GS Notes

Polity Notes 03

4 min read

Mains Insights

Mediation Act, 2023 & ADR

  1. Significance:
    • Reduces Judicial Burden: By promoting out-of-court settlements, it directly addresses the issue of judicial pendency, a major challenge for the Indian justice system.
    • Ease of Doing Business: Provides a faster, cheaper, and more efficient mechanism for resolving commercial disputes, improving India’s ranking and attracting investment.
    • Preserves Relationships: Unlike adversarial litigation, mediation is collaborative and helps preserve personal and commercial relationships.
    • Access to Justice: Makes justice more accessible and affordable for the common citizen.
  2. Challenges in Implementation:
    • Cultural Shift: Requires a shift in mindset from adversarial litigation to collaborative settlement among lawyers and litigants.
    • Capacity Building: Need for a large pool of professionally trained and certified mediators across the country.
    • Infrastructure: Requires adequate physical and digital infrastructure for mediation centres.
  3. Debate on Pre-litigation Mediation: While the Act encourages pre-litigation mediation, making it mandatory for certain disputes could be seen as a barrier to accessing courts. The balance between mandatory processes and voluntary participation is a key policy debate.

CEC and ECs Act, 2023

  1. Independence of ECI - A Historiographical Debate:
    • The Constituent Assembly debates show that figures like Dr. B.R. Ambedkar envisioned an Election Commission insulated from executive pressure.
    • The Supreme Court in Anoop Baranwal (2023) case emphasized that the independence of the ECI is crucial for maintaining the purity of the electoral process and is part of the basic structure of the Constitution.
  2. Cause-Effect Analysis:
    • Cause: The new Act changes the composition of the selection committee by replacing the CJI with a Cabinet Minister.
    • Effect: This creates a 2:1 majority for the executive, raising concerns about its ability to appoint pliable commissioners, which could potentially compromise the neutrality and independence of the ECI.
  3. Comparing Appointment Mechanisms:
    • India’s New Model: Executive-dominated selection committee.
    • SC’s Interim Model: Balanced committee with judicial presence (PM, LoP, CJI).
    • International Models: In South Africa, the President appoints commissioners based on recommendations from a judicial commission and a parliamentary committee. In the UK, a committee of parliamentary speakers oversees the process. India’s new law appears to be a regression from the democratic ideal of institutional independence.

Simultaneous Elections

  1. Arguments in Favour (Governance Perspective):
    • Reduces huge expenditure on frequent elections.
    • Minimizes policy paralysis due to the prolonged imposition of the Model Code of Conduct (MCC).
    • Allows governments to focus on long-term governance rather than being in constant election mode.
    • Reduces the deployment burden on security forces.
  2. Arguments Against (Federalism & Democracy Perspective):
    • Constitutional Hurdles: Requires amendments to multiple articles, including those related to the terms of the Lok Sabha (Art. 83) and State Assemblies (Art. 172).
    • Undermining Federalism: May lead to national issues overshadowing local issues in state elections, weakening the federal character of Indian polity.
    • Forced Dissolutions: Requires artificial curtailment or extension of the terms of several State Assemblies, which goes against the democratic mandate of the people.
    • Logistical Challenges: Requires a massive increase in the number of EVMs, VVPATs, and polling personnel.

Digital Personal Data Protection Act, 2023

  1. Balancing Act: The Act attempts to balance three competing interests:
    • Individual’s Right to Privacy: Upholds this through consent-based data processing.
    • State’s Security and Governance Needs: Provides wide exemptions for government agencies (‘legitimate uses’).
    • Innovation & Digital Economy: Aims to provide a clear regulatory framework for businesses without being overly restrictive.
  2. Debate on State Exemptions: The most significant criticism is against Section 7(b), which allows the government to exempt its agencies from the Act’s provisions on grounds like national security, public order, etc. Critics argue this could lead to a “surveillance state” without adequate checks and balances, diluting the very essence of the Puttaswamy judgment.
  3. Comparison with GDPR:
    • Scope: GDPR is more extensive and provides more stringent rights (e.g., right to be forgotten).
    • Exemptions: GDPR has narrower exemptions for the government.
    • Penalties: GDPR’s penalties are higher (up to 4% of global annual turnover).
    • The Indian Act is seen as more business-friendly but potentially less protective of individual rights compared to the EU’s GDPR.

Criminal Law Reforms

  1. Rationale & Significance: The reforms aim to decolonize Indian law, simplify procedures, incorporate technology, and introduce modern definitions of crime. This is a crucial step in reforming the criminal justice system to make it more citizen-centric and efficient.
  2. Key Debates:
    • Sedition Law: While Section 124A of the IPC is gone, the new provision in BNS is argued to be equally, if not more, stringent and vague, potentially stifling dissent.
    • Police Custody: Provisions in BNSS allowing for police custody to be sought in parts throughout the investigation period have raised concerns about potential misuse and violation of the rights of the accused.
    • Implementation Challenge: The success of these reforms hinges on massive capacity building, including training for police, prosecutors, and the judiciary, and a significant upgrade in forensic infrastructure across the country.

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