02 April, 2021 - Daily Current Affairs Analysis & MCQs - The Daily News Simplified from The Hindu
- An Act of colourable legislation (Polity & Governance)
- Doctrine of Pith & Substance
- Doctrine of Colourable Legislation
- SC Judgments - Basic Structure
- Public Enterprises Selection Board (Polity & Governance)
- BIMSTEC meet skirts Myanmar violence (International Relation)
- Question for the Day
UPSC Current Affairs: An Act of colourable legislation | Page – 06
UPSC Syllabus: GS Paper II – Polity & Governance
Sub Theme: Places of Worship Act, 1991| Doctrine of Pith and Substance| Doctrine of Colourable Legislation | UPSC
Arguments made by the Authors related to the Places of Worship Act, 1991
- The pith and substance of the Act of 1991 is ultra vires as it bars judicial review of Supreme Court.
- This effectively negates one fundamental right to constitutional remedy under Article 32 of the Indian Constitution.
- Under Article 32 of the Constitution of India, the Supreme Court has the power to issue writs appropriate for enforcement of all the Fundamental rights conferred by Part III of the Constitution.
- The power of judicial review conferred on Supreme Court and High Court is part of Basic Structure of the Constitution. Hence, no Act of Parliament can exclude or curtail the powers of the Constitutional Courts with regard to the enforcement of fundamental rights”.
- The authors have also claimed that the legislation – The Places of Worship Act, 1991, can be appropriately called an Act of Colourable Legislation. It is based on the maxim that “what cannot be done directly, cannot also be done indirectly”.
Accordingly the authors have challenged Section 3 and 4 of Places of Worship Act, 1991 being unconstitutional, void ab initio and against the Basic Structure of the Constitution of India.
Doctrine of Pith and Substance
- Pith and Substance denotes the true nature of law. The doctrine places emphasis on the fact that it is the real subject matter which is to be challenged and not its incidental effects on another field. Pith denotes the ‘essence of something’ or the ‘true nature’, while substance states ‘the most significant or essential part of something’. Hence, it can be stated that the very doctrine of pith and substance relates to finding out the true nature of a statute.
- It was in the case of State of Bombay v. F. N Balsara that the doctrine was first applied in the case and the same was upheld.
- Seventh Schedule - Constitution of India under Article 246 distributes law making power through Seventh Schedule under UNION LIST, STATE LIST & CONCURRENT LIST. Now, at times the power under various entries of SEVENTH SCHEDULE overlaps and the Judiciary applies the principle of PITH AND SUBSTANCE to demarcate and find out the competence or incompetence of state legislatures to frame law on any subject matter.
Doctrine of Colourable Legislation
- The doctrine is used in the cases to determine questions of competency to enact a law when a legislature oversteps its conferred power and legislate upon something indirectly which it can’t do in a direct manner.
- On the face of the legislation, the subject matter of the law seems to fall within the power of the legislature but the related effect or purpose of the matter actually falls beyond the domain and authority of the legislature.
- So in a manner, the doctrine limits the overstretching or misuse of the granted constitutional power in a covert manner.
- In C. Gajapati Narayan Deo v State of Orissa, Supreme Court held that transgressions may be patent, manifest or direct, but it may also be disguised, covert or indirect, or and it is to this latter class of cases that the expression colourable legislation has been applied in judicial pronouncements.
Evolution of Basic Structure Doctrine
- 1st constitutional amendment act- Right to Property
- Shankari Prasad case - 1951- the power of the Parliament to amend the Constitution under Article 368 also includes the power to amend Fundamental Rights.
- 7th Constitutional Amendment
- Golaknath case 1967- The Supreme Court ruled that the Fundamental Rights are given a ‘transcendental and immutable’ position and hence, the Parliament cannot abridge or take away any of these rights.
- 24th Amendment act 1971- It declared that the Parliament has the power to abridge or take away any of the Fundamental Rights under Article 368.
- Kesavananda Bharti case 1973- It ruled that the constituent power of Parliament under Article 368 does not enable it to alter the ‘basic structure’ of the Constitution. This means that the Parliament cannot abridge or take away a Fundamental Right that forms a part of the ‘basic structure’ of the Constitution.
- 42nd Amendment act1976 - Amended Article 368 and declared that there is no limitation on the constituent power of Parliament and no amendment can be questioned in any court on any ground including that of the contravention of any of the Fundamental Rights.
- Minerva mill case 1980- Judicial Review as the basic structure of the constitution
Minerva Mills case 1980
- “Since the Constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power.
- Indeed, a limited amending power is one of the basic features of the Constitution and, therefore, the limitations on that power cannot be destroyed. In other words, Parliament cannot, under article 368, expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic features.
- The donee of a limited power cannot by the exercise of that power convert the limited power into an unlimited one”.
UPSC Current Affairs: Public Enterprises Selection Board (PESB)| Page – 14
UPSC Syllabus: GS Paper III – Indian Economy
Sub Theme: Public Enterprises Selection Board | UPSC
Context: Mallika Srinivasan, CMD, TAFE Ltd., has been appointed as the chairperson of the Public Enterprises Selection Board (PESB). This is the first time a person from the private sector has been made head of the PESB which is responsible for the appointment of personnel in the posts of chairman, CMD and functional directors in public sector enterprises.
The Public Enterprises Selection Board [P.E.S.B] is a high powered body constituted by Government of India Resolution. The P.E.S.B has been set up with the objective of evolving a sound managerial policy for the Central Public Sector Enterprises and, in particular, to advise Government on appointments to their top management posts.
Functions of the board
- To be responsible for the selection and placement of personnel in the posts of Chairman, Managing Director or Chairman-cum-Managing Director (Level-I), and Functional Director (Level-II) in PSEs as well as in posts at any other level as may be specified by the Government;
- To advise the Government on matters relating to appointments, confirmation or extension of tenure and termination of services of the personnel of the above mentioned levels;
- To advise the Government on the desired structure at the Board level, and, for senior management personnel, for each PSE or group of PSEs;
- to advise the Government on a suitable performance appraisal system for both the PSEs and the managerial personnel in such enterprises;
- To build a data bank containing data relating to the performance of PSEs and its officers;
- To advise the Government on formulation and enforcement of a code of conduct and ethics for managerial personnel in PSEs;
- To advise the Government on evolving suitable training and development programs for management personnel in PSEs.
Constitution of the Board
The P.E.S.B shall consist of a part-time or full-time Chairperson and three full-time Members. The Chairperson and Members shall be persons who have had a long and distinguished career in management of public or private corporations or public administration and have a proven record of achievements, preferably, in the field of personnel, finance, production or marketing. The three full-time Members of P.E.S.B shall be:
- A distinguished serving or former Chief Executive of a Public Sector or Private Sector or Joint Sector Enterprise.
- A distinguished person with experience in selection of Top Management personnel.
- A distinguished serving or former Civil servant with experience in management of PSEs or in areas of finance, industry or economic affairs.
UPSC Current Affairs: BIMSTEC meet skirts Myanmar violence | Pg 09
UPSC Syllabus: GS Paper II – International Relation
Sub Theme: BIMSTEC | UPSC
Context: Government of India expressed commitment about taking the Bay of Bengal community to “new heights”. The statement was made by External Affairs Minister S. Jaishankar at the ministerial meet of the BIMSTEC (Bay of Bengal Initiative for Multi-Sectoral Technical and Economic Cooperation), which was held virtually. The meeting drew participation from all the seven-member States, including Myanmar which is witnessing a large-scale crackdown against anti-military protesters. His Excellency Mr. Dinesh Gunawardena was elected as Chairperson of the 17th BIMSTEC Ministerial Meeting. Sri Lanka plans to hold the fifth BIMSTEC Summit soon, which shall take important decisions to make the organization more focused and also more result-oriented.
Initiatives undertaken under BIMSTEC Umbrella
- BIMSTEC Startup Conclave
- BIMSTEC Military Exercise
- BIMSTEC Ministerial Conclave at the India Mobile Congress 2018
- 2nd BIMSTEC Disaster Management Exercise
- BIMSTEC Seminar on Climate Smart Farming Systems
- Training of BIMSTEC Diplomats at the Foreign Service Institute, etc.
- Organizing Tri-Services Humanitarian Assistance and Disaster Relief - HADR Exercise - code-named 'Tiger Triumph' is aimed at developing inter-operability between the militaries of the two countries in HADR operations.
- BIMSTEC Centre for Weather and Climate, being hosted in India, is fully functional with the state of the art facilities to provide Disaster Early Warnings.
Initiatives under way
- Finalization of the BIMSTEC Master Plan for Transport Connectivity - an important step towards fulfilling the aspirations of the people of our region for better connectivity and integration.
- BIMSTEC Coastal Shipping Agreement and the Motor Vehicles Agreement - Provide legal framework for smooth connectivity in the region by finalizing the
- BIMSTEC Convention on Cooperation in Combating International Terrorism, Transnational Organized Crime and illicit Drug Trafficking - has come into force last month.
- BIMSTEC Convention on Mutual Legal Assistance in Criminal Matters has been finalized for signing at the fifth BIMSTEC Summit. These Conventions will provide a robust legal basis to further strengthen cooperation in the sector of security.
- MoU for Cooperation among Diplomatic Academies and Training Institutions of BIMSTEC Member States and MoA for Establishment of Technology Transfer Facility in Colombo have been finalized for signing at the next Summit.
- The Bay of Bengal Initiative for Multi-Sectoral Technical and Economic Cooperation (BIMSTEC) is a regional organization comprising seven Member States lying in the littoral and adjacent areas of the Bay of Bengal constituting a contiguous regional unity.
- This sub-regional organization came into being on 6 June 1997 through the Bangkok Declaration. It constitutes seven Member States: five deriving from South Asia, including Bangladesh, Bhutan, India, Nepal, Sri Lanka, and two from Southeast Asia, including Myanmar and Thailand.
- Initially, the economic bloc was formed with four Member States with the acronym ‘BIST-EC’ (Bangladesh, India, Sri Lanka and Thailand Economic Cooperation).
- Following the inclusion of Myanmar on 22 December 1997 during a special Ministerial Meeting in Bangkok, the Group was renamed ‘BIMST-EC’ (Bangladesh, India, Myanmar, Sri Lanka and Thailand Economic Cooperation).
- With the admission of Nepal and Bhutan at the 6th Ministerial Meeting (February 2004, Thailand), the name of the grouping was changed to ‘Bay of Bengal Initiative for Multi-Sectoral Technical and Economic Cooperation’ (BIMSTEC).
- The regional group constitutes a bridge between South and South East Asia and represents a reinforcement of relations among these countries. BIMSTEC has also established a platform for intra-regional cooperation between SAARC and ASEAN members.
Questions for Practice
BIMSTEC in recent years have undertaken joint initiatives in which of the following sectors?
- Military Exercise
- Disaster Management
- Climate Smart Framing System
- Combating Terrorism
Select the correct answer using the code given below:
- 2, 3 and 5 only
- 1, 2, 3 and 4 only
- 2, 3, 4 and 5 only
- 1, 2, 3, 4 and 5
Answer – d.