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GS Paper: GS2

  • Judiciary needs more HC judges: CJI

    Chief Justice of India N.V. Ramana said there was a need to both increase the number of judges in High Courts and urgently fill existing vacancies.

    Judicial vacancy in India

    • The Indian judiciary faces high vacancies across all levels (the Supreme Court, High Courts, and subordinate courts).
    • Vacancy of judges in courts is one of the reasons for delays and a rising number of pending cases, as there are not enough judges to hear and decide cases.
    • As of today, more than four crore cases are pending across all courts in India.

    Appointing judges to the HC

    • The appointment of the judges to the high courts is governed by Article 217 of the Constitution.
    • In addition to the constitutional provisions, the process of appointments outlined in the Memorandum of Procedure (MoP) is a lengthy one.
    • It is initiated by the Chief Justice of the concerned high court who recommends the nominees to the state government.
    • Ideally, this process should begin six months prior to the occurrence of the vacancy.
    • The state government then sends the recommendation to the Union Law Ministry, which then sends it to the Supreme Court Collegium.

    HC Vacancies

    • The total sanctioned judicial strength in the 25 High Courts is 1,080.
    • However, the present working strength is 661 with 419 vacancies as on March 1.
    • The Supreme Court has been repeatedly conveying to the government its growing alarm at the judicial vacancies in High Courts.
    • Some of these High Courts are functioning only with half their sanctioned judicial strength.
    • On average, the courts suffered at least 40% judicial vacancies.

    Why is there a huge gap?

    Ans. Timeline of appointment is arbitrary

    • Appointments of High Court judges are guided by a memorandum of procedure.
    • As per this memorandum, the appointment process is to be initiated by the concerned High Court at least six months before a vacancy occurs.
    • However, the Standing Committee (2021) noted that this timeline is rarely adhered to by High Courts.
    • Further, in the final stage of the process, after receiving recommendations from the Supreme Court collegium, the executive appoints judges to the High Court.
    • No timeline is prescribed for this stage of the appointment process.

    How many judges do we need?

    • The Law Commission of India (1987) had noted the importance of manpower planning for the judiciary.
    • Lack of adequate number of judges means a greater workload per judge.
    • Thus, it becomes essential to arrive at an optimal judge strength to deal with pending and new cases in courts.
    • Over the years, different methods of calculating the required judge strength for subordinate courts (where the backlog of cases in the Indian judiciary is concentrated) have been recommended:
    Method of calculation Recommendation and its status
    Judge-to-population ratio: Optimum number of judges per million population The Law Commission of India (1987) had recommended increasing this ratio to 50 judges per million people.   For 2020, the judge-to-population ratio was 21 judges per million population.
    Rate of disposal: Number of additional judges required (to clear the existing backlog of cases and ensure that new backlog is not created) based on the average number of cases disposed per judge The Law Commission of India (2014) proposed this method.  It rejected the judge-to-population ratio method, observing that filing of cases per capita varies substantially across geographic units depending on socio-economic conditions.
    Weighted case load method: Calculating judge strength based on the disposal by judges, taking into account the nature and complexity of cases in local conditions It addresses the existing backlog of cases as well as the new flow of cases every year in subordinate courts.     In 2017, the Supreme Court accepted this model.
    Time-based weighted case load method: Calculating the required judge strength taking into account the actual time spent by judges in different types of cases at varying stages based on an empirical study Used widely in the United States, this was the long-term method recommended by the NCMS (2016) to assess the required judge strength for subordinate courts.  It involves determining the total number of ‘judicial hours’ required for disposing of the case load of each court.  The Delhi High Court used this approach in a pilot project (2017- 2018) to calculate the ideal judge strength for disposing of pending cases in certain courts in Delhi.

    Back2Basics:

    What is Collegium System?

     

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  • Society for Worldwide Interbank Financial Telecommunication (SWIFT)

    The U.S., Europe and several other western nations are moving to exclude Russia from SWIFT, an international network for banks worldwide to facilitate smooth money transactions globally.

    What is SWIFT?

    • SWIFT is an international network for banks worldwide to facilitate smooth money transactions globally.
    • It is basically a messaging network used by banks and financial institutions globally for quick and faultless exchange of information pertaining to financial transactions.
    • The Belgium-headquartered SWIFT connects more than 11,000 banking and securities organizations in over 200 countries and territories.
    • First used in 1973, it went live in 1977 with 518 institutions from 22 countries, its website states.

    What exactly is it?

    • SWIFT is merely a platform that sends messages and does not hold any securities or money.
    • It facilitates standardized and reliable communication to facilitate the transaction.

    How does it facilitate banking?

    • Each participant on the platform is assigned a unique eight-digit SWIFT code or a bank identification code (BIC).
    • If a person, say, in New York with a Citibank account, wants to send money to someone with an HSBC account in London, the payee would have to submit to his bank the London-based beneficiary’s account number along with the eight-digit SWIFT code of the latter’s bank.
    • Citibank would then send a SWIFT message to HSBC. Once that is received and approved, the money would be credited to the required account.

    How is the organization governed?

    • SWIFT claims to be neutral. Its shareholders, consisting of 3,500 firms across the globe, elect the 25-member board, which is responsible for oversight and management of the company.
    • It is regulated by G-10 central banks from Belgium, Canada, France, Germany, Italy, Japan, The Netherlands, the UK, the US, Switzerland, and Sweden, alongside the European Central Bank.
    • Its lead overseer is the National Bank of Belgium.
    • The SWIFT oversight forum was established in 2012.
    • The G-10 participants were joined by the central banks of India, Australia, Russia, South Korea, Saudi Arabia, Singapore, South Africa, the Republic of Turkey, and the People’s Republic of China.
    • Europe, Middle East, and Africa are highest contributors to SWIFT.

    What happens if one is excluded from SWIFT?

    • US excluding Russia from SWIFT could have serious repercussions on how Russian banks carry out international financial transactions.
    • If a country is excluded from the most participatory financial facilitating platform, its foreign funding would take a hit, making it entirely reliant on domestic investors.
    • This is particularly troublesome when institutional investors are constantly seeking new markets in newer territories.
    • An alternative system would be cumbersome to build and even more difficult to integrate with an already expansive system.

    Are any countries excluded from SWIFT?

    • Iranian banks were ousted from the system in 2018 despite resistance from several countries in Europe.
    • This step, while regrettable, was taken in the interest of the stability and integrity of the wider global financial system, and based on an assessment of the economic situation.

     

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  • What is the Munich Security Conference (MSC)?

    The latest edition of MSC a week ago assumed significance as it was here that the Ukrainian President appealed for help ahead of the Russian invasion.

    Munich Security Conference

    • The Munich Security Conference is an annual conference on international security policy that has been held in Munich, Bavaria, Germany since 1963.
    • It brings together heads of state, diplomats and business leaders from the world’s leading democracies for three days of meetings and presentations.
    • It is the world’s largest gathering of its kind.
    • Over the past four decades the MSC has become the most important independent forum for the exchange of views by international security policy decision-makers.

    How did it begin?

    • When the MSC was founded in 1963, it was envisioned as a way for leaders, mostly from the West, to discuss threats and dangers in an informal setting.
    • Most of the concerns at the time stemmed from the Cold War, which had dominated world politics for nearly a half-century.
    • Over time, the conference evolved into a platform for airing grievances and workshopping political agreements, some of them outside the realm of East-West relations.
    • In recent years, the conference has often invited leaders from authoritarian countries, and even adversaries, to speak.

     

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  • Inflection point for the West-led global order

    Context

    The Ukraine crisis has come to a head with Russia biting the bullet and launching “a full-scale invasion of Ukraine.

    Russian invasion and response of the West

    • Hours before the invasion, the western countries had imposed a new round of sanctions against Moscow (targeting Russian individuals and banks linked to Mr. Putin’s regime).
    • German Chancellor Olaf Scholz suspended certification of Nord Stream 2, a major gas pipeline between Russia and his nation.
    • The European Union has announced a “massive” package of sanctions.
    • Incoherence in response: the West has been incoherent in its response — not being able to present a united front, and worse, not even speaking the same language at times.
    •  For the West, this has been a moment when it has been found wanting — a lack of imagination, lack of will and lack of leadership, all rolled into producing a lackadaisical response to the one of most serious security crises in decades.
    • France has used this moment of crisis in trying to showcase its own leadership credentials.
    • Lack of trans-Atlantic engagement: It turns out that even Mr. Biden has not been able to build the trans-Atlantic engagement around common objectives to be pursued collectively.
    • Energy dependence: With the EU importing 39% of its total gas imports and 30% of oil from Russia, and with the Central and Eastern European countries being almost 100% dependent on Russian gas, the reasons for internal EU dissonance are not that difficult to fathom.

    Implications for Indo-Pacific

    • Emboldening China: This ineffectual western response has emboldened not only Russia but also China as the focus of the West is in danger of moving away from the Indo-Pacific.
    •  The Russia-China ‘axis’ is only getting stronger as the two nations seem ready to take on the West that seems willing to concede without even putting up a fight.

    Conclusion

    Today, the balance of power is once again in flux, and as China develops a strategic partnership with Russia, the future of the West-led global order will be defined by how effectively it responds to the crisis in Ukraine.

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  • Russian actions in Ukraine hardly pass the test for strategic victory

    Context

    On February 24, Russian President Vladimir Putin launched “special military operations” with the objective of “demilitarising Ukraine” but not “occupying” it.

    Why it was a crisis in the making?

    • Redrawing national boundaries by force: After 1945, this is the second time that national boundaries are being redrawn by force; the first was the 1999 North Atlantic Treaty Organization (NATO) air strikes on Serbian forces that led to the creation of Kosovo.
    • Russian and Chinese protests about NATO undertaking “out of area operations” without United Nations Security Council approval carried little weight.
    • After the fall of the Berlin Wall in late-1989, then U.S. Secretary Of State had assured the Soviet President that “there would be no extension of NATO’s jurisdiction one inch to the east”.
    • Rather than look for a new European security framework, the newly independent Baltic and central European states sought security in a U.S.-led NATO.
    • Beginning in 1999, NATO has added 14 new members in stages.
    • At the NATO summit in 2008, at U.S. President George Bush’s urging, an in-principle opening for Ukraine and Georgia was announced, though France and Germany, conscious of Russian concerns, successfully opposed defining a time frame.
    • Later that year, Russia intervened in Georgia on the grounds of protecting the Russian minorities and took over the northern provinces of Abkhazia and South Ossetia.
    • Annexation of Crimea:  In 2014 Mr. Putin annexed Crimea.
    • For Russia, Crimea is vital as the peninsula hosts Russia’s Black Sea fleet, providing it access to the Mediterranean and its bases at Latakia and Tartus in Syria.
    • Despite no timeline for membership, Ukraine was made a NATO Enhanced Opportunity Partner in 2020.
    • The presence of British and U.S. warships in the Black Sea began to increase.
    • In 2019, the U.K. entered into a cooperation agreement with Ukraine to develop two new naval ports, Ochakiv on the Black Sea and Berdyansk on the Sea of Azov, a move that Russia saw as potentially threatening.
    • Beginning with NATO’s bombing of Serbia in 1999, interventions in Afghanistan, Iraq and Libya and colour revolutions to engineer regime changes, the U.S.’ unilateral withdrawal from the Anti-Ballistic Missile (ABM) Treaty in 2002 coupled with missile defence deployments in Poland and Romania, Russia’s grievances were accumulating.

    Faltering diplomacy

    • France and Germany initiated talks between Ukraine and Russia under the Normandy format leading to the Minsk agreements, in 2014 and 2015.
    • The first was for a ceasefire between Ukraine and the Russian-backed separatists and the second was between Ukraine, Russia, the two separatist regions of Luhansk and Donetsk and the Organization for Security and Co-operation in Europe (OSCE).
    • Supportive declarations by France and Germany were intended to address Russian security concerns.
    • Ukraine undertook to introduce certain constitutional amendments to provide a degree of autonomy to the two provinces and Russia was to assist in withdrawal of all foreign forces.
    • However, neither side implemented and positions have only hardened since.
    • Russia’s threatening moves made NATO members, especially the Baltic states (Estonia, Latvia and Lithuania) and the central Europeans like Poland and Romania, especially nervous.
    • Finally, NATO remained united but unable to provide an off-ramps solution.

    Implications for Russia

    • NATO has been rejuvenated, the trans-Atlantic unity strengthened and Russia’s economic ties with Europe have been adversely impacted.
    • Given Russia’s considerable foreign exchange reserves, of nearly $640 billion, sanctions imposed by the U.S. and EU may not hurt immediately but eventually will begin to bite both the oligarchs and the common people.
    • Worse, Russia will become more dependent on China — for political support as well as a market for its energy exports. 
    • This will eventually weaken its hand in central Asia.

    Conclusion

    For Mr Putin challenge is to constrain the adversary’s options while increasing one’s own options and space for manoeuvre. His actions this week may yield tactical gains but hardly pass the test for strategic victory.

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  • Places in news: Chernobyl

     

    Ukrainian authorities said that radiation levels had increased in the Chernobyl exclusion zone after the Russian Invasion.

    What is Chernobyl Disaster?

    • The Chernobyl disaster was a nuclear accident that occurred on 26 April 1986 at the No. 4 reactor in the Chernobyl Nuclear Power Plant, near the city of Pripyat in the north of Ukraine (formerly USSR).
    • It is considered the worst nuclear disaster in history both in cost and casualties.
    • It is one of only two nuclear energy accidents rated at seven—the maximum severity—on the International Nuclear Event Scale.
    • The other such incident was the 2011 Fukushima Daiichi nuclear disaster in Japan.

    Destruction caused

    • Some sources state that two people were killed in the initial explosions, whereas others report that the figure was closer to 50.
    • Dozens more people contracted serious radiation sickness; some of them later died.
    • Between 50 and 185 million curies of radionuclides (radioactive forms of chemical elements) escaped into the atmosphere.
    • This is several times more radioactivity than that created by the atomic bombs dropped on Hiroshima and Nagasaki, Japan.
    • This radioactivity was spread by the wind over Belarus, Russia, and Ukraine and soon reached as far west as France and Italy.

     

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  • Russian Aggression on Ukraine and International Law

    The Russian annexation of Russia has been condemned widely and raised several questions concerning violation of international law.

    How is Russia violating the UN Charter?

    (1) Principle of Non-Intervention

    • The Russian attack on Ukraine is violative of the non-intervention principle, and amounts to aggression under international law.
    • The principle of non-intervention in domestic affairs is the foundational principle on which existing international order is based.
    • The principle is enshrined in article 2(4) of the UN Charter requiring states to refrain from using force or threat of using force against the territorial integrity or political independence of any state.
    • It prohibits any kind of forcible trespassing in the territory of another state, even if it is for temporary or limited operations such as an ‘in and out’ operation.

    (2) Principle of Non-Aggression

    • The UN General Assembly Resolution 3314 (1974) defines aggression as the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state.
    • Additionally, allowing one’s territory to be used by another state for aggression against a third state, also qualifies as an act of aggression.
    • Accordingly, Belarus can also be held responsible for aggression as it has allowed its territory to be used by Russia for attacking Ukraine.
    • Aggression is also considered an international crime under customary international law and the Rome statute establishing the International Criminal Court.

    (3) Principle of Political Independence

    • Russia’s desire to keep Ukraine out of NATO is a prime reason for its use of force against Ukraine.
    • This is violative of Ukraine’s political independence under article 2(4) as Ukraine being a sovereign state is free to decide which organizations it wants to join.
    • Also, by resorting to use of force, Russia has violated article 2(3) which requires the states to settle their dispute by peaceful means in order to preserve international peace and security.

    (4) Principle of Self-Defence

    • In face of the use of force by Russia, Ukraine has the right to self-defence under international law.
    • The UN Charter under article 51 authorizes a state to resort to an individual or collective self-defense until the Security Council take steps to ensure international peace and security.
    • In this case, it seems implausible for the UNSC to arrive at a decision as Russia is a permanent member and has veto power.

    Russia’s hype:

    (1) Nuclear escalation

    • It has been claimed by Russia that Ukraine may acquire nuclear weapons with the help of western allies.
    • However, the International Court of Justice (ICJ) in the Legality of Threat of Nuclear Weapons case held that mere possession of nuclear weapons does not necessarily constitute a threat.
    • Thus, even if Ukraine has, or were to acquire nuclear weapons in the future, it does not become a ground for invoking self-defence by Russia.

    (2) Aggression against Russia

    • Further, mere membership in a defence alliance such as NATO cannot necessarily be considered as a threat of aggression against Russia.
    • Thus, here too Russia cannot invoke self-defence.

    (3) Act in self-defence

    • Russia can also not invoke anticipatory self-defence.
    • Such invocation according to the Caroline test would require that the necessity of self-defence was instant, overwhelming, leaving no choice of means, and no moment for deliberation.
    • However, this is not the case with Russia.

    What options is Ukraine left with?

    • Ukraine has a right under international law to request assistance from other states in form of military assistance, supply of weapons etc.
    • On the other hand, Russia has also claimed that it is acting in self-defence.
    • This claim is questionable, as there has been no use of force, or such threats against Russia by Ukraine.

     

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  • Changing dynamics of Pakistan-Russia Relations

    The two-day visit to Moscow by Pakistan’s PM Imran Khan comes at a time when President Vladimir Putin is the bad boy of the world for his actions against Ukraine.

    Pakistan–Russia Relations: A backgrounder

    • The Soviet Union and Pakistan first established diplomatic and bilateral relations on 1 May 1948.
    • For most of the Cold War, the Soviet Union’s relations with Pakistan have seen ups and downs during the different periods in the history of Pakistan.
    • Pakistan is credited for playing a key role for allying and supporting the West during this time period of the Cold War.
    • In recent years their ties have warmed as a countermeasure to warming ties between India and the United States.

    Instances of Russia defying India

    • The two countries carried out their first-ever joint military drills in 2016 despite Indian requests to postpone due to the Uri attack.
    • Pakistan and Russia signed an agreement for the Pakistan Stream Gas pipeline from Karachi to Kasur, and reached a price accord by December 2016.
    • Pakistan has also granted Russia access to a warm water port in the Arabian Sea (Gwadar Port).
    • Their mutual partnership with China that has grown in recent years signals the undeniable development of a new axis in South Asia and Central Asia.
    • The two countries take the lead in projecting the Taliban as the rightful claimants to power in Kabul.

    A timeline of relations

    • Cold war era: Pakistan’s relations with Russia have come a long way since the time it was a willing ally and treaty partner of the US bloc against the Soviet Union. It had helped the US repair its relations with China, which sent Beijing and Moscow further apart.
    • Paving way for India: In response, India and USSR solidified their ties with a defense pact and increased economic and people-to-people exchanges.
    • Afghan War: Pakistan saw itself as a frontline state against the spread of communism, and actively aided and assisted in the defeat of the Red Army in the first Afghan war, with the US and Saudi Arabia using the Pak Army.
    • Fall of USSR: The collapse of the Soviet Union led to major shifts in international relations. From their vantage points, Pakistan and Russia watched the US and post-economic-reforms India draw closer.

    Pakistan parted with the US

    • Putin’s Russia began looking for new markets for its military hardware, as well as new international partners, began building ties with Pakistan.
    • By then, serious rifts had emerged between the Obama Administration and Pakistan.
    • The killing of Osama bin Laden in a stealth raid by US marines in Pakistan’s Abbottabad became the turning point.

    Russia-Pakistan-China

    (1) Helping the lonely Pakistan

    • In 2011, to New Delhi’s shock, Russia lifted its four-decade-old arms embargo on Pakistan — and within four years, would sell Pakistan its first MiG attack helicopters.
    • As a US defeat in Afghanistan began to look certain, both countries made common cause on Afghanistan, again to India’s dismay.
    • In September 2016, after the Jaish-e-Mohammed attack in Uri, Russia went ahead with a joint military exercise with Pakistan, ignoring New Delhi’s appeal.
    • In 2017, with Indo-Pak relations at their lowest, Russia sold more helicopters to Pakistan.

    (2) Enters the old dragon

    • After its 2014 annexation of Crimea, Russia found a friend in China, the long-time friend of Pakistan, triangulating the relationship.
    • Both Pakistan and Russia are participants in China’s Belt and Road Initiative.
    • After the Taliban takeover in Afghanistan, the world has seen the three take common positions and in tacit acknowledgment of each other’s interests in that country.

    Impact on ties with India

    • The Russia-India relationship is not what it used to be in the Soviet days, both sides recognise its continued mutual benefits. However-
    1. Russia is hardly starry-eyed about its relations with Pakistan.
    2. It has clear views against Pakistan’s patronage of terrorists.
    3. While it is supportive of the Taliban regime, Russia is concerned about radical terrorism expansion from Afghanistan.
    • Russia remains India’s biggest arms supplier, and India took the risk of being sanctioned by the US when it bought the Russian S 400 missile defence system.
    • New Delhi has not yet allowed its close ties with the US to tilt its delicate balance on the Ukraine issue.

    Significance of Pak Visit

    • IK is visiting Russia on the Kremlin’s invitation sides to convey their own messages to the West about building partnerships in a changing world.
    • He will become the first foreign leader to visit Russia after Putin recognized two breakaway regions of Ukraine as independent republics.
    • He is also the first Pakistani PM to travel to that country since the landmark visit by Nawaz Sharif in 1999.

    What does Pakistan seeks to have?

    • Pakistan wants Russia to invest in, and construct a $2.5 billion gas pipeline from the seaport in Karachi to Kasur in the Punjab hinterland, even though this pipeline is unlikely to transport Russian gas.
    • Moscow, however, appears to be more interested in the possibility of building the 1,800-km Turkmenistan-Afghanistan-Pakistan-India (TAPI) pipeline.

     

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  • Who is a Chess Grandmaster?

    India’s teenage chess grandmaster Rameshbabu Praggnanandhaa has won praise for a stunning victory over world number one Magnus Carlsen in an online championship.

    Why are we reading this?

    • UPSC had asked three questions on sports in CSP 2021. They were based on Laureus World Sports Award, Summer Olympics, and ICC World Test Championship.
    • Try to ace uncertainties. No one can memorize such facts.

    Grandmaster: Behind the Title

    • Grandmaster is the highest title or ranking that a chess player can achieve.
    • The Grandmaster title — and other chess titles — is awarded by the International Chess Federation, FIDE (acronym for its French name Fédération Internationale des Échecs).
    • It is the Lausanne-Switzerland-based governing body of the international game.
    • The title is the badge of the game’s super elite, a recognition of the greatest chess talent on the planet, which has been tested and proven against a peer group of other similarly talented players.

    Other (lesser) titles

    Besides Grandmaster, the Qualification Commission of FIDE recognises and awards seven other titles:

    1. International Master (IM)
    2. FIDE Master (FM)
    3. Candidate Master (CM)
    4. Woman Grandmaster (WGM), Woman International Master (WIM), Woman FIDE Master (WFM), and Woman Candidate Master (WCM) and so on .

    Titles are for life

    • All the titles, including that of Grandmaster, are valid for life, unless a player is stripped of the title for a proven offence such as cheating.

    Qualifications for Grandmaster

    • The qualifications for Grandmaster were changed several times, including in 1957, 1965, and 1970.
    • Currently, FIDE awards chess’s highest honour to a player who is able to achieve a FIDE Classical or Standard rating of 2,500, plus three Grandmaster norms.
    • Grandmaster norms are defined by a set of complex and rigorous rules regarding tournaments, games, and players, that are set out in the FIDE Title Regulations.
    • The current regulations were approved by the FIDE Council on October 27, 2021, and came into effect on January 1, 2022.
    • Each norm is very difficult to attain.
    • Broadly, a player must have a performance rating of 2,600 or higher in a FIDE tournament that has nine rounds.

    Who holds maximum titles?

    • FIDE has so far recognized fewer than 2,000 Grandmasters out of the millions who play the game around the world.
    • A vast majority of Grandmasters have been male. Russia (and the erstwhile USSR) has produced the most Grandmasters in the world, followed by the United States and Germany.

    Grandmasters in India

    • India became a chess powerhouse in the 2000s, and now has more than 70 Grandmasters.
    • In 2016, Praggnanandhaa had become the world’s youngest IM at age 10 years, 10 months, and 19 days.

    Try this question from CSP 2021:

    Q. Consider the following statements in respect of the Laureus World Sports Award which was instituted in the year 2000:

    1. American golfer Tiger Woods was the first winner of this award.
    2. The award was received mostly by ‘Formula One’ players so far.
    3. Roger Federer received this award maximum number of times compared to others.

    Which of the above statements are correct?

    (a) 1 and 2 only

    (b) 2 and 3 only

    (c) 1 and 3 only

    (d) 1, 2 and 3

     

    [wpdiscuz-feedback id=”77m1w3if0o” question=”Please leave a feedback on this” opened=”1″]Post your answers here.[/wpdiscuz-feedback]

     

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  • Untangling Kerala’s Lokayukta controversy

    Context

    The controversy surrounding the amendment to the Lokayukta Act of Kerala — effected through an ordinance —has raised the political temperature in the State.

    The background of the Lokayukta

    • The term Lokpal was first used in a report of the Administrative Reforms Commission headed by Morarji Desai as far back as in 1966.
    • The first Bill on Lokpal was introduced in the Lok Sabha in 1968 which lapsed with the dissolution of the House.
    • Finally, after 45 years the Lokpal and Lokayuktas Bill was passed by Parliament in 2013.
    • The Lokpal and Lokayukta Act delegates the power to States to establish by law the Lokayukta to deal with complaints relating to corruption against public functionaries.
    • The Lokpal has jurisdiction to inquire into allegations of corruption against the Prime Minister, Ministers, Members of Parliament, Group A, B, C and D officers and officials of the central government.
    • After the conclusion of the investigation, the Lokpal may file a case in the special court in case the findings disclose the commission of offence under the Prevention of Corruption Act by the Prime Minister, Ministers or Members of Parliament.
    • Some States already have established Lokayuktas. For example, Maharashtra in 1971, and Kerala in 1999.

    How Lokpal is different from other investigative bodies

    • The Lokpal is no ordinary investigative body.
    • Connection with judiciary: It is headed by the incumbent Chief Justice of of India or a retired judge.
    • It has eight members, four of whom are judicial members.
    • The Lokpal has an inquiry wing and a prosecution wing to deal with investigation and prosecution, respectively.
    • The director of prosecution files the case in the special court based on the findings of the Lokpal.

    Issue in Kerala

    • In order to get a clearer perspective on the Kerala Lokayukta controversy, it is necessary to understand the scheme of the Lokpal and Lokayuktas Act enacted by Parliament.
    • The long title of the Act says: “An Act to provide for the establishment of a body of Lokpal for the Union and Lokayukta for States to inquire into allegations of corruption against certain public functionaries….”
    • Investigative body: Thus, the Lokpal is conceived of as a body which will inquire into allegations of corruption.
    •  Section 14 of the Lokayukta Act in Kerala which has now been amended said that if  the Lokayukta is satisfied on the complaint against the public servant being substantiated that he should not continue to hold the post held by him.
    • In other words, if the public servant is the Chief Minister or a Minister, he shall forthwith resign his office.
    • It may be noted here that such a provision does not exist in any of the State laws or the Lokpal Act of the Centre.
    •  An investigative body does not have the legal authority to direct the public servant to resign his post on the basis of its findings.
    • The Chief Minister or a Minister holds office during the pleasure of the Governor (Article 164).
    • The Constitution of India does not contemplate any external pressure on the Governor to withdraw his pleasure.
    • The Sarkaria Commission had suggested that the Governor can dismiss a Chief Minister only when he loses his majority in the Assembly and refuses to step down.
    • The Supreme Court has accepted this recommendation of the Sarkaria Commission.
    • No agency created by a law made by the Assembly, particularly an investigative body, can declare that its decision be carried out by the Governor.
    • It would amount to a violation of the Constitution.
    • State law includes the office bearers of political parties within its definition of ‘public servant’. 
    • The Lokayukta law was enacted to inquire into cases of corruption of public functionaries such as Ministers, legislators, etc. who are covered by the Prevention of Corruption Act.
    • This Act does not include office-bearers of political parties in its definition clause.
    • Another problematic provision in this law is the one which deals with the reports of Lokayukta (Section 12).
    • It says that the Lokayukta shall, on the allegation of corruption being substantiated, send the findings along with recommendation of action to the competent authority who is required to take action as recommended by the Lokayukta.
    • It further says that if the Lokayukta is satisfied by the action taken by the competent authority, he shall close the case.
    • There is no provision in the central law under which the Lokpal can close the case before it reaches the court.
    • The Lokayukta not being a court does not have the legal capacity to close the corruption case under any circumstances.

    Conclusion

    The Kerala Lokayukta Act should be re-examined by a committee of the Assembly and should be brought on a par with the Lokpal Act. A legislation which seeks to punish corrupt public functionaries should be placed above controversies.

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