Author: CD Staff

Context

• Recently, the Supreme court asked the Centre to produce in 24 hours the file related to the appointment of former bureaucrat Arun Goel as an EC so as to demonstrate how ECs are chosen.
• In reply to it, Solicitor general (SG) Tushar Mehta urged the court not to traverse through a path that may disturb the constitutional scheme of separation of power.
• The incident highlights the tussle between the two branches of the state- the executive and judiciary. This edition of the burning issue will analyse this issue in length.

Previous incidences of the tussle

• Fundamental Rights vs DPSP: The tussle between the judiciary and executive began when the judiciary defended the fundamental Rights in the Golak Nath Case,1967 against the supremacy of legislature (Parliament) established by the executive under the leadership of Mrs. Indira Gandhi, the Prime Minister of India.
• Shield of “Basic Structure”: Mrs. Indira Gandhi in her next move got the three arbitrary constitutional Amendment Acts in 1971. The judiciary in response established the “Doctrine of Basic Structure‟ of the constitution through the Kesavanda Bharti case,1973.
• Struck down of NJAC– The NJAC judgment was a crucial turning point leading to the present confrontation. No doubt, there always has been a certain amount of creative tension but NJAC judgment became the tipping point. 
• Struck down of tribunal ordinance: Supreme Court struck down the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance of 2021
• Displeasure over Delays in clearing recommendations of collegium: The Supreme Court expressed anguish over the delay by the Centre in clearing the names recommended by the Collegium for appointment as judges in the higher judiciary, saying it “effectively frustrates” the method of appointment.

What does the constitution say about it?

• Division of powers: The constitution of India divided the power and authority among three organs of government –executive, legislature and judiciary.
• Article 50: The article puts an obligation on the State to separate the judiciary from the executive. But, since this falls under the Directive Principles of State Policy, it is not enforceable.
• Article 123: The President, being the executive head of the country, is empowered to exercise legislative powers (Promulgate ordinances) in certain conditions.
• Articles 121: No discussions shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the Judge as hereinafter provided.
• Article 211: This provides that the legislatures cannot discuss the conduct of a judge of the Supreme Court or High Court. They can do so only in case of impeachment.
• Article 361: The President and Governors enjoy immunity from court proceedings.
• The doctrine of separation of powers: it is a part of the basic structure of the Constitution, although not specifically mentioned. It calls for the division of powers of the state among three organs to avoid the overpowering of any one organ.

Reasons for the tussle

• Wide range of powers: The power of the Indian Supreme Court is comparable to those of its United States counterpart, including broad original and appellate jurisdiction and the right to pass on the constitutionality of laws passed by the Parliament. In the exercise of its power, however, the court has been at the center of major two controversies concerning the constitutional and political order in India.
• Court’s FR vs State’s DPSP: The efforts by the court to give priority to the Fundamental Rights provisions in the constitution in a case where they have come into conflict with the Directive Principles, especially the broad ideological and policy goals of the Indian state and to which the executive and legislature have often given priority
• Power of judicial review: The court’s power of judicial review of legislation passed by Parliament, which has on numerous occasions led to stalemates that point to a constitutional contradiction between the principle of Parliamentary sovereignty and that of judicial review.
• The Collegium system: The collegium system of appointment of judges is popularly referred to as judges selecting judges. The collegium system is the Supreme Court’s invention. There is no mention of the collegium system either in the original constitution of India or successive amendments. From 1950 to 1973, the practice has been to appoint the senior most judge of the Supreme Court as Chief Justice of India. But the appointment and transfer of judges in the Supreme Court and High Courts became a matter of controversy between the judiciary and executive in 1973.
• Collegium System vs National Judicial Appointment Commission: The judiciary withheld the NJAC as unconstitutional and void. The Supreme Court objects to the inclusion of politicians in the NJAC particularly the two eminent members of the society. These eminent persons are to be nominated for a three-year term by a Selection Committee consisting of the Chief Justice, the Prime Minister and the leader of the opposition in the Lok Sabha, and are not eligible for re-nomination. The Court blamed if politicians are involved, what about judicial independence? Those against the NJAC argue that it will give the executive undue influence over the selection of judges.
• The decline of Parliament: Due to the failure of the executive and legislature to provide a solution to problems of the citizenry, citizens move to court for remedies. In the process of providing justice to the citizens, the judiciary sometimes crosses its boundary which leads to its tussle with the executive.

Consequences of the tussle

• Creates an Environment of distrust: the tussle creates an environment of distrust between the branches, leading to reduced cooperation and stagnancy in the reform process. some blame games and grandstanding are thrown in to either hide their limitations or to proclaim their superiority.
• The struggle of power: Both sides seem to be engaged in a game of tug of war where each wants something important, which is the power of judicial appointment to the higher judiciary. But what is surprising and difficult to understand is that both executive and judiciary believe in making appointments to the higher judiciary on merit which can contribute to the accountability and efficiency of the judiciary and yet there is no consensus between the two!
• Ignorance of separation of powers: Many of them miss the principle of separation of functions enshrined in the Constitution, a basic tenet of the Constitution for maintaining harmonious inter-institutional balance, as well as the differences in their respective ecosystems.
• A mismatch between expectations and realization: Several laws such as contract laws, environmental laws and even corporate laws are not fully in tune with the new aspirations. Interpretations of economic laws by the judiciary remain in a static mode. Even when they come late, they are at times not in tune with the direction the executive would like it to be. So, there is disenchantment with the judiciary. While some may be genuine, many of them are the result of the mismatch between expectations and realization.

Way forward

• Strike a balance, especially by the executive: Inter-institutional balancing, even with strong constitutional provisions, is a difficult task. While the three wings of the State (Legislature, Executive and Judiciary) have to work for maintaining that delicate balance, it is primarily the responsibility of the executive to strive extra hard for the same. Because the executive is the most visible organ of the State as it is the government for all practical purposes.
• Improving overall governance system: There is also a lot of disenchantment with the executive on multiple aspects of day-to-day civic life. Further, it is well-known that the executive is the largest litigant, clogging the judicial system. These are the result of suboptimal governance from the side of the executive.
• Human resource management and ensuring sufficient financial resources and operational freedom for all agencies are all functions of the executive branch, the government.
• Respecting the boundaries of each: To break this sub-optimal governance trap and to enhance the performance of all wings and agencies, those in responsible positions need to take a deep breath, think aloud and come out with appropriate solutions; understanding and respecting the boundaries of each of the three wings of the State. Institutional solutions on weighty issues like inter-institutional balancing and efficiency enhancement require a balanced, institutionalized approach.

Conclusion

• The “tussle” between the executive/legislature and the judiciary is not a real one. On the other hand, a judiciary and executive on the same page is disastrous for constitutional government and human rights.
• The problem is inbuilt into the institution. The executive has to ensure the judiciary that they have no intention of curbing their independence. Also, the judiciary should not be too touchy that every small little thing is a challenge to their independence. The tension between them is due to this confrontation.

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Context

• The draft Digital Personal Data Protection Bill 2022 has now been released by the Ministry of Electronics and IT (MeitY), and the government is now asking for public comments and consultations on the bill.
• In this context, this edition of the burning issue will discuss the evolution of privacy bills in India and analyse the current proposed draft data bill.

Why do we need data protection?

• Increasing internet use: India currently has over 750 million Internet users, with the number only expected to increase in the future.
• Data breaches: At the same time, India has among the highest data breaches in the world. Without a data protection law in place, the data of millions of Indians continue to be at risk of being exploited, sold, and misused without their consent.
• Individual privacy: Data monetization may happen at cost of individual privacy. The most sought-after datasets are those that contain sensitive personal data of individuals, ex. medical history, and financial data.
• Lack of writ proceedings against corporate action: Unlike state action, corporate action or misconduct is not subject to writ proceedings in India. This is because fundamental rights are, by and large, not enforceable against private non-state entities. This leaves individuals with limited remedies against private actors.

Background: Evolution of Demand for the data protection

• The journey towards data protection legislation began in 2011 when the department of Personnel and Training initiated discussions on the Right to Privacy Bill, 2011.
• The major fillip to the data protection case was given by the K. Puttuswamy judgment, 2017 where the supreme court held the “Right to privacy” as a fundamental right under Article 21- right to life and personal liberty.
• After the Puttaswamy judgment, the government-appointed B.N Srikrishna committee the drafting of a law for data protection and privacy. This led to the Justice B.N. Srikrishna committee report which later on led to the Personal Data Protection Bill of 2019.

The previous draft Personal Data Protection Bill, 2019

The PDP Bill was introduced in Lok Sabha by the Minister of Electronics and Information Technology in 2019. The Bill seeks to provide for the protection of the personal data of individuals and establishes a Data Protection Authority for the same. Here are the key features:

• Applicability: The Bill governs the processing of personal data by the government, companies incorporated in India and foreign companies dealing with the personaldata of individuals in India.
• Categorization of data– Personal data is data that pertains to characteristics, traits or attributes of identity, which can be used to identify an individual. The Bill categorizes certain personal data as sensitive personal data. This includes financial data, biometric data, caste, religious or political beliefs, or any other category of data specified by the government, in consultation with the Authority and the concerned sectoral regulator.
• Data fiduciary and his obligations– A data fiduciary is an entity or individual who decides the means and purpose of processing personal data. Such processing will be subject to a certain purpose, collection and storage limitations. For instance, personal data can be processed only for specific, clear and lawful purposes.
• Rights of the individual- The Bill sets out certain rights of the individual (or data principal).  These include the right to Obtain confirmation from the fiduciary on whether their data has been processed, Seek correction of inaccurate, incomplete, or out-of-date personal data, Have personal data transferred to any other data fiduciary in certain circumstances and Restrict continuing disclosure of their data by a fiduciary, if it is no longer necessary or consent is withdrawn.
• Grounds for processing personal data- The Bill allows the processing of data by fiduciaries only if consent is provided by the individual. However, in certain circumstances, personal data can be processed without consent.
• Data Protection Authority– The Bill sets up a Data Protection Authority which may take steps to protect the interests of individuals, prevent misuse of personal data, and ensure compliance with the Bill. It will consist of a chairperson and six members, with at least 10 years of expertise in the field of data protection and information technology.
• Transfer of data outside India– Sensitive personal data may be transferred outside India for processing if explicitly consented to by the individual, and subject to certain additional conditions. However, such sensitive personal data should continue to be stored in India. Certain personal data notified as critical personal data by the government can only be processed in India.
• Exemptions to a government agency– The central government can exempt any of its agencies from the provisions of the Act: In the interest of the security of the state, public order, sovereignty and integrity of India and friendly relations with foreign states. 

What were the issues with the 2019 Bill?

• Power to exemption with the state: The Bill’s expansive exemptions allowed the state to exempt the entire application of the law simply as if it was “expedient” to do so in the interest of national security or public order.
• Powers without accountability: The PDP Bill, 2019 as well as the JPC’s version established a strong regulator (the Data Protection Authority) with a lot of power, but very little independence or accountability.
• Data localisation: The Bill imposed a strong data localisation mandate, requiring companies to store all sensitive personal data and critical personal data (which was not defined) in India.
• Subsuming the personal and non-personal data: The JPC recommended subsuming the regulation of personal data and non-personal data within a single legislation, even though it undermined the Puttaswamy mandate to ensure the protection of personal data.

Latest Draft Digital Data Protection Bill:

The PDP Bill, 2019, prepared by MeitY, was referred to a Joint Parliamentary Committee (JPC) for review. JPC tabled the report of the JPC on the PDP Bill, 2019, as well as the draft Data Protection Bill 2021, in the parliament.

On August 3 this year, MeitY withdrew the 2021 Bill, stating that a more “comprehensive legal framework” will be presented soon. This led to the current DPDP Bill, 2022.

According to an explanatory note for the bill, it is based on seven principles:

• Lawful use: The first is that “usage of personal data by organizations must be done in a manner that is lawful, fair to the individuals concerned and transparent to individuals.”
• Purposeful dissemination: The second principle states that personal data must only be used for the purposes for which it was collected.
• Data minimization: Bare minimum and only necessary data should be collected to fulfill a purpose.
• Data accuracy: At the point of collection. There should not be any duplication.
• Duration of storage: The fifth principle talks of how personal data that is collected cannot be “stored perpetually by default,” and storage should be limited to a fixed duration.
• Authorized collection and processing: There should be reasonable safeguards to ensure there is “no unauthorized collection or processing of personal data.”
• Accountability of users: The person who decides the purpose and means of the processing of personal data should be accountable for such processing.

Key features of the bill

Data Principal and Data Fiduciary

• The bill uses the term “Data Principal” to denote the individual whose data is being collected.
• The term “Data Fiduciary” the entity (can be an individual, company, firm, state etc.), which decides the “purpose and means of the processing of an individual’s personal data.”
• The law also makes a recognition that in the case of children –defined as all users under the age of 18— their parents or lawful guardians will be considered their ‘Data Principals.’

Defining personal data and its processing

• Under the law, personal data is “any data by which or in relation to which an individual can be identified.”
• Processing means “the entire cycle of operations that can be carried out in respect of personal data.”
• So right from collection to storage of data would come under processing of data as per the bill.

Individual’s informed consent

• The bill also makes it clear that individual needs to give consent before their data is processed.
• Every individual should know what items of personal data a Data Fiduciary wants to collect and the purpose of such collection and further processing.
• Individuals also have the right to withdraw consent from a Data Fiduciary.
• The bill also gives consumers the right to file a complaint against a ‘Data Fiduciary’ with the Data Protection Board in case they do not get a satisfactory response from the company.

Language of information

• The bill also ensures that individuals should be able to “access basic information” in languages specified in the eighth schedule of the Indian Constitution.
• Further, the notice of data collection needs to be in clear and easy-to-understand language.

Significant Data Fiduciaries

• The bill also talks of ‘Significant Data Fiduciaries, who deal with a high volume of personal data.
• The Central government will define who is designated under this category based on a number of factors ranging from the volume of personal data processed to the risk of harm to the potential impact on the sovereignty and integrity of India.

Data protection officer & Data auditor

• Such entities will have to appoint a ‘Data protection officer’ who will represent them.
• They will be the point of contact for grievance redressal.
• They will also have to appoint an independent Data auditor who shall evaluate their compliance with the act.

Right to erase data, right to nominate

• Data principals will have the right to demand the erasure and correction of data collected by the data fiduciary.
• They will also have the right to nominate an individual who will exercise these rights in the event of death or incapacity of the data principal.

Cross-border data transfer

• The bill also allows for cross-border storage and transfer of data to “certain notified countries and territories.”
• However, an assessment of relevant factors by the Central Government would precede such a notification.

Financial penalties

• The draft also proposes to impose significant penalties on businesses that undergo data breaches or fail to notify users when breaches happen.
• Entities that fail to take “reasonable security safeguards” to prevent personal data breaches will be fined as high as Rs 250 crore.
• As per the draft, the Data Protection Board — a new regulatory body to be set up by the government — can impose a penalty of up to ₹500 crore if non-compliance by a person is found to be significant.

What distinguishes this bill from its earlier versions?

• Gender neutrality:  Significantly, and for the first time in the country’s legislative history, the terms ‘her’ and ‘she’ have been used irrespective of an individual’s gender. This, as per the draft, is in line with the government’s philosophy of empowering women.
• Imbibes best global practices: To prepare it, best global practices were considered, including a review of data protection legislations of Australia, the European Union (EU), Singapore, and a prospective one of the USA.
• Comprehensiveness: The draft has outlined six ‘Chapters’ and a total of twenty-five points. The ‘Chapters’ are: ‘Preliminary,’ ‘Obligations of Data Fiduciary,’ ‘Rights and Duties of Data Principal,’ ‘Special Provisions,’ ‘Compliance Framework,’ and ‘Miscellaneous.’
• Special emphasis for child protection: If personal data is likely to cause harm to a child, its processing will not be allowed.

Positive aspects of the bill

• Widening the scope of data: Narrowing the scope of the data protection regime to personal data protection is a welcome move, as it resonates with the concerns of various stakeholders.
• Harnessing economic potential: Now non-personal data could be used to unlock social and economic value to benefit citizens, businesses, and communities in India with appropriate safeguards in place.
• Doing away with an aggressive push for Data localisation:  Relaxing data localisation provisions to notify countries to which data can flow, could aid India in unlocking the comparative advantage of accessing innovative technological solutions from across the globe, which in turn helps domestic companies.
• Free flow of data: In addition, the free flow of data will help startups access cost-effective technology and storage solutions, as our research shows.
• Allowing data transfers: This will also ensure that India is not isolated from the global value chain, helping businesses stay resilient in production and supply chain management and fostering overseas collaboration.
• Introduction of the concept of ‘Deemed Consent’: It enables the processing of the Personal Data of an individual without his/her explicit consent, where it is “reasonably expected that the Data owner would provide such Personal Data”.

Some criticisms of the bill

• Wordplay: There had been the use of open-ended language such as “as necessary” or “as may be prescribed”.
• Govt monopoly: The Bill did not seem to work towards protecting people, but ensured that the government retains all power without any checks or balances.
• Exemption provisions: The government has been given the power to exempt not only government agencies but any entity that is collecting user data, from having to comply with the provisions of this bill when it is signed into law.
• No protection against data breach: The Executive in India has a track record of exploiting to expand its powers. There is no right for compensation to individuals in case of a data breach. They have no right to data portability.
• Appointments to data protection board- The draft law leaves the appointment of the chairperson and members of the Data Protection Board entirely to the discretion of the central government. “While the Data Protection Authority was earlier envisaged to be a statutory authority (under the 2019 Bill), the Data Protection Board is now a central government set-up board.
• Narrow Focus: It is focused on personal data and excludes non-personal data, which was a demand by the industry and civil society alike. It eliminates the categorisation of personal data into sensitive and critical.

Global comparison: What other Nations data laws specify

An estimated 137 out of 194 countries have put in place legislation to secure the protection of data and privacy, with Africa and Asia showing 61% (33 countries out of 54) and 57% adoption respectively, according to data from UNCTAD intergovernmental organisation within the United Nations Secretariat. 

EU MODEL

• The GDPR focuses on a comprehensive data protection law for the processing of personal data. It has been criticised for being excessively stringent and imposing many obligations on organisations processing data, but it is the template for most of the legislation drafted around the world.
• There are certain exemptions such as national security, defence, public security, etc, but they are clearly defined and seen as exclusions on the periphery.

US MODEL

• Privacy protection is largely defined as “liberty protection” focused on the protection of the individual’s personal space from the government. It is viewed as being somewhat narrow in focus because it enables the collection of personal information as long as the individual is informed of such collection and use.
• The US template has been viewed as inadequate in key respects of regulation. There is no comprehensive set of privacy rights or principles in the US that, like the EU’s GDPR, addresses the use, collection, and disclosure of data. Instead, there is limited sector-specific regulation.
• The approach towards data protection is different for the public and private sectors. The activities and powers of the government vis-a-vis personal information are, however, sufficiently well-defined and addressed by broad legislation such as the Privacy Act, the Electronic Communications Privacy Act, etc. For the private sector, there are some sector-specific norms.

CHINA MODEL

• New Chinese laws on data privacy and security issued over the last 12 months include the Personal Information Protection Law (PIPL), which came into effect in November 2021.
• It gives Chinese data principals new rights as it seeks to prevent the misuse of personal data. The Data Security Law (DSL), which came into force in September 2021, requires business data to be categorized by levels of importance and puts new restrictions on cross-border transfers. The law includes stringent penalties, with fines as high as RMB 50 million, or up to 5% of a company’s turnover in the previous financial year. 

Way forward

• Compensation for breach: A provision should be put in place in the law to compensate individuals in the event of a data breach as available in the EU’s GDPR.
• Giving statutory status: to the proposed Data Protection Board for better functioning of the board and reduce executive interference. Appointments to the board should be done through a committee on similar lines to that of NHRC and other bodies.
• More comprehensive: More provisions should be incorporated in the draft legislation rather than leaving it to the Executive to frame provisions.
• Respecting privacy: Rights such as data portability and the right to opt-out of data collection must be included. The right to privacy must be respected which, critics argue, seems to be lacking in this case.

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Context

• The 27th Conference of Parties (COP-27) to the UN Framework Convention on Climate Change concluded on November 20 and the outcomes of the conference seem to be a mixed bag of achievements and failures.
• In this context, this edition of The Burning Issue will expand on the outcomes of COP-27 and India’s steps and stand taken during the conference and finally a way forward.

What is COP?

• The word ‘COP’ is an acronym for ‘Conference of the Parties. The ‘parties’ are the governments around the world that have signed the UN Framework Convention on Climate Change (UNFCCC), a treaty agreed upon in 1994.
• Every year, the COP is hosted by a different nation and the first such COP meeting – ‘COP1’ – took place in Germany in 1995. The conferences are attended by world leaders, negotiators, and ministers, and also by representatives from civil society, business, international organisations, and the media.
• The latest COP-27 edition convened in Sharm el-Sheikh, Egypt with the theme  “Together for Implementation” and to renew and extend the agreements reached in the historic Paris Agreement.  

Major Positive Outcomes of COP27

• Loss and damage Fund: Developing countries have been seeking financial assistance for loss and damage – money needed to rescue and rebuild the physical and social infrastructure of countries devastated by extreme weather – for nearly three decades. Finally achieving agreement on a fund is a major milestone. Now comes the difficult part – the fund must be set up, and filled with cash. There is no agreement yet on how finance should be provided and where it should come from.

• World Bank reform: A growing number of developed and developing countries are calling for urgent changes to the World Bank and other publicly funded finance institutions, which they say have failed to provide the funding needed to help poor countries cut their greenhouse gas emissions and adapt to the impacts of the climate crisis. Reform of this kind was widely discussed at Cop27 which could involve a recapitalisation of the development banks to allow them to provide far more assistance to the developing world.
• Adaptation commitment reaffirmed: Building flood defences, preserving wetlands, restoring mangrove swamps and regrowing forests – these measures, and more, can help countries to become more resilient to the impacts of climate breakdown. But poor countries often struggle to gain funding for these efforts. Of the $100bn a year rich countries promised they would receive from 2020 – a promise still not fulfilled – only about $20bn goes to adaptation. In Glasgow, countries agreed to double that proportion, but at Cop27 some sought to remove that commitment. After some struggle, it was reaffirmed.
• First High-Level Expert Group Report: The highlights of the meeting included the launch of the first report of the High-Level Expert Group on the Net-Zero Emissions Commitments of Non-State Entities. The report slammed ‘greenwashing’ – misleading the public to believe that a company or entity is doing more to protect the environment than it is – and weak net-zero pledges and provided a roadmap to bring integrity to net-zero commitments by industry, financial institutions, cities and regions and to support a global, equitable transition to a sustainable future.

• Launch of Executive Early Warnings for All initiative: Also during the Conference, the UN announced the Executive Action Plan for the Early Warnings for All initiative, which calls for initial new targeted investments of $ 3.1 billion between 2023 and 2027, equivalent to a cost of just 50 cents per person per year.
• Launch Master plans to accelerate decarbonization: Another highlight of the conference was a so-called master plan to accelerate the decarbonization of five major sectors – power, road transport, steel, hydrogen, and agriculture – presented by the COP27 Egyptian Presidency.
• The FAST initiative: The Egyptian leadership also announced the launch of the Food and Agriculture for Sustainable Transformation initiative or FAST, to improve the quantity and quality of climate finance contributions to transform agriculture and food systems by 2030.
• Tipping points and Health: Since Cop26, the IPCC has published the key parts of its latest vast assessment of climate science, warning of catastrophic impacts that can only be averted by sharp and urgent cuts in greenhouse gas emissions. A reference to the key finding of “tipping points” was put in. These include the heating of the Amazon, which could turn the rainforest into a savannah, transforming it from a carbon sink to a carbon source, and the melting of permafrost that releases the powerful greenhouse gas methane. Also inserted was a reference to “the right to a clean healthy and sustainable environment”

Where did COP 27 Lack?

• Lack of support for the 1.5C target: COP27 is widely condemned for failing to offer any strong language in support of 1.5C, the critical climate threshold for humanity. While realistic hope of reaching the target is all but exhausted, striving to get as close to it as possible remains imperative.
• No structure defined: The loss and damage fund has been established but the funding source and scale of this financial facility and its operating procedures have been left to a transitional committee which will present its report at COP-28 next year.
• Indirect Gas promotion? : The final text of Cop27 contained a provision to boost “low-emissions energy”. That could mean many things, from wind and solar farms to nuclear reactors, and coal-fired power stations fitted with carbon capture and storage. It could also be interpreted to mean gas, which has lower emissions than coal but is still a major fossil fuel. Many countries at Cop27, particularly those from Africa with large reserves to exploit, came to Sharm el-Sheikh hoping to strike lucrative gas deals.
• A baseline of emission reduction not touched: There were many agreements in this COP 27, but the baseline of emission reduction fixed in Glasgow could hardly be touched. It discussed “low emission” energy sources with renewables as future energy sources. It is feared that the development of new fossil fuel technologies may start under the guise of an undefined term like this low emission.
• Only Coal ‘phase down’: It is disappointing that COP27 did not build on the decisions of COP26. Failing this, a strong message on the phaseout of fossil fuels could not be delivered. COP 26 called on the parties, inter alia, to move towards low energy systems through an unabated phasedown of coal. By failing to agree to phase-out fossil fuels at COP27, leaders have failed to strengthen the signal that the fossil fuel era is coming to an end and are keeping us on course to climate catastrophe. The world cannot afford to reduce coal in the first phase and then turn to oil and gas. This year’s COP didn’t show much emphasis on moving away from fossil fuels, and that’s disappointing.

India’s participation and stand

India’s announcements at the 26th and 27th Conference Of Parties (COP) are now the pillars of its climate leadership.

• Announcement of a long-term strategy (LTS) for low carbon development: If COP26 last year was a watershed moment because the Prime Minister announced the country’s plan to go net-zero by 2070, this year’s COP27 in Egypt will be remembered for the country’s path-breaking announcement of a long-term strategy (LTS) for low carbon development. With this, India joins the coveted list of 56 countries that have submitted their LTS documents to the United Nations Framework Convention on Climate Change (UNFCCC).
• Addition of Carbon Dioxide in its LTS: There is a lot of scepticism about carbon dioxide removal (CDR), but India’s addition of CDR in its LTS shows we are open to new technology and will pilot these for climate change. The country has a strong forest policy and will continue to protect its forest and expand tree cover to act as a carbon sink.
• India hails Loss and damage adoption: India has welcomed the adoption of the agenda item ‘Loss and Damage’ at COP27. India also expected action from rich countries in terms of climate finance, technology transfer and strengthening the capacity of poor and developing countries to combat climate change.
• Sought clarity on the definition of climate finance: The 27th edition of the Conference of Parties (COP) to UNFCCC will also seek clarity on the definition of climate finance. The absence of a definition of climate finance allows developed countries to greenwash their finances and pass off loans as climate-related aid. India is very clear that the world needs a multilaterally agreed definition of climate finance.
• India’s Long-term strategy (LTS) for Low Carbon Development: The key takeaways from this flagship strategy that will guide India’s actions in the coming five decades.
• Prioritised six strategic sectors: electricity, transport, urban, industry, carbon dioxide removal and forests. Of these, electricity and industry sectors together account for over three-fourths of India’s CO2 emissions, while rapid changes are happening in the transport and urban systems.
• Second, finance and investments. India has identified finance as a key enabler for its LTS vision. According to a Council on Energy, Environment and Water assessment, India will need $10 trillion to achieve the 2070 net-zero target. The LTS has moved beyond this high-level number and done a comprehensive assessment of the finance issue.
• Third, changes to LiFE: LiFE is India’s call for citizens, communities, industry leaders, and policymakers of the world to adopt a lifestyle for the environment. The LTS nudges people to make simple yet effective sustainable choices, industries and markets to scale these, and government policies to support them. LiFE elevates the importance of individual contribution to the larger climate goal, giving it as much importance as industry and policy-level actions, an aspect largely missing from the climate discourse till now.
• Fourth, invest in research and innovation. India’s LTS notes the relevance of research and innovation and identifies multiple technologies in the energy and industry sectors that need to be explored and scaled up. While the emphasis on innovation is great, it only focuses on technology-related innovations. Innovations in business models are equally important to push low-carbon technologies.
• Fifth, adaptation, resilience and international cooperation. The LTS emphasises the need for strengthening basic infrastructure like irrigation systems and disaster-resilient buildings, institutional infrastructure for better disaster response, and raising incomes to bolster the capabilities of individuals and communities to adapt to the long-term impacts of climate change. This needs international cooperation, and multilateral initiatives and platforms.

Some lacking in the strategy

• Non-inclusion of Carbon pricing mechanism: A crucial element missing in India’s long-term strategy. It could have included carbon pricing through the emission-trading scheme as a key instrument. The Centre has already announced the creation of a domestic carbon market and the lok sabha has passed it. This is going to be an important element of India’s strategy, but the LTS is quiet about it.
• Lack of mechanism to assess progress: India’s strategy should present a mechanism to assess progress towards its intermediate goals and course corrections if necessary.

Way forward

We know that drastic emissions cuts are now needed to keep up with the Paris Agreement goals and keep the 1.5°C temperature limit within reach. This means we urgently need a commitment to:

• No new fossil fuel investments;
• Concrete plans to reduce global production and consumption of coal, oil, and gas, and
• Decisions to end government support for all of these fossil fuels.”
• For India, The next iterations of the LTC document should add more actionable information by proposing the prioritisation of sectoral actions based on modelling studies, assessing implications for economic growth and jobs, and the feasibility of various sectoral actions.
• It will help government policies and private markets to move in the desired direction and make the LTS a detailed road map building on the guidelines presented in Egypt.

Conclusion

• COP 27 is an important milestone for achieving concrete progress and moving the needle on the climate agenda. António Guterres, United Nations Secretary-General, set the tone of the Conference, stating, “We are on a highway to climate hell with our foot on the accelerator.”
• There are also major opportunities for increasing energy security through enhancing energy efficiency. This too will contribute to addressing global climate change.
• India did well to preserve its equities at COP27 and in supporting the constituency of developing countries. It is well placed to use its forthcoming chairmanship of the G20 and the Shanghai Cooperation Organisation to take the lead in tackling climate change through its example.

Context

• Defence-Expo 2022 held in Gandhinagar, Gujarat in October drew attention to a major policy initiative, the need for India to acquire the appropriate degree of “Atma-nirbharata” (self-reliance) in the defence sector.
• In this context, this edition of burning issue is will analyse the issues which ail the Indian defence industry, its present status and what all steps are needed to achieve “Atma-nirbharta” in the Defense sector.

About the Indian defence industry

• India has the third largest armed forces in the world.
• India has one of the largest defence industrial complexes in the developing world. Currently, it consists of 39 ordnance factories, 9 defence public sector undertakings under the administrative control of the Ministry of Defence (MoD); and 150-odd companies in the private sector.
• In addition, there are 50-odd dedicated research laboratories and establishments under the umbrella of the Defence Research and Development Organisation (DRDO), the premier research and development (R&D) wing of MoD.
• Together, these entities, which employ over 200,000 people, produced arms and other stuff worth over Rs. 46,428 crore ($7.6 billion) in 2014-15.
• It is the world’s fifth-largest spender on defence. India’s annual defence budget for Financial Year (FY) 2018-19 was about Rs 2,95,511 crore (at the BE stage). It spends approximately 35 per cent of its defence budget on capital acquisition.
• India is one of the few countries to have designed and produced a fourth-plus generation fighter aircraft, nuclear submarine, main battle tank, and intercontinental ballistic missile with a range of more than 5000 km.
• However, despite all these, the Indian defence sector faces several challenges

Why self-reliance in defence is necessary?

• Reducing import dependence: India was the world’s second-largest arms importer from 2014-18, ceding the long-held tag as the largest importer to Saudi Arabia, which accounted for 12% of the total imports during the period, says 2019 SIPRI report. Such higher import dependency leads to an increase in the fiscal deficit.
• Security Imperative: Indigenization in defence is critical to national security also. It keeps intact the technological expertise and encourages spin-off technologies and innovation that often stem from it. India is surrounded by porous borders and hostile neighbours who need to be self-sufficient and self-reliant in defence production.
• Economic boost: Indigenization in defence can help create a large industry which also includes small manufacturers. Example: the USA has a strong defence industry with companies like Lockheed martin contributing to economic growth as well.
• Employment generation: Defence manufacturing will lead to the generation of satellite industries that in turn will pave the way for a generation of employment opportunities. As per government estimates, a reduction of 20-25% in defence-related imports could directly create an additional 100,000 to 120,000 highly skilled jobs in India.
• Counter China: If India doesn’t develop its defence industry, China will emerge as the sole defence equipment manufacturer and supplier in the region.
• Improve Global standing: India is striving for a permanent seat at the United Nations Security Council (UNSC), however, it cannot remain effectively a net importer of security from four out of five permanent members of the UNSC.

Challenges in achieving self-reliance in the defence sector in India

• High import dependence: India imports nearly 60 per cent of its military hardware requirements from global arms manufacturing countries. As per SIPRI data, the value of imports of defence systems by India for the period 2013-16 was approximately Rs 82,496 crore. India accounts for 14 per cent of all global arms imports and has the dubious distinction of being the largest importer of arms in the world.
• Low self-sufficiency levels: Despite having a strong DIB, the long-cherished goal of achieving a minimum of 70 per cent self-sufficiency in defence procurement remains elusive. Currently, India’s self-reliance is hovering at around just 35- 40 per cent.
• Technology transfer dependence: India is mostly involved in the licensed production or manufacturing of defence equipment based on the Transfer of Technologies (TOT) obtained through the purchase of main equipment/systems in the past from the Original Equipment Manufacturers (OEMs).
• Dependency even for raw materials: The Comptroller and Auditor General of India (CAG) in a 2011 report to Parliament had expressed its displeasure at the 90 per cent import dependency of the state-owned Hindustan Aeronautics Ltd (HAL) for ‘raw materials and bought out items’ for production of what is touted as indigenously designed and developed Advanced Light Helicopter (ALH).
• Lack of funding: There is a lack of funding, as the incremental increase in the country’s defence budget is not enough to undertake big-ticket modernisation plans for the armed forces. Further, there will be a need for capital for enhancing the capacity and capabilities of the DPSUs, Ord Fys and DRDO.

Reasons for these lacking

• Weak domestic industry: This is largely due to the non-availability of modern, hi-tech and advanced weapon systems through the domestic industry (public and private). Though such imports serve the immediate needs of the country, in the larger perspective, they delay the process of indigenisation. There has been very limited participation of the private sector (less than 5 per cent) in the overall defence acquisition.
• Failure of DPSUs: The DPSUs/Ord Fys/DRDO were raised with the expectation to create self-reliance in the field of defence manufacturing, however, the same has remained elusive so far. Over the years, the contribution of the DPSUs/Ord Fys has been dismal, which is adequately mirrored in their decreasing stake in India’s capital budget.
• Gaps in the capacity and capability: There are gaps in the capacity and capability of the DPSUs/Ord Fys/ DRDO vis-à-vis the requirements of the armed forces for modernisation/ upgradation of the equipment profile, which leads to the off-the-shelf procurement of arms/weapon systems ex-import.
• Dismal participation in R&D: There is enormous scope for investment in defence R&D by the public as well as the private sector. As per a study carried out by Institute for Defence Studies and Analyses (IDSA), the OFB invests only 0.7 per cent of its budget in R&D against the minimum inescapable requirement of 3 per cent. It was also revealed that four of nine DPSUs do not own a single patent or copyright.
• Low FDI inflows: There is a lack of Foreign Direct Investment (FDI) in the defence sector. The aspect of FDI has not received adequate importance so far and, hence, there has been very low FDI in the defence sector.

Defence Industrialisation Phases in India

India’s defence industrialisation can be divided into five different phases:

• Phase 1: The Quest for Self-Sufficiency India’s defence industrialisation immediately after independence was influenced by the country’s socialistic and centralised planning system reflected in the first Industrial Policy Resolution adopted in 1948.

• Phase 2: Self-Sufficiency to Self-Reliance The events of the 1960s, particularly the 1962 war with China and the India-Pakistan war of 1965 brought about a major change in India’s defence policy. Not only India’s defence budget as a percentage of GDP increased in the subsequent years but also the approach towards arms procurement policy and indigenous defence production changed.
• Phase 3: Self-Reliance through Coproduction Beginning with the mid-1980s, the government pumped up resources on R&D to enable DRDO to undertake high-profile projects. A major beginning in this respect was made in 1983 with sanctioning of IGMDP, LCA Tejas project.
• Phase 4: While co-development/co-production remains a distinct feature of India’s defence industrialisation process since the late 1990s, the approach towards self-reliance has taken a major turn since the early 2000s, when the government decided to allow 100 per cent participation of the private sector in defence production.
• Phase 5: Self-Reliance through the Make in India Initiative. The Make in India initiative is not restricted to the defence industry; it covers 25 diverse sectors and constitutes a part of the Modi government’s larger economic plan to propel the share of manufacturing in GDP to 25 per cent (from 16 per cent at present) and create 100 million additional jobs by 2022

International model: How Chinese defence industry grew up?

• Initially used soviet technologies: The Chinese defense industry has undergone enormous changes in recent decades. Through much of the 1970s, China was primarily capable of producing weapons based on outdated Soviet technologies from the 1950s.
• The Absorptive model: The Chinese defense industry has long relied heavily on an absorptive model in which firms acquire foreign military and dual-use technology and incorporate this into the design and development of products. This approach has significantly reduced the amount of time and money China has had to invest in R&D and sped up Chinese efforts to modernize its military.
• Using Illegal ways: in addition to legally acquiring foreign know-how, China has also illegally copied and stolen foreign military and dual-use technology. In the 1990s, China purchased Russian Su-27 fighter jets and S-300 missile systems and reverse-engineered them to assist with designing its J-11 fighter jets and HQ-9 surface-to-air missiles.
• Current thrust on innovation: Under President Xi Jinping, China has intensified its pursuit of MCF (junmin ronghe) as a means of making the defense industrial base more efficient and innovative. 

Current scenario of India’s Defence exports

With all the past efforts of the government, some positive developments have started taking place in the Indian defence sector.

• Indian products on sale: India has put out a range of military hardware on sale which includes various missile systems, Light Combat Aircraft (LCA), helicopters, warship and patrol vessels, artillery guns, tanks, radars etc.
• 700% growth in exports: From 2016-17 to 2018-19, the country’s defence exports have increased from ₹1,521 crore to ₹10,745 crores, a staggering 700% growth.
• Exporting the defence material to 75 nations: India is exporting defence materials and equipment to more than 75 countries of the world. In 2021-22, defence exports from India reached $1.59 billion (about Rs 13,000 crore).
• The target of $5 billion export: The government has now set a target of $5 billion (Rs 40,000 crore).” This is an ambitious target and will demand mission-mode resolve to be realised.
• INS Vikrant: The commissioning of the indigenously-designed and built aircraft carrier INS Vikrant.
• SLBM Missiles: The recent test fired SLBM (submarine-launched ballistic missile) from the INS Arihant is indigenously built.
• LCH Prachand: The induction of the made-in-India Prachand LCH (light combat helicopter) is a significant leap.
• Increased defence production: India’s defence manufacturing sector recorded increased production to US$ 11.85 billion in FY22 from US$ 10.9 billion in FY21. India’s defence production stood at Rs. 17, 885 crore (US$ 2.24 billion) in FY 2022-23 (until 1 August 2022). Defence production by PSUs stood at Rs. 10,831 crore (US$ 1.36 billion) in FY 2022-23 (until 1 August 2022)
• Growth of startups: The Startup Incubation and Innovation Centre, IIT-Kanpur (SIIC IIT-Kanpur) recently signed an MoU with Defence Innovation Organisation (DIO) to nurture and support start ups and SMEs in the defence sector through its flagship programme iDEX Prime.
• Improving defence procurements: Although progress from the Defence Procurement Procedure was modest at first, it has picked up in recent years; approximately $4.3 billion worth of offset contracts have been signed and launched since 2007.

 

Steps taken by the Centre to boost defence production

• Licensing relaxation: Measures announced to boost exports since 2014 include simplified defence industrial licensing, relaxation of export controls and grant of no-objection certificates.
• Lines of Credit: Specific incentives were introduced under the foreign trade policy and the Ministry of External Affairs has facilitated Lines of Credit for countries to import defence products.
• Policy boost: The Defence Ministry has also issued a draft Defence Production & Export Promotion Policy 2020.
• Indigenization lists: On the domestic front, to boost indigenous manufacturing, the Government issued two “positive indigenization lists” consisting of 209 items that cannot be imported. Recently, the 4^th indigenization list has been launched.
• Budgetary allocation: In addition, a percentage of the capital outlay of the defence budget has been reserved for procurement from domestic industry.
• Defence Industrial Corridors: The government has also announced 2 dedicated Corridors in the States of TN and UP to act as clusters of defence manufacturing that leverage existing infrastructure, and human capital.
• Long-term vision: The vision of the government is to achieve a turnover of $25 bn including export of $5 bn in Aerospace and Defence goods and services by 2025.
• Push for self-reliance: The govt has identified the Defence and Aerospace sector as a focus area for the ‘Aatmanirbhar Bharat’ or Self-Reliant India initiative.

Way forward

• Increasing the investment in R&D is necessary: At the heart of this challenge is the grim reality that historically, India has not invested enough in the national research and development (R&D) effort. As per data collated by the World Bank, India has been able to allocate only 0.66 per cent of GDP (2018) towards R&D, while the world average is 2.63 per cent.
• Matching with the Global players in R&D: The comparable individual R&D allocation (per cent of GDP) for some other nations is as follows: Israel 5.44; USA 3.45; Japan 3.26; Germany 3.14; China 2.4; and Turkey 1.09.
• Making the R&D prior national issue: Providing a sustained fillip to the national R&D effort across the board (state, corporate and academia) remains critical if India is to emerge as a credible military power and one would identify this as a high-priority issue for the national security apex the CCS (cabinet committee on security).

Conclusion

• India is in an unusual and perhaps unique position to build a vibrant local defence-industry ecosystem that could support both domestic and export demand, yielding material benefits to the industry and the nation. Self-reliance is the sine qua non in defence, in India and elsewhere, and developing a vital industry is a big step in that direction.
• Meaningful indigenisation and credible “atma nirbharta” calls for sustained funding support, fortitude and an ecosystem that will nurture this effort.

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Context

• Recently, a constitutional jurist and senior advocate to the Supreme Court, Fali S. Nariman, highlighted the need to finetune mechanisms of accountability within the judiciary, especially at the Supreme Court and High Court levels.
• In this context, this edition of the burning issue will deal with the issue of accountability and other issues which ails the Indian Judiciary and suggest reforms to tackle these issues.

Indian judiciary: Structure

• The Judiciary is one of the three organs of the Indian government, and it is responsible for interpreting and applying the law. The Indian judiciary is an independent body that ensures the fair and impartial administration of justice in the country.
• The judiciary has a hierarchical structure, with the Supreme Court at the top followed by the High Courts, and then the lower courts.
• The Supreme Court is the highest court of appeals in India. It comprises the Chief Justice and 33 other judges appointed by the President of India. The Supreme Court has original, appellate, and advisory jurisdiction.
• At the level below the Supreme Court, there are High Courts. They exercise control over a state or a union territory. Each High Court consists of a Chief Justice and such other number of judges as may be determined by Parliament.
• At the lowest level, Subordinate courts include District Courts, Taluka Courts, Munsifs Magistrates’ Courts, and Village Panchayat Courts etc.

Judicial Independence

• For the prosperity and stability of the country, the rule of law is very important. An independent and impartial judiciary can establish a stable rule of law.
• Independence of the judiciary means, the power of upholding the rule of law, without any fear or external influence, and maintaining effective control over the actions of the government.
• The independence of the judiciary is part of the basic structure of the Constitution. The legal system does not have any ideology and political interests and is often rendered neutral. 
• The independence of the judiciary starts with the appointment of judges in the courts. Article 124 to Article 147 deals with the appointment of the Supreme Court judges and, Article 214 to Article 231 deals with the appointment of judges in the High Courts.
• However, such a high level of independence does not mean non-accountability of the judiciary.

Judicial Accountability

• Accountability is the sine qua non of democracy. The judiciary, an essential wing of the State, is also accountable.
• The term judicial accountability means that the judges are responsible for the decisions they deliver all by themselves. It is the transparency in the decision-making process that helps in bringing accountability. 
• The judiciary must be accountable to the law, in the sense that the decisions made are in accordance with the law and are not arbitrary. Like other branches of government, it must also be accountable to the general public it serves.

Issue of Accountability and Transparency in the Indian Judiciary

The Indian judiciary faces the challenge of lack of accountability at 3 levels-

(A) Lack of accountability in Judicial appointments:

• At present, the judges of the Supreme Court and the High Courts are appointed by a collegium system which includes CJI and 4 senior judges of the Supreme Court.
• Although there have been many debates associated with this method of appointing judges, the collegium system is one where transparency is absent in totality.
• The minutes of the collegium meetings deciding appointments and transfers of judges are not made public. The office of CJI has only recently been declared a public office.
• There have been no appointments from the category of distinguished jurists as mentioned under Article 124 of the constitution.
• It’s a non-constitutional body with no seat in the collegium for any non-judge neither from the executive, the Bar etc. This violates the principle of checks and balances.

(B) Distribution of Cases- Master of the Roster mechanism:

• The singular power of the CJI as the Master of the Roster – i.e., the vests exclusive discretion in the Chief Justice to constitute benches and allocate cases.
• While the CJI’s other powers such as recommending appointments to constitutional courts are shared with other senior judges, the power of Master of the Roster is enjoyed without scrutiny.
• From the standpoint of judicial independence, the Master of the Roster power makes the CJI’s office a high-stakes one. It makes the CJI the sole point of defence of the Court against executive interference.
• With the CJI as the sole Master of the Roster, any executive seeking to influence the Supreme Court needs only a pliant CJI. Yet, the Supreme Court has been reluctant to dilute this power.
• In Asok Pande v. Supreme Court of India (2018), a three-judge bench of the Court held that the Master of the Roster is the CJI’s exclusive power.
• Thereafter, a two-judge bench in Shanti Bhushan v. Supreme Court of India (2018) rejected the plea that the Master of the Roster should be interpreted as the collegium.

(C) The In-house Inquiry System:

• The in-house procedure, crystallised in a 1995 Supreme Court judgment in the C. Ravichandran Iyer case, details the various stages of the investigation into complaints against sitting high court judges.
• It requires the Chief Justice of India to constitute a three-member panel of Supreme Court judges to enquire into a complaint of misconduct received by the CJI against a sitting judge.
• The procedure, however, does not expressly provide for a mechanism to constitute a committee when the complaint is against the CJI himself.
• Controversy erupted when CJI constituted the bench by himself to probe a complaint against himself. The bench consisted of senior most judges of SC who will be CJI in near future. Since the current CJI will recommend the name of the next CJI, this raises the question of conflict of interest.
• The committee lacked overall representation of all stakeholders of SC e.g bar council, employees etc. It also violates the principle of natural justice.

Other Issues with the Indian judiciary

• Large vacancies: When it comes to vacancies, the Supreme Court has three seats vacant (out of 34), High Courts have 380 seats vacant (out of 1,108) and district and subordinate courts have 5,342 vacant seats (out of 24,631). This causes delays in cases solving and denial of justice to citizens.
• Large pendency of cases: According to an answer in the Rajya Sabha on August 4, the lower courts have around 4.1 crore pending cases while the High Courts have around 60 lakh pending cases. Further, the Supreme Court pendency is around 71,000 cases.
• Uncle judge syndrome: The Law Commission of India in their 230th Report has mentioned the matter of appointment of ‘Uncle Judges’ in the High Courts, wherein it is said that the Judges, whose kith and kin are practicing in a High Court, should not be appointed in the same High Court. Chief Justice can recommend judges from the Bar to be appointed as the judge of the High Court. In this situation, kith and kin of those appointed as judges and practicing in the High Court are likely. To correct the situation, judicial standards are being prescribed for the judges in the Judicial Standards and Accountability Bill, 2012 which has been passed by Lok Sabha already.
• Conflict with the executive: there have been rising conflicts between the executive and the judiciary wings over multiple matters such as delays in judicial appointment by the center, Tribunalisation of justice, open criticism of the executive during COVID times etc. this leads to the creation of tensions and mistrust between the two branches.
• Judicial activism and overreach: “Judicial Activism” refers to the process in which the judiciary steps into the shoes of the legislature and comes up with new rules and regulations, which the legislature ought to have done earlier. Judicial Overreach refers to an extreme form of judicial activism where arbitrary, unreasonable and frequent interventions are made by the judiciary into the legislature’s domain, often to disrupt the balance of powers between the executive, legislature and judiciary. Both issues have led to the creation of friction between the two branches.
• Post-retirement benefits: there have been several instances where several judges have been appointed to political and executive offices after their retirement. For example, former CJI Ranjan Gogoi was made a Rajya sabha member even before the end of his cooling-off period after retirement. This erodes the trust of people in the judiciary and affects judges neutrality.
• Corruption in lower courts: Judicial corruption takes two forms: political interference in the judicial process by the legislative or executive branch, and bribery. In 2013, 36% of citizens reported paying a bribe to the judiciary, a sad reality validated by many senior judges themselves. A 2007 survey that disaggregated bribe recipients showed that 59% of respondents paid bribes to lawyers, 5% to judges, and 30% to court officials for speedy and favorable judgments.
• Increasing Recusal of judges:  Recusal is the “removal of oneself as a judge or policymaker in a particular matter, especially because of a conflict of interest.In the Central Bureau of Investigation case, 3 Judges recused themselves from hearing the case challenging the appointment of M. Nageswara Rao as interim director of the Central Bureau of Investigation. Moreover, In the Ayodhya- Ramjanmabhoomi case, Justice U.U. Lalit recused him from hearing the dispute over land in Ayodhya after being pointed out that the judge had appeared for former Uttar Pradesh Chief Minister Kalyan Singh in a related contest.

Thus, Reforms are needed

• Balancing independence and accountability: One of the reasons for having stronger judicial accountability is to strike a balance between judicial accountability and judicial independence. They can be considered to be complementary to each other. Both these concepts aim to bring about judicial courage and judicial integrity is to be enforced together to increase the efficiency of the working of the judicial system.
• Reform on case management: to reduce the frequency of adjournments and better case listing: A bench of three justices of the Supreme Court, in a judgment delivered in August 2005, had drawn up a fine blueprint on case management, on how to make recent amendments in our procedural laws work on the ground, and how to get more cases moving along: For instance, on three different tracks, fast track, normal track and slow track.
• Supreme court should directly administer High courts: It is time that the Supreme Court be entrusted with direct responsibility for the functioning of the high courts: Only then can the highest court be an effective apex court, and only then can the Supreme Court be made answerable, as it should be, for judicial governance for the entire country.
• Public disclosure of income by judges: Judges must make annual financial disclosure statements, not privately to their respective chief justices, but publicly. It is done by justices of the Supreme Court.
• Removing the disparity between retirement ages of HC and SC judges: High Court judges now retire at 62 and Supreme Court judges at 65.  It is high time that we did away with the disparity between the retirement ages of the High Court and Supreme Court judges.
• Create a cadre of public service for retired judges: It would be worthwhile reform to create a cadre of public service for retired judges and from this pool make appointments to the constitutional and statutory posts and special assignments. We should have a culture of public service for senior judges, and those who do not fit in such a culture should not be a part of senior ranks.
• Reform in the process of appointment of Chief Justice of India: It is generally assumed that the senior judge of the Supreme Court should be the Chief Justice of India. The Constitution mandates no such thing. Article 124 merely states that the President will appoint every judge of the Supreme Court, and this includes the Chief Justice, and each of these judges shall hold office until they attain the age of 65 years. There is no good reason why any one particular person should have a vested interest in the top job, and we are better served by eliminating such expectations.
• Creation of National Judicial Infrastructure Corporation (NJIC): The CJI has pitched to set up a National Judicial Infrastructure Corporation (NJIC) to develop judicial infrastructure in trial courts. Experience shows that budgetary allocation for state judiciary often lapses since there is no independent body to supervise and execute such works. NJIC is expected to fill this vacuum and overcome problems related to infrastructure.
• Creation of a National Court of Appeal: The National Court Appeal with regional benches in Chennai, Mumbai and Kolkata is meant to act as the final court of justice in dealing with appeals from the decisions of the High Courts and tribunals within their region in civil, criminal, labor and revenue matters. In such a scenario, a much-relieved Supreme Court of India situated in Delhi would only hear matters of constitutional law and public law.
• Creating All Indian Judiciary Services: It would be a landmark move to create a pan-India Service that would result in a wide pool of qualified and committed judges entering the system.
• Technology infusion: The ethical and responsible use of AI and ML for the advancement of efficiency-enhancing can be increasingly embedded in legal and judicial processes.
• Improving Legal education: This should be in alignment with the evolving dynamics of the law and must be propagated in trial and constitutional courts. This will improve the competence of the judicial system.
• Promote Alternate Dispute Resolution (ADR): ADR mechanisms should be promoted for out-of-court settlements. Primary courts of appeal should be set up.
• Dispensation in local languages: For making the entire judicial system more understandable to the common man, one way is the use of the local languages in courts.

International Model: How judiciary in the USA maintain its credibility and accountability?

• Judicial council act: In the United States, under the Judicial Councils Act, 1980, task of judicial independence has been gladly undertaken by the judges. But regrettably, so far, there is no law in India to guide our judges only “guidelines”. There is a felt need for a law.
• Judges investigate the judges: The 1980 US Act confers powers on bodies comprised of judges to take such action against a federal judge “as is appropriate, short of removal.”
• A case study of America: Under this law, some time ago, a committee of fellow judges had investigated complaints against a federal district judge, John McBryde; the Judicial Council reprimanded him and suspended him from hearing new cases for a year.
• Corruption Investigation Not violating the judicial independence: McBryde challenged the decision. He argued that the 1980 law violated the judicial independence that the US Constitution had guaranteed to life-tenured federal judges, But a US Court of Appeals rejected all these pleas.
• Oversight of judges is not interference: It accepted the argument of the US Solicitor-General that judicial independence, protected by Article III of the US Constitution, was meant to insulate judges from interference from other branches of government and not from oversight by other judges.

Steps taken to Improve Judicial functioning

• Legal: Enactment of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act 2015 To ensure speedy and fair disposal of ‘commercial disputes, especially those of high value.Also, Draft National Litigation Policy under formulation to make Government a responsible and efficient litigant.
• Technological: A web portal Legal Information and Management Based System (LIMBS) set up for monitoring of Court Cases of the entire GOI.Also, theeCourts Mission Mode Project has been taken up for universal computerization of district and subordinate courts with an objective of providing designated services to litigants, lawyers and the judiciary. AI-powered SUPACE portal has also been launched.
• Increased strength and appointments: Appointment of Judges in higher judiciary undertaken. 86 additional Judges made permanent, 51 newly appointed and the appointment of another 170 is being processed. Judges’ sanctioned strength of the High Courts increased from 906 on 01.06.2014 to 1065 as on 27.4.2016.
• Development of Infrastructure facilities: Department of Justice has been implementing a Centrally Sponsored Scheme for the Development of Infrastructure Facilities for the Judiciary.
• Promotion of alternate Dispute Resolution Mechanism: through the National Legal Services Authority (NALSA) at the national level and State Legal Services Authorities at the State level.

Conclusion

• Judicial challenges need to be tackled at multiple levels, instead of a single-pronged approach of merely looking at appointments or more courts. Judicial independence and Judicial accountability need to be balanced well.
• It requires coordination and cooperation between the government, the Judiciary, the Bar, and the general public. Each is a stakeholder and is also responsible for ensuring that the system works. 

“Like old clocks, our judicial institutions need to be oiled, wound up and set to true time”