passed by the High Court in exercise of its judicial powers. 

The decision was laid by a two judge bench consisting Justice DY Chandrachud and Justice KM Joseph in exercise of power of the Supreme Court to transfer cases under Article 139A.

The petitioner in the present case filed a writ petition under Article 226 in order to challenge a judgment dated 31 July 2018 delivered by a Single Judge of the Karnataka High Court under its criminal revisional jurisdiction. The petitioner prayed through the petition that the said judgement may be declared void/disabled/recalled and a fresh hearing be instituted before a higher/full bench. 

The petitioner based her submissions on the grounds that the order had not been written by the Judge of the HC and that while disposing the criminal revision the court had exercised its jurisdiction in a manner inconsistent with the provisions of Section 397 of the Code of Criminal Procedure 1973. Further, she challenged the findings of the court; deeming them to be erroneous. 

The respondent claimed that the litigant is not without any remedies since she can approach the court through Letters Patent Appeal or by way of a review or through article 136.

The court ruled in favour of the Respondent and disallowed the Writ Petition on grounds of maintainability. 

But SC left open the rights and remedies available to the petitioner by way of a Special Leave Petition under Article 136 of the Constitution to assail the judgment of the Single Judge bench.