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Judicial Reforms

Judiciary and challenges ahead

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not much

Mains level : Paper 2-Judiciary and relations with executive

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-à-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.

Judicial Reforms

Kesavananda Bharati: The petitioner who saved democracy

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Features of Basic structure doctrine

Mains level : Evolution of the basic structure doctrine

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.

Sri Lanka’s Constitution – Strides in the Right Direction

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

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not Much

Mains level : Sri Lankan constitutional issues

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)

Note4Students

From UPSC perspective, the following things are important :

Prelims level : International Criminal Court

Mains level : Not Much

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

Indian Army Updates

Assam Rifles and the tussle between MoD and MHA

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Assam Rifles

Mains level : India's paramilitary forces

The Delhi High Court has granted 12 weeks to the Union government to decide on whether to scrap or retain the dual control structure for Assam Rifles. Presently it comes under both the Ministry of Home Affairs (MHA) and the Ministry of Defence (MoD).

What is the Assam Rifles?

  • Assam Rifles is one of the six central armed police forces (CAPFs) under the administrative control of Ministry of Home Affairs (MHA).
  • The other forces being the Central Reserve Police Force (CRPF), the Border Security Force (BSF), the Indo-Tibetan Border Police (ITBP), the Central Industrial Security Force (CISF) and the Sashastra Seema Bal (SSB).
  • It is tasked with the maintenance of law and order in the North East along with the Indian Army and also guards the Indo-Myanmar border in the region.
  • It has a sanctioned strength of over 63,000 personnel and has 46 battalions apart from administrative and training staff.

Making of the regiment

  • Assam Rifles is the oldest paramilitary force raised way back in 1835 in British India with just 750 men.
  • Since then it has gone on to fight in two World Wars, the Sino-Indian War of 1962 and used as an anti-insurgency force against militant groups in the North East.
  • Raised as a militia to protect British tea estates and its settlements from the raids of the NE tribes, the force was first known as Cachar Levy.
  • It was reorganized later as Assam Frontier Force as its role was expanded to conduct punitive operations beyond Assam borders.

How is it unique?

  • It is the only paramilitary force with a dual control structure. While the administrative control of the force is with the MHA, its operational control is with the Indian Army, which is under the MoD.
  • This means that salaries and infrastructure for the force is provided by the MHA, but the deployment, posting, transfer and deputation of the personnel is decided by the Army.
  • All its senior ranks, from DG to IG and sector headquarters, are manned by officers from the Army. The force is commanded by Lt. General from the Indian Army.
  • The force is the only central paramilitary force (CPMF) in a real sense as its operational duties and regimentation are on the lines of the Indian Army.
  • However, its recruitment, perks, promotion of its personnel and retirement policies are governed according to the rules framed by the MHA for CAPFs.

Why do both MHA and MoD want full control?

  • MHA has argued that all the border guarding forces are under the operational control of the ministry and so Assam Rifles coming under MHA will give border guarding a comprehensive and integrated approach.
  • MHA sources also say that Assam Rifles continues to function on the pattern set during the 1960s and the ministry would want to make guarding of the Indo-Myanmar border on the lines of other CAPFs.
  • The Army, for its part, has been arguing that there is no need to fix what isn’t broken.
  • Sources say the Army is of the opinion that the Assam Rifles has worked well in coordination with the Army and frees up the armed forces from many of its responsibilities to focus on its core strengths.
  • It has argued that giving the control of the force to MHA or merging it with any other CAPF will confuse the force and jeopardize national security.

Industrial Sector Updates – Industrial Policy, Ease of Doing Business, etc.

State Reforms Action Plan Rankings 2019

Note4Students

From UPSC perspective, the following things are important :

Prelims level : State Reforms Action Plan Rankings 2019

Mains level : Ease of Doing Business

Andhra Pradesh has bagged the first rank among all the states in the country in the state business reforms action plan-2019 (BRAP-2019), representing ease of doing business for Atmanirbhar Bharat.

About the Ranking

  • It is the annual ease of doing business index of states and UTs of India based on the completion percentage scores of action items points of annual Business Reforms Action Plan (BRAP) under the Make in India initiative.
  • This ranking is based on the implementation of the business reform action plan.
  • Some of the key focus areas are access to information and technology, the setting up of a single-window system, construction permit enablers and land administration, according to DPIIT.
  • It based on the progress of states in completing annual reform action plan covering 8 key areas.

The top ten states under the State Reform Action Plan 2019 are:

  1. Andhra Pradesh
  2. Uttar Pradesh
  3. Telangana
  4. Madhya Pradesh
  5. Jharkhand
  6. Chhattisgarh
  7. Himachal Pradesh
  8. Rajasthan
  9. West Bengal
  10. Gujarat

Tax Reforms

Reforming tax system

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not much

Mains level : Paper 3- Tax reforms

The article discusses two recent measures announced by the government to bring in the transparency in the tax system.

Issue of lower tax collection and way out

  • An economic contraction this year will severely impact tax collections.
  • Changing tax rates or the tax base in response is difficult and a hurried approach can have wider consequences.
  • So, the only tool available is to urge voluntary compliance.
  • Compliance is achieved through a fine balance between enforcement and encouragement.
  • Despite enforcement-driven measures in the past the taxpaying population has remained at only 6 per cent.
  • Thus, the only way to boost collections is to build trust between the administration and the taxpayer.

Relation between complexity of system and compliance

  • A taxpayer has to interact with the tax system at numerous instances.
  • While interacting, if the taxpayer perceives the system to be complex, such perception affects compliance.
  • Perceived complexity can discourage individuals from filing returns.
  • This could reflect simply in the difference between the number of taxpayers and the returns filed: which is around 20 million.
  • Such behaviour is bound to impact tax collection.

Recent government measures to bring transparency

1) New taxpayer’s charter with some new features

  • The charter is a document that lists a taxpayer’s rights and obligations.
  • A taxpayer’s charter is often perceived as a means to build taxpayer’s trust.
  • The rights and obligations mentioned in India’s new charter are in line with global practices.
  • There are 3 interesting additions in the new charter: 1) commitment to reducing compliance costs 2) holding its authorities accountable 3) publishing a periodic report of service standards.
  • A tax ombudsman can ensure that some of these standards are met, however, in 2019, the cabinet approved the abolition of the quasi-judicial post.

2) Faceless assessment

  • This relates to the frequent complaint of taxpayers about corruption and delay.
  • To end personal interface, e-assessment was introduced in 2019.
  • Developing this idea further, faceless assessment now seeks to further automate the case selection and the distribution function of the assessing officer.
  • The intent is to divest and distribute the functions of a single assessing officer so that assessment is carried out in a fair manner.

Consider the question “What are the factors responsible for low tax compliance in India? What are the steps taken by the government to increase compliance?

Conclusion

If the commitment to a fair and impartial system and a time-bound resolution of matters is to be met, the new processes, with reviews and anonymity, must ensure efficiency in case selection and consistency in assessment.