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The Bihar Prohibition and Excise Bill, 2016 was introduced and debated in the Bihar Legislative Assembly today. The Bill creates a framework for the levy of excise duty and imposes a prohibition on alcohol in Bihar. In this context, we examine key provisions and some issues related to the Bill. Prohibition on the manufacture, sale, storage and consumption of alcohol was imposed in Bihar earlier in 2016, by amending the Bihar Excise Act, 1915. The Bill replaces the 1915 Act and the Bihar Prohibition Act, 1938. Key features of the Bill include:
Process to be followed for offences The Bill outlines the following process to be followed in case an offence is committed:
Some issues that need to be considered
The Bill presumes that the family members, owner and occupants of the building or land ought to have known that an illegal act is taking place. In all such cases, the Bill prescribes a punishment of at least 10 years of imprisonment, and a fine of at least one lakh rupees.
These provisions may violate Article 14 and Article 21 of the Indian Constitution. Article 14 of the Constitution provides that no person will be denied equality before law. This protects individuals from any arbitrary actions of the state.[1] It may be argued that imposing criminal liability on (i) family members and (ii) owner or occupants of the building, for the action of another person is arbitrary in nature.
Article 21 of the Constitution states that no person can be deprived of their life and personal liberty, except according to procedure established by law. Courts have interpreted this to mean that any procedure established by law should be fair and reasonable.[2] It needs to be examined whether presuming that (i) family members of an offender, and (ii) owner or occupant of the building knew about the offence, and making them criminally liable, is reasonable.
Note that under the Indian Penal Code, 1860 an imprisonment at least 10 years is attracted in crimes such as use of acid to cause injury, or trafficking of a minor. Other states where a prohibition on alcohol is imposed provide for a lower imprisonment term for such offences. These include Gujarat (at least seven years) and Nagaland (maximum three years).[3]
Note: At the time of publishing this blog, the Bill was being debated in the Legislative Assembly. [1] E.P. Royappa v State of Tamil Nadu, Supreme Court, Writ Petition No. 284 of 1972, November 23, 1973. [2] Maneka Gandhi v Union of India, AIR 1978 SC 597. [3] Gujarat Prohibition Act, 1949, http://www.prohibition-excise.gujarat.gov.in/Upload/06asasas_pne_kaydaao_niyamo_1.pdf.
Mr. Ramnath Kovind completes his tenure as President in July. With the Election Commission of India expected to notify the election dates this week, we look at how India will elect its next President.
As the Head of the State, the President is a key part of Parliament. The President calls the two Houses of Parliament into session on the advice of the Council of Ministers. A Bill passed by the Lok Sabha and Rajya Sabha does not become a law unless assented to by the President. Further, when Parliament is not in session, the President holds the power to sign a law with immediate effect through an Ordinance.
Who elects the President?
The manner of election of the President is provided in Article 55 of the Constitution. Members of Parliament and Members of Legislative Assemblies (MPs and MLAs) including elected representatives from the Union Territories (UTs) of Delhi and Puducherry form the electoral college, which elects the President. At least 50 elected representatives must propose a candidate, who must then be seconded by 50 other electors to run for the President's office. Members of Legislative Councils and the 12 nominated members of Rajya Sabha do not participate in the voting process.
The history behind having proposers and seconders To discourage the practice, candidates had to secure at least 10 proposers and seconders each to contest the elections from the 1974 election onwards. A compulsory security deposit of Rs 2,500 was also introduced. The changes were brought in through an amendment to the Presidential and Vice-Presidential Act, 1952. In 1997, the Act was further amended to increase the security deposit to Rs 15,000 and the minimum number of proposers and seconders to 50 each. |
How are the votes calculated?
The Presidential election uses a special voting to tally the votes. A different voting weightage is assigned to an MP and an MLA. The value of each MLA's vote is determined based on the population of their state and the number of MLAs. For instance, an MLA from UP has a value of 208 while an MLA from Sikkim has 7 (see Table 1). Due to a Constitutional Amendment passed in 2002, the population of the state as per the 1971 census is taken for the calculation.
The value of an MP's vote is the sum of all votes of MLAs across the country divided by the number of elected MPs.
How will the numbers look in 2022?
In the 2017 Presidential elections, electors from 31 states and the UTs of Delhi and Puducherry participated. However, in 2019, with the Jammu and Kashmir (J&K) Reorganization Act, the number of states were reduced to 30. The J&K Assembly was dissolved as per the Act and a new legislature for the UT of J&K is yet to be reconstituted. UTs with legislatures were not originally part of the electoral college for the election of the President. The Constitution was amended in 1992 to specifically include the UTs of Delhi and Puducherry. Note that for MLAs from J&K to participate in future Presidential elections, a similar Constitutional amendment would be required to be passed by Parliament.
Based on the assumption that J&K is not included in the 2022 Presidential election, the total number of votes of MLAs in 2022 elections will have to be adjusted. The 87 Jammu and Kashmir MLAs must be removed from the total number of MLAs of 4,120. Jammu and Kashmir’s contributing vote share of 6,264 must also be reduced from the total vote share of 549,495. Adjusting for these changes, 4,033 MLAs will participate in the 2022 elections and the combined vote share of all MLAs will add up to 543,231.
Table 1: The value of votes of elected MLAs of different states at the 2017 Presidential Election
Name of State |
Number of Assembly seats |
Population (1971 Census) |
Value of vote of each MLA |
Total value of votes for the state (B x D) |
A |
B |
C |
D |
E |
Andhra Pradesh |
175 |
2,78,00,586 |
159 |
27,825 |
Arunachal Pradesh |
60 |
4,67,511 |
8 |
480 |
Assam |
126 |
1,46,25,152 |
116 |
14,616 |
Bihar |
243 |
4,21,26,236 |
173 |
42,039 |
Chhattisgarh |
90 |
1,16,37,494 |
129 |
11,610 |
Goa |
40 |
7,95,120 |
20 |
800 |
Gujarat |
182 |
2,66,97,475 |
147 |
26,754 |
Haryana |
90 |
1,00,36,808 |
112 |
10,080 |
Himachal Pradesh |
68 |
34,60,434 |
51 |
3,468 |
Jammu and Kashmir |
87 |
63,00,000 |
72 |
6,264 |
Jharkhand |
81 |
1,42,27,133 |
176 |
14,256 |
Karnataka |
224 |
2,92,99,014 |
131 |
29,344 |
Kerala |
140 |
2,13,47,375 |
152 |
21,280 |
Madhya Pradesh |
230 |
3,00,16,625 |
131 |
30,130 |
Maharashtra |
288 |
5,04,12,235 |
175 |
50,400 |
Manipur |
60 |
10,72,753 |
18 |
1,080 |
Meghalaya |
60 |
10,11,699 |
17 |
1,020 |
Mizoram |
40 |
3,32,390 |
8 |
320 |
Nagaland |
60 |
5,16,449 |
9 |
540 |
Odisha |
147 |
2,19,44,615 |
149 |
21,903 |
Punjab |
117 |
1,35,51,060 |
116 |
13,572 |
Rajasthan |
200 |
2,57,65,806 |
129 |
25,800 |
Sikkim |
32 |
2,09,843 |
7 |
224 |
Tamil Nadu |
234 |
4,11,99,168 |
176 |
41,184 |
Telangana |
119 |
1,57,02,122 |
132 |
15,708 |
Tripura |
60 |
15,56,342 |
26 |
1,560 |
Uttarakhand |
70 |
44,91,239 |
64 |
4,480 |
Uttar Pradesh |
403 |
8,38,49,905 |
208 |
83,824 |
West Bengal |
294 |
4,43,12,011 |
151 |
44,394 |
NCT of Delhi |
70 |
40,65,698 |
58 |
4,060 |
Puducherry |
30 |
4,71,707 |
16 |
480 |
Total |
4,120 |
54,93,02,005 |
|
5,49,495 |
Source: Election Commission of India (2017); PRS.
The value of an MP’s vote correspondingly will change from 708 in 2017 to 700 in 2022.
Value of one MP's vote = Total value of all votes of MLAs = 543231 = 700
Total number of elected MPs 776
Note that the value of an MP’s vote is rounded off to the closest whole number. This brings the combined value of the votes of all MPs to 543,200 (700 x 776).
What is the number of votes required to win?
The voting for the Presidential elections is done through the system of single transferable vote. In this system, electors rank the candidates in the order of their preference. The winning candidate must secure more than half of the total value of valid votes to win the election. This is known as the quota.
Assuming that each elector casts his vote and that each vote is valid:
Quota = Total value of MP’s votes + Total value of MLA’s votes + 1
2
= 543200 + 543231 +1 = 1086431 +1 = 543,216
2 2
The anti-defection law which disallows MPs from crossing the party line does not apply to the Presidential election. This means that the MPs and MLAs can keep their ballot secret.
The counting of votes takes place in rounds. In Round 1, only the first preference marked on each ballot is counted. If any of the candidates secures the quota at this stage, he or she is declared the winner. If no candidate secures the quota in the first round, then another round of counting takes place. In this round, the votes cast to the candidate who secures the least number of votes in Round 1 are transferred. This means that these votes are now added to the second preference candidate marked on each ballot. This process is repeated till only one candidate remains. Note that it is not compulsory for an elector to mark his preference for all candidates. If no second preference is marked, then the ballots are treated as exhausted ballots in Round 2 and are not counted further.
The fifth Presidential election which elected Mr. VV Giri is the only instance when a candidate did not secure the quota in the first round. The second preference votes were then evaluated and Mr. Giri secured 4,20,077 of the 8,36,337 votes and was declared the President.
The only President of India to win unopposed |