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GS Paper: GS2

  • Judiciary and challenges ahead

    The relations between the judiciary and executive have always been tumultuous. This article analyses the changes in the judiciary’s relations with the executive after 2014.

    Relations with executive

    • In 2014 government blocked the elevation of Gopal Subramanium as a judge of the apex court.
    • A month later, the government introduced a bill to create the National Judicial Appointments Commission (NJAC).
    • The NJAC Act was passed by Parliament in December 2014.
    • In October 2015, the SC struck down the NJAC Act, ruling that it would affect the independence of the judiciary vis-Ă -vis the executive.
    • Following striking down of the NJAC Act, the SC directed the government to propose a new memorandum of procedure (MoP) for appointments to the higher judiciary.
    • The draft government sent to the Court allowed the government to reject any name recommended by the Collegium on grounds of national security and made it compulsory for the Collegium to justify its selection.
    • The Collegium rejected these clauses and the MoP could never be finalised.
    • The government sat on the appointments that the Collegium had recommended months ago.
    •  In April 2016, 170 proposals for appointments to the high courts were pending at that time.

    SC’s perceived reluctance  to question executive after 2017

    • Appointments and transfers ceased to be a problem because the Collegium accepted the appointments and transfers.
    • The Court considered that the Aadhaar Bill could be passed as a Money Bill, validated the Electoral Bonds Act.
    • The SC also abstained from dealing with sensitive issues like the abolition of Article 370 or the Citizenship Amendment Act.
    • This modus operandi of the court, when applied to Aadhaar, created a fait accompli.

    3 questions over the SC’s role

    • 1) The court’s reluctance to question the government on contentious issues — from J&K to misuse of sedition law or the NRC — is disturbing.
    • 2) The manner in which the judiciary has addressed allegations against itself — Kalikho Pul or Prasad Education Trust or on sexual harassment — gives a handle to those in power.
    • 3) The independence of the judiciary is inevitably affected by the acceptance of post-retirement jobs.

    Consider the question “While playing its role, judiciary faces several challenges from the other organs of the democracy. In light of this, examine the challenges judiciary in India faces from the executive.”

    Conclusion

    Supreme Court’s apparent reluctance to question government on consequential issues affects its moral authority.

  • Kesavananda Bharati: The petitioner who saved democracy

    Kesavananda Bharati (80), the sole unwitting petitioner in the historic Fundamental Rights case which prevented the nation from slipping into a totalitarian regime has passed away.

    Who was Kesavananda Bharati?

    • Kesavananda Bharati was the head seer of the Edneer Mutt in Kasaragod district of Kerala since 1961.
    • He left his signature in one of the significant rulings of the Supreme Court when he challenged the Kerala land reforms legislation in 1970.

    What was his case?

    • A 13-judge bench was set up by the Supreme Court, the biggest so far, and the case was heard over 68 working days spread over six months.
    • The Bench gave 11 separate judgments that agreed and disagreed on many issues but a majority judgment of seven judges were stitched together by then CJI SM Sikri on the eve of his retirement.
    • However, the basic structure doctrine, which was evolved in the majority judgment, was found in the conclusions of the opinion written by one judge — Justice H R Khanna.

    What was the case about?

    • The case was primarily about the extent of Parliament’s power to amend the Constitution.
    • First, the court was reviewing a 1967 decision in Golaknath v State of Punjab which, reversing earlier verdicts, had ruled that Parliament cannot amend fundamental rights.
    • Second, the court was deciding the constitutional validity of several other amendments.
    • Notably, the right to property had been removed as a fundamental right, and Parliament had also given itself the power to amend any part of the Constitution and passed a law that it cannot be reviewed by the courts.
    • The executive vs judiciary manoeuvres displayed in the amendments ended with the Kesavananda Bharati case, in which the court had to settle these issues conclusively.
    • Politically, the case represented the fight for supremacy of Parliament led by then Prime Minister Indira Gandhi.

    What did the court decide?

    • In its majority ruling, the court held that fundamental rights cannot be taken away by amending them.
    • While the court said that Parliament had vast powers to amend the Constitution, it drew the line by observing that certain parts are so inherent and intrinsic to the Constitution that even Parliament cannot touch it.
    • However, despite the ruling that Parliament cannot breach fundamental rights, the court upheld the amendment that removed the fundamental right to property.
    • The court ruled that in spirit, the amendment would not violate the “basic structure” of the Constitution.
    • Kesavananda Bharati, in fact, lost the case. But as many legal scholars point out, the government did not win the case either.

    What is the basic structure doctrine?

    • The origins of the basic structure doctrine are found in the German Constitution which, after the Nazi regime, was amended to protect some basic laws.
    • The original Weimar Constitution, which gave Parliament to amend the Constitution with a two-thirds majority, was in fact used by Hitler to his advantage to made radical changes.
    • Learning from that experience, the new German Constitution introduced substantive limits on Parliament’s powers to amend certain parts of the Constitution which it considered ‘basic law’.
    • In India, the basic structure doctrine has formed the bedrock of judicial review of all laws passed by Parliament. No law can impinge on the basic structure.
    • What the basic structure is, however, has been a continuing deliberation. While parliamentary democracy, fundamental rights, judicial review, secularism are all held by courts as the basic structure, the list is not exhaustive.

    What was the fallout of the verdict?

    • Politically, as a result of the verdict, the judiciary faced its biggest litmus test against the executive.
    • Then government did not take kindly to the majority opinion and superseded three judges —J M Shelat, A N Grover and K S Hegde — who were in line to be appointed CJI after Justice Sikri.
    • The supersession resulted in a decades-long continuing battle on the independence of the judiciary and the extent of Parliament’s power to appoint judges.
    • But the ruling has cemented the rejection of majoritarian impulses to make sweeping changes or even replace the Constitution and underlined the foundations of modern democracy.

    Significance of the Judgement

    • The judgment introduced the Basic Structure doctrine which limited Parliament’s power to make drastic amendments that may affect the core values enshrined in the Constitution like secularism and federalism.
    • The verdict upheld the power of the Supreme Court to judicially review laws of Parliament.
    • It evolved the concept of separation of powers among the three branches of governance — legislative, executive and the judiciary.
    • The Emergency was proclaimed shortly after the judgment was delivered on April 24, 1973.
    • It proved timely and thwarted many an attempt on democracy and dignity of an individual during those dark years.

  • What is the 13th Amendment to the Sri Lankan Constitution, and why is it contentious?

    After the Rajapaksas’ win in the November 2019 presidential polls and the August 2020 general election, the spotlight has fallen on two key legislations in Sri Lanka’s Constitution.

    Sri Lankan amendments in news

    • One, the 19th Amendment was passed in 2015 to curb powers of the Executive President, while strengthening Parliament and independent commissions.
    • The Rajapaksa government has already drafted and gazetted the 20th Amendment.
    • The other legislation under sharp focus is the 13th Amendment passed in 1987, which mandates a measure of power devolution to the provincial councils established to govern the island’s nine provinces.

    What is the 13th Amendment?

    • It is an outcome of the Indo-Lanka Accord of July 1987, signed by the then PM Rajiv Gandhi and President J.R. Jayawardene, in an attempt to resolve the ethnic conflict and civil war.
    • The 13th Amendment, which led to the creation of Provincial Councils, assured a power-sharing arrangement to enable all nine provinces in the country, including Sinhala majority areas, to self-govern.
    • Subjects such as education, health, agriculture, housing, land and police are devolved to the provincial administrations.
    • But because of restrictions on financial powers and overriding powers given to the President, the provincial administrations have not made much headway.
    • In particular, the provisions relating to police and land have never been implemented.

    Why is it contentious?

    • The 13th Amendment carries considerable baggage from the country’s civil war years. It was opposed vociferously by both Sinhala nationalist parties and the LTTE.
    • The opposition within Sri Lanka saw the Accord and the consequent legislation as an imprint of Indian intervention.
    • It was widely perceived as an imposition by a neighbour wielding hegemonic influence.
    • The Tamil polity, especially its dominant nationalist strain, does not find the 13th Amendment sufficient in its ambit or substance. However, some find it as an important starting point, something to build upon.

    Why is it significant?

    • Till date, the Amendment represents the only constitutional provision on the settlement of the long-pending Tamil question.
    • In addition to assuring a measure of devolution, it is considered part of the few significant gains since the 1980s, in the face of growing Sinhala-Buddhist majoritarianism.

    Its criticism

    • Critics argue that in a small country, the provinces could be effectively controlled by the Centre.
    • The opposition camp also includes those fundamentally opposed to sharing any political power with the Tamil minority.
    • All the same, all political camps that vehemently oppose the system have themselves contested in provincial council elections.
    • The councils have over time also helped national parties strengthen their grassroots presence and organisational structures.

  • International Criminal Court (ICC)

    The U.S. has announced sanctions including asset freezes and visa bans against two officials of the International Criminal Court (ICC) at The Hague.

    International Criminal Court

    • The ICC is an intergovernmental organization and international tribunal that sits in The Hague, Netherlands.
    • It is the first and only permanent international court with jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity, war crimes, and the crime of aggression.
    • It is intended to complement existing national judicial systems and it may therefore exercise its jurisdiction only when national courts are unwilling or unable to prosecute criminals.
    • The ICC lacks universal territorial jurisdiction, and may only investigate and prosecute crimes committed within member states, crimes committed by nationals of member states, or crimes in situations referred to the Court by the UNSC.

    Issues with ICC

    The ICC has faced a number of criticisms from states and society, including objections about-

    • its jurisdiction, accusations of bias, questioning of the fairness of its case-selection and trial procedures, and doubts about its effectiveness

    Implications of US sanction

    • The US action is perceived as a setback to the international rules-based multilateral order, and the decision to sanction anybody assisting the ICC will deter victims of violence in Afghanistan from speaking out.
    • The unilateral sanctions would encourage other regimes accused of war crimes to flout the ICC’s rulings.

    B2BASICS

  • Our civil services need a reboot

    The Mission Karmayogi seeks to overhaul the bureaucracy in the country. The article discusses its aims and the challenges it could face.

    Context

    • The Union cabinet’s approval of Mission Karmayogi has raised the hope of a national bureaucracy that is adequately responsive to the country’s needs.

    Need for the overhaul

    • The system’s focus needs to be role- rather than rule-specific,
    • Coordination should prevail over battles for control, and IAS officers ought to be enablers instead of red-tape wrappers. 
    • There has been a near consensus in the country that our system of policy implementation needs an overhaul.

    What  is Mission Karmayogi

    • It is an upskilling initiative for government officials that aims to fix and galvanize India’s administration.
    • As envisaged, the Karmayogi training mechanism will cover an estimated 4.6 million officials at all levels.
    • Due to the scale of the exercise elaborate multi-tier command structure is expected to be put in place for it.
    • At its apex would be a Human Resource Council, headed by the Prime Minister.
    • Human Resource Council shall approve and monitor various skill-enhancing programmes as well as review the performance of employees routinely.

    Challenges

    • Given the way our bureaucracy has operated for decades, Mission Karmayogi is likely to prove disruptive.
    • The idea of being subject to continuous evaluation by a central authority could unsettle some officers.
    • There has been some disquiet within IAS ranks over the Centre’s lateral induction of people for senior roles, perhaps the new mission will resolve such disgruntlement.

    Conclusion

    Gentralized supervision of such large numbers does not promise to be easy. Globally, centralization has been observed to militate against diversity of thought. And that’s vital to the governance of a country like India.

  • Scrutinising government’s work in limited monsoon session

    The article analyses the impact of pandemic on the functioning legislatures and issues its implications.

    Context

    • Due to coronavirus pandemic, several States have held very short sessions in which they ratified a number of ordinances and hardly questioned any executive action over the last few months.

    Role of Parliament and Court

    • The government has the mandate to take decisions and perform various public tasks.
    • Government in turn is accountable to the legislature which can question it, and, as an extreme step, even replace it.
    • The legislature is accountable to citizens through regular elections.
    • Finally, constitutional courts are expected to ensure that all actions are made within the boundaries of the Constitution and laws made by the legislature.

    Dilution of the role of Parliament in  India

    • Indian Parliament has allowed its role to be diluted over the last few decades.
    • It has not questioned and monitored the activity of the executive.
    • Comparison with British Parliament: The United Kingdom’s joint parliamentary committee on human rights examined the proposals of a contact tracing app.
    • The committee recommended that an app could be used only if there was specific primary legislation to enable it. 
    •  India, in contrast, rolled out Aarogya Setu through executive decision, and has created a grey zone on whether it is mandatory or not.
    • Parliament should recover lost ground by fulfilling its constitutionally mandated role.

    Lack of parliamentary oversight during pandemic

    • Parliament will be meeting after 175 days.
    • 175 days’ is the longest gap without intervening general elections and just short of the six-month constitutional limit.
    • During the pandemic, over 900 central and nearly 6,000 State government notifications have been issued
    • Parliamentary committees did not meet for about four months.
    • This is unlike many other countries where both the plenary and committees have adopted technology to enable members to participate from home.

    Judicial intervention in policy issues

    • The lack of parliamentary oversight has been compounded by judicial intervention in many policy issues.
    •  For example, the government’s actions related to the lockdown should have been questioned by Parliament.
    • However, this was taken to the Supreme Court, which is not equipped and mandated to balance policy options.
    • Directions of the Court have to be followed which removes flexibility needed to tackle evolving issues with implementation.
    • Consider another case, Court decided to limit the period in which telecom companies have to pay their dues to the government, and overruled a cabinet decision.
    • This is a policy matter that balances interests of telecom companies, consumers and banks.
    • This issue is best judged by the government with oversight by Parliament.
    • And court should step in if there is an illegality.

    Way forward

    • Several events have taken place over the last six months that need thorough discussion.
    • This includes ways to tackle the spread of the coronavirus, economic growth which has had a sharp fall in the first quarter of this fiscal year.
    • This has far-reaching implications for creating jobs, stability of the banking system, and government finances.
    • The government is likely to bring in a supplementary budget; indeed, a fresh look at the Union Budget may be required given the changes in basic assumptions since January.
    • The situation at the China border also needs to be discussed.

    Consider the question “Anlyse the impact of pandemic on the key organs of the democracy.”

    Conclusion

    Parliamentarians have a duty towards Indian citizens to fulfil their role in scrutinising the work of the government and guiding policy. Despite the curtailed session and the constraints due to the coronavirus, they should make the best of the limited time to do so. They need to wrest back their rightful role in our democracy.

  • Non-War Military Tactics used by China

    An annual report from the U.S. Department of Defense describes Chinese leaders’ use of tactics short of armed conflict to further the country’s objectives, citing border conflicts with India and Bhutan among the examples.

    Try this question:

    Q. What are Non-War Military Activities (NWMA)? Discuss how China is using NWMA as a tool for its overtly ambitious expansionist policy.

    Various non-war military tactics

    The report describes Non-War Military Activities (NWMA) as one of two kinds of military operations (the other is war) used by the PLA. NWMA can be conducted internationally or domestically and encompass activities in multiple domains.

    (1) Provoking armed conflict

    • China calibrates its coercive activities to fall below the threshold of provoking conflict with the United States, its allies and partners, or others in the Indo-Pacific region.
    • It can notably include operations in which the PLA uses coercive threats and/or violence below the level of armed conflict against states and other actors to safeguard its expansionism.
    • These tactics are particularly evident in China’s pursuit of its territorial and maritime claims in the South and East China Seas as well as along its border with India and Bhutan.

    (2) Neo-imperialist tools

    • China also employs non-military tools coercively, including economic tools during periods of political tensions with countries that China accuses of harming its national interests.
    • The Belt and Road Initiative is leading to a greater overseas military presence for China in the guise to protect its economic interests.

    (3) Multilateralism as a strategic messaging tool

    • The report says that China uses multilateral forums and international organisations to generate new opportunities to expand its influence, strengthen its political influence.
    • It promotes strategic messaging that portrays China as a responsible global actor, advances its development interests, and limit outside interference in and criticism of its initiatives.
    • The Brazil Russia India China South Africa (BRICS) grouping and Shanghai Cooperation Organization are among those cited as examples of this alleged phenomenon.

  • New Official Languages in J&K

    The Union Cabinet has approved a Bill to introduce Hindi, Kashmiri and Dogri as official languages in Jammu and Kashmir, in addition to Urdu and English. As of now, the official language is Urdu and Kashmiri is recognised as a regional language.

    Try this PYQ:

    Q.Consider the following languages:

    1. Gujarati
    2. Kannada
    3. Telugu

    Which of the above has/have been declared as ‘Classical Language/ Languages’ by the Government?

    (a) 1 and 2 only

    (b) 3 only

    (c) 2 and 3 only

    (d) 1, 2 and 3

    Languages in J&K

    • In the undivided Jammu and Kashmir state, various ethnicities spoke Kashmiri, Pahari, Gojri, Ladakhi, Dogri, Balti and Punjabi as their mother tongues.
    • Urdu and Hindi had become a means for inter-community communication.
    • In 1889, Maharaja Pratap Singh, the third ruler of the Hindu Dogra dynasty, replaced Persian with Urdu as the court language.
    • It was an anomaly that the three languages — Dogri, Hindi and Kashmiri — which are spoken by nearly 70 per cent of the population of Jammu and Kashmir were not approved for use in official business.

    Official languages in India

    • Article 343 of the Indian constitution stated that the official language of the Union is Hindi in Devanagari script instead of the extant English.
    • Later, a constitutional amendment, The Official Languages Act, 1963, allowed for the continuation of English alongside Hindi in the Indian government indefinitely until legislation decides to change it.
    • The form of numerals to be used for the official purposes of the Union is “the international form of Indian numerals”, which are referred to as Arabic numerals in most English-speaking countries.
    • Despite the misconceptions, Hindi is not the national language of India; the Constitution of India does not give any language the status of the national language.
    • The Eighth Schedule of the Indian Constitution lists 22 languages, which have been referred to as scheduled languages and given recognition, status and official encouragement.

    Other classical languages

    • In addition, the Government of India has awarded the distinction of classical language to Kannada, Malayalam, Odia, Sanskrit, Tamil and Telugu.
    • Classical language status is given to languages which have a rich heritage and independent nature.

  • Kalasa-Banduri Dam Project

    India is on the brink of an acute water crisis, which has, to an extent, fabricated a looming threat of trans-boundary water conflicts. The conflict on the Mandovi / Mahadayi River— flowing through Goa, Karnataka and Maharashtra— is one such example.

    Try this PYQ:

    What is common to the places known as Aliyar, Isapur and Kangsabati?

    (a) Recently discovered uranium deposits

    (b) Tropical rain forests

    (c) Underground cave systems

    (d) Water reservoirs

    Kalasa-Banduri Project

    • The project undertaken by the Karnataka government proposes to divert Mandovi river water from Kalasa and Banduri canals into the Malaprabha river in the state.
    • The project received clearance from the Centre in 2002. It aims to construct a total of 11 dams on the river Mandovi.
    • The diversion of water from Kalasa and Banduri nullahs, however, has been the point of contention between Karnataka and Goa, with the latter claiming it would strip the state of its flora and fauna.

    The conflict

    • The Mandovi originates from Karnataka’s Belgaum district.
    • The Mandovi river basin falls into the states of Goa, Karnataka and Maharashtra.
    • The river is 81 kilometres (km) in length; 35 km of which flows in Karnataka, 1 km in Maharashtra and 45 km in Goa.
    • The seeds of the conflict were sowed over 40 years ago: In 1985, Karnataka initially explored a 350 megawatt-hydro-electric project to divert 50 per cent of the Mandovi river water in Karnataka for irrigation.
    • The plan was also to allow a steady flow of water from the power project’s storage dam after using the water for irrigation purposes in Karnataka.
    • This would have served to drinking water and irrigation purposes in Goa as well.

  • Examining the legislative error of disentitling daughters

    The article highlights the importance of the latest Supreme Court Judgement making daughter coparcener in own right by birth removing the conditions laid down in the previous judgement.

    Background

    • In Vineeta Sharma v. Rakesh Sharma (2020), the Supreme Court held that a coparcener’s daughter would become a coparcener in her own right by birth.

    Amendment in 2005 and related SC judgement

    • There is a difference between rights conferred by the Hindu Succession Act of 1956 and the amendment to that act in 2005.
    • In 1956 Act, equal right of succession at par with a son was given to a daughter, but only after the demise of the father or mother.
    • The 2005 amendment gave the right to property to a daughter in a joint Hindu family during the lifetime of the father.
    • In Prakash v. Phulavati 2005, the Supreme Court decided on the prospectivity or retrospectivity of the law creating coparcenary rights in favour of daughters.
    • It created a condition that the rights under the amendment are applicable only to living daughters of living coparceners as on September 9, 2005; however, it gave no reason as to why this was chosen as a condition.
    • The status of a daughter to be subject to her father being alive is apparently a mistake.
    • The death of an individual should not determine the rights of their heirs.
    • If any right had accrued in the daughter’s favour by a legislation, the same can’t be disturbed by death of her father.

    What the SC said in latest judgement

    • In the present judgment, Vineeta Sharma v. Rakesh Sharma , the court rightly held that as laid down in Section 6 (1) (a), daughter is to be a coparcener by birth; so there is no question of being prospective or retrospective.
    • It is the physical status that matters and should not be linked to a date.
    • Even in the case of unregistered partition deeds executed before December 20, 2004, the court has opened a new window for daughters.
    • Daughters can claim a right even in an unregistered partition deed which has not been proved conclusively.

    Conclusion

    There is a need to examine all the existing laws and wherever discriminatory practices exist, they need to be amended appropriately.