New Indian Express - NOTA option in secret ballot

The NOTA option is an important innovation. It could spur political parties to step up their game.

The Supreme Court has ruled on the introduction of a "none of the above" (NOTA) option at the election booth, accepting the principle that withholding consent is also an active choice that must be registered. This has been a long-sought change, part of election reform recommendations since the 1970s, and India is now one of a handful of countries to offer it. While Rule 49-0 of the Conduct of Election Rules already allows voters to reject all the contenders, this decision had to be reported to the election officer, and was not part of the secret ballot.

This option will not have any destabilising effect on elections, since the petition did not challenge the rule that the highest polling candidate will be declared winner. And so, as in certain other contexts where this option operates, the presence of the "none of the above" button does not invalidate the election. While some worry that this option plays into a sapping anti-politics sentiment, Indian democracy can accommodate this dissent, and will in fact be enriched by it. The recording of it will have a cautionary effect on parties and their candidates, showing them a constituency of voters who care about politics, are invested in its outcomes and could have been mobilised, but remain unsatisfied with them and their rivals. It could be a spur and a goad for parties, a constant reminder of how they derive their legitimacy, and how many people they are leaving out of their pitch.

It will finally provide a relative measure of people not voting because they couldn't be bothered, and those who have a grievance against the political choices they have. While there is much talk of election-day slackers, or of citizens who feel alienated from the political system, India's voter turnout figures have held strong through the decades, unlike in other countries that have experienced a steady falling off. NOTA could also help in other ways — in situations where a person is being intimidated into voting, this button could make sure there are no forced decisions. By encouraging people to show up at the booth even if they don't choose any candidate, it could prevent others casting votes in their name. "None of the above" places the voter at the centre, unlike much electoral reform that focuses on parties and their processes.

TOI - Amendments in Hindu Marriage Act 1955 and Special marriage act 1954

In a major step towards making marriage laws more women-friendly, Rajya Sabha on Monday passed the bill to amend theHindu Marriage Act (1955) and the Special Marriage Act (1954) that provides for "irretrievable breakdown on marriage" as a ground for divorce as well as grants women the right to a share in the property of their husbands. 

The Marriage Laws (Amendment) Bill, 2010, will of course also have to be passed by Lok Sabha before it can become law. Most Rajya Sabha MPs cut across party lines to welcome the "progressive" bill, though some held it should have been made more "gender-neutral", while a few others expressed reservations about its probable misuse against men. 

Replying to the debate, law minister Kapil Sibal said there was an urgent need to "protect women rights more" because the Indian society was still quite patriarchal. "So let's be clear. This historic piece of legislation is a message that MPs are on the side of women in our patriarchal society. Even across the world, women constitute 50% (of the population) but own only 2% of the assets," he said. 

The minister assured MPs that the "irretrievable breakdown on marriage" clause was "gender-neutral" since even men could move the court for it. Both parties have to live apart for at least three years before filing such a divorce petition. "Don't worry, we are taking care of both men and women," he said. 

Dwelling on the amendments, the minister said courts would decide the "extent" of the wife's share in her husband's self-acquired property, both moveable and immoveable, in case of a divorce. While the wife will have no share in inherited property, its value will be taken into account by court while fixing the amount of compensation or alimony to her. "The judge will decide as per the facts and circumstances of each case," he said. 

Earlier, participating in the debate, Najma Heptulla of BJP criticised the UPA government for not bringing in "one law for all women". Holding that the country's "100 million Muslim women" were being ignored by the government, she said, "Have they thought of any reforms for Muslim women?"


FROM IE
Marriage bill treads a tricky path between a liberal approach to divorce and protecting women's rights

A fair balance between individual freedom and responsibility is the crux of any just law on marriage and divorce. The Marriage Laws (Amendment) Bill just passed by the Rajya Sabha updates the marital contract, giving greater agency to both spouses while protecting women, for whom divorce is a more punishing event, and who have so far had little legal recourse.

Under the new bill, either partner can petition for a divorce citing irretrievable breakdown, without having to supply proof of adultery, leprosy, conversion, unsoundness of mind, desertion or other dire circumstances. This change puts Indian law on par with other jurisdictions, starting with New Zealand in 1920, allowing unhappy partners to be released from their bonds and respecting their reasons. After the specified waiting period, a judge can use her discretion to grant divorce even if one of the partners does not move a second application within three years. While a woman can oppose a divorce plea on the grounds of financial hardship, a man cannot. The more substantive change in the bill is the recognition that women are entitled to a share in marital property — a principle acknowledged around the world. Women often invest disproportionately in the household, compared to remunerated work. They stand to lose more, emotionally and financially, when the marriage breaks down, and assets are usually registered in the man's name. India did not have a law on marital property division, leaving the woman financially disadvantaged and burdened with child support. She had even less leverage if she had initiated the divorce. Now, the judge can again use her discretion to ensure a fair share of property or guarantee spousal support. This part of the bill has been seen to be contentious, with many questioning why a woman is entitled to her husband's inherited or inheritable property. Given that its implementation leaves so much to the subjective assessment of a judge, it is crucial that such decisions are just on both men and women.

During the parliamentary discussion of the bill, many MPs questioned the seeming asymmetry of the bill, and asked why the principle of compensation was not gender-neutral. The reason is that social institutions are usually tilted against women, and it is rare for men to have sacrificed their earnings for the sake of the marriage. And so, a gender neutral law in a context of inequality could create situations where a woman's plea is reflexively countered, leading to massive litigation rather than progress. When Lok Sabha takes up the bill, this logic must be more thoroughly articulated, and all views considered.

IE - Judicial commission

In last-minute changes, the UPA government has proposed the inclusion of two "eminent persons" instead of two "jurists" in a six-member judicial appointments commission that will seek to strike a balance and avoid extra weightage to judiciary in the body.
The decision to make the changes was taken by the Union Law Ministry on August 3 in a separate note to the Cabinet Secretariat.
The amended proposal, likely to be taken up in a meeting of the Cabinet on Thursday, says that the six-member committee should include the Chief Justice of India, two Supreme Court judges, Union Law Minister and two eminent persons instead of two jurists as proposed earlier.
Also, the Leader of Opposition will not be a member as suggested in an earlier proposal.
Instead, the two eminent persons will be nominated to the
proposed judicial appointments commission by a collegium
consisting of the Prime Minister, the Leader of Opposition and the Chief Justice of India.
The secretary in the Law Ministry will be the convenor of the judicial appointments commission. The changes will enable non-jurists to become members of the judicial appointments
commission and not restrict the membership to those with
judicial background.
For long, the political class has been of the view that the
collegium system of appointment of judges should be done away with as judges should not make their own appointments.
The collegium system was developed through two judgments of the Supreme Court, one of which interpreted Article 124 of the Constitution in a manner in which consultation process with the judiciary by the President was deemed concurrence.
"Constitution uses consultation but interpreting it as concurrence in the face of clear language to establish primacy of the opinion of the Chief Justice of India is contrary to constitutional scheme. Also, in the constitutional scheme there is no hierarchy among consultees," says the Cabinet note.
According to the note, the judicial appointments commission will recommend appointment of the Chief Justice of India, judges of the Supreme Court as well as chief justices of high courts and other judges.
It will also recommend transfer of the judges and will have to ensure that persons recommended have ability, integrity and standing in the legal profession.
Cabinet approval will be sought for amendments to Articles 124, 217, 222 and 231 of the Constitution, besides inserting Article 124 (A) in the Constitution and introduction of the Judicial Appointments Commission Bill in the ongoing Monsoon