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  • Terrorism and Challenges Related To It

    India to host ‘No Money for Terror’ Conference

    | Security Issues | Mains Paper 3: Money-Laundering & Its Prevention

    The Ministry of Home Affairs will be organising the Third Ministerial ‘No Money for Terror’ Conference next week where participants from around 75 countries are expected to attend.

    ‘No Money for Terror’ Conference

    • The conference that was first held In Paris in 2018, followed by Melbourne in 2019.
    • It will be held in Delhi after gap of two years due to the travel restrictions imposed due to the COVID-19 pandemic.

    Objectives of the event

    • India’s efforts: The event conveys India’s determination in its fight against terrorism as well as its support systems for achieving success against it.
    • Global cooperation: It also intends to include discussions on technical, legal, regulatory and cooperation aspects of all facets of terrorism financing.
    • Compliance mechanism: The involvement of a compliant State often exacerbates terrorism, especially its financing.

    What is Terror Financing?

    • Terrorist financing encompasses the means and methods used by terrorist organizations to finance their activities.
    • This money can come from legitimate sources, for example from profits from businesses and charitable organizations.
    • But terrorist groups can also get their financing from illegal activities such as trafficking in weapons, drugs or people, or kidnapping for ransom.
    • Nations like Pakistan has stated policy of supporting cross-border terrorism in India through global fundings.

    Why need consensus over terror-finance prevention?

    • Globally, countries have been affected by terrorism and militancy for several years and the pattern of violence differs in most theatres.
    • It is largely impacted by tumultuous geo-political environment, coupled with prolonged armed sectarian conflicts.
    • Such conflicts often lead to poor governance, political instability, economic deprivation and large ungoverned spaces.

    Other mechanisms to curb terror financing: FATF

    • FATF is an intergovernmental organization founded in 1989 on the initiative of the G7 to develop policies to combat money laundering.
    • It makes recommendations for combating financial crime, reviews members’ policies and procedures, and seeks to increase acceptance of anti-money laundering regulations across the globe.

    What hinders the global consensus?

    • No definition of terrorism: There is no universal agreement over what constitutes terrorism. This weakens efforts to formulate a concerted global response.
    • Non-enforcement: Multilateral action suffers from inadequate compliance and enforcement of existing instruments.
    • No global watchdog: Counter-terrorism regime lacks a central global body dedicated to terrorist prevention and response.

    Way forward

    • No country if safe if terrorism persists anywhere across the world.
    • The world must resolve to make the international financial system entirely hostile to terrorist financing.
    • Concerted efforts and a comprehensive approach should be adopted to counter terrorism under the UN auspices on a firm international legal basis.

     

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  • Freedom of Speech – Defamation, Sedition, etc.

    Hate speech

    | Polity | Mains Paper 2: Indian Constitution – historical underpinnings, evolution, features, amendments, significant provisions and basic structure

    Former Supreme Court Judge Rohinton Fali Nariman has said civil suits against hate speech leading to the award of punitive damages should be taken up by courts.

    What did the ex-Judge say?

    • He described the Fundamental Duty of fraternity (Article 51A(5)) as the only Constitutional method of assuring the dignity of every citizen and the unity and integrity of the nation.
    • The cardinal principle of fraternity prescribed that every citizen honoured the other citizen in the spirit of brotherhood, transcending religious, sectarian, and other tendencies.
    • He opined that civil suits like defamation being dealt with fines would be more efficient in curbing hate speeches against individuals.

    Article 51A(5): Promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities and to renounce practices derogatory to the dignity of women.

    What is ‘Hate Speech?

    • There is no specific legal definition of ‘hate speech’.
    • The Law Commission of India, in its 267th Report, says: “Hate speech generally is an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like …
    • Thus, hate speech is any word written or spoken, signs, visible representations within the hearing or sight of a person with the intention to cause fear or alarm, or incitement to violence.”
    • In general, hate speech is considered a limitation on free speech that seeks to prevent or bar speech that exposes a person or a group or section of society to hate, violence, ridicule or indignity.

    How is it treated in Indian law?

    • Provisions in law criminalize speeches, writings, actions, signs and representations that foment violence and spread disharmony between communities and groups and these are understood to refer to ‘hate speech’.
    • Sections 153A and 505 of the Indian Penal Code are generally taken to be the main penal provisions that deal with inflammatory speeches and expressions that seek to punish ‘hate speech’.

    [I] Section 153A:

    • Promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony’, is an offence punishable with three years’ imprisonment.

    [II] Section 505:

    • 505(1): Statements conducing to public mischief– The statement, publication, report or rumour that is penalized under Section 505(1) should be one that promotes mutiny by the armed forces, or causes such fear or alarm that people are induced to commit an offence against the state or public tranquillity. This attracts a jail term of up to three years.
    • 505(2): It is an offence to make statements creating or promoting enmity, hatred or ill-will between classes.
    • 505(3): Same offence will attract up to a five-year jail term if it takes place in a place of worship, or in any assembly engaged in religious worship or religious ceremonies.

    Why curb hate speeches?

    • Creates social divide: Individuals believe in stereotypes that are ingrained in their minds and these stereotypes lead them to believe that a class or group of persons are inferior to them and as such cannot have the same rights as them.
    • Threat to peaceful co-existence: The stubbornness to stick to a particular ideology without caring for the right to co-exist peacefully adds further fuel to the fire of hate speech.

    Issues in regulating hate speech

    • Powers to State: Almost every regulation of speech, no matter how well-intentioned, increases the power of the state.
    • Hate speeches are Political: The issue is fundamentally political and we should not pretend that fine legal distinctions will solve the issue.
    • Legal complications: An over-reliance on legal instruments to solve fundamental social and political problems often backfires.

    Way forward

    • Subjects like hate speeches become a complex issue to deal with, in a country like India which is very diverse, as it was very difficult to differentiate between free and hate speech.
    • There are many factors that should be considered while restraining speeches like strong opinions, offensive comments towards certain communities, the effect on values like dignity, liberty and equality.
    • We all have to work together and communicate efficiently for our country to be a healthy place to live in.

     

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  • Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

    Jharkhand wants new quota Bill placed in Ninth Schedule

    | Polity | Mains Paper 2: Indian Constitution – historical underpinnings, evolution, features, amendments, significant provisions and basic structure

    The Jharkhand assembly on Friday cleared two bills, one fixing land records of 1932 as the basis for a domicile in the state and another to increase reservation in state government jobs across categories to 77%

    What is the news?

    • Though both these bills were cleared unanimously, they would come into effect only after the Centre includes them in the Ninth Schedule of the Constitution.
    • A law in the Ninth Schedule is shielded from judicial review.

    Why the need to include in Ninth Schedule?

    • The 77 per cent reservation breaches the 50 per cent ceiling set by the Supreme Court in the landmark 1992 Indra Sawhney v Union of India verdict.
    • However, placing legislation in the Ninth Schedule shields it from judicial scrutiny.

    What is the Ninth Schedule?

    • The Ninth Schedule contains a list of central and state laws which cannot be challenged in courts.
    • Most of the laws protected under the Schedule concern agriculture/land issues.
    • The Schedule became a part of the Constitution in 1951, when the document was amended for the first time.
    • It was created by the new Article 31B, which along with 31A was brought in by the government to protect laws related to agrarian reform and for abolishing the Zamindari system.
    • While A. 31A extends protection to ‘classes’ of laws, A. 31B shields specific laws or enactments.

    How many laws are there in ninth schedule?

    • Currently, 284 such laws are shielded from judicial review.
    • The First Amendment added 13 laws to the Schedule. Subsequent amendments in 1955, 1964, 1971, 1974, 1975, 1976, 1984, 1990, 1994, and 1999 have taken the number of protected laws to 284.

    Previous instances — Tamil Nadu’s case

    • A Tamil Nadu Law of 1993, reserves 69 per cent of the seats in colleges and jobs in the state government.
    • When it ran into legal obstacles in the 1990s after the SC verdict, the then CM led a delegation to New Delhi to meet the then PM PV Narasimha Rao.
    • The reservation provision was then included in the Ninth Schedule.

    Nature of exemption from Judicial Review

    • While the Ninth Schedule provides the law with a “safe harbour” from judicial review, the protection is not blanket.
    • The Tamil Nadu law was challenged in 2007 in the I R Coelho v State of Tamil Nadu
    • The Supreme Court ruled in a unanimous nine-judge verdict that while laws placed under Ninth Schedule cannot be challenged on the grounds of violation of fundamental rights.
    • They can be challenged on the ground of violating the basic structure of the Constitution, said the apex court.

    Verdict of the IR Coelho Case

    • The IR Coelho verdict said, “A law that abrogates or abridges rights guaranteed by Part III of the Constitution may violate the basic structure doctrine or it may not.
    • If former is the consequence of law, whether by amendment of any Article of Part III or by an insertion in the Ninth Schedule, such law will have to be invalidated in exercise of judicial review power of the Court.”

     

    What is the 1973 deadline about?

    • The court clarified that the laws cannot escape the “basic structure” test if inserted into the Ninth Schedule after 1973.
    • As it was in 1973 that the basic structure test was evolved in the Kesavananda Bharati case as the ultimate test to examine the constitutional validity of laws.

     

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  • Primary and Secondary Education – RTE, Education Policy, SEQI, RMSA, Committee Reports, etc.

    Population criteria for new Eklavya schools ‘impractical’: Parliamentary Panel

    Prelims Only | Governance | Mains Paper 2: Health & Education

    A Parliamentary panel has refuted that 20,000 ST people, who make up at least 50% of the total population criteria is “impractical” to build new Eklavya Model Residential Schools (EMRS).

    What are Eklavya Schools?

    • EMRS started in the year 1997-98 to impart quality education to Scheduled Tribes (ST) children in remote areas in order.
    • It aims to enable them to avail of opportunities in high and professional educational courses and get employment in various sectors.
    • The schools focus not only on academic education but on the all-round development of the students.
    • Each school has a capacity of 480 students, catering to students from Class VI to XII.
    • Hitherto, grants were given for construction of schools and recurring expenses to the State Governments under Grants under Article 275 (1) of the Constitution.
    • Eklavya schools are on par with Navodaya Vidyalaya and have special facilities for preserving local art and culture besides providing training in sports and skill development.

    Features of Eklavya Schools

    • Admission to these schools will be through selection/competition with suitable provision for preference to children belonging to Primitive Tribal Groups, first-generation students, etc.
    • Sufficient land would be given by the State Government for the school, playgrounds, hostels, residential quarters, etc., free of cost.
    • The number of seats for boys and girls will be equal.
    • In these schools, education will be entirely free.

    What is the population-based criteria?

    • The Tribal Affairs Ministry plans to build EMRS on 15 acres of land in all sub-districts which have ST communities of more than 20,000 people, who make up at least 50% of their total population.
    • Wherever density of ST population is higher in identified Sub-Districts (90% or more), it is proposed to set up Eklavya Model Day Boarding School (EMDBS) on an experimental basis.

    Issues with this criteria

    • There are difficulties in identifying and acquiring lands in several tribal districts.
    • Especially in forested or hilly areas, a contiguous 15-acre plot is hard to find.
    • This criterion would also deprive scattered ST populations of the benefit of the Eklavya schools.
    • For most of the places for EMRSs, there is no land available inside the village or the block.

     

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  • Terrorism and Challenges Related To It

    Places in news: Sahel Region

    National Parks/WS | Enviro & Biodiversity | Mains Paper 1: Geographical Features & Their Location

    sahel

    French President Emmanuel Macron announced the end of the decade-long Operation Barkhane in Africa’s Sahel Region.

    Note the nations falling in Sahel Region.

    Sahel Region

    • The Sahel is the ecoclimatic and biogeographic realm of transition in Africa between the Sahara to the north and the Sudanian savanna to the south.
    • Having a semi-arid climate, it stretches across the south-central latitudes of Northern Africa between the Atlantic Ocean and the Red Sea.
    • The name is derived from the Arabic term for “coast, shore”; this is explained as being used in a figurative sense in reference to the southern edge of the vast Sahara.
    • The Sahel part includes from west to east parts of northern Senegal, southern Mauritania, central Mali, northern Burkina Faso, the extreme south of Algeria, Niger, the extreme north of Nigeria, the extreme north of Cameroon and the Central African Republic, central Chad, central and southern Sudan, the extreme north of South Sudan, Eritrea and the extreme north of Ethiopia.

    What is Operation Barkhane?

    • France began its military operations in Sahel in January 2013.
    • Titled Operation Serval, it was limited to targeting Islamic extremists linked to al-Qaeda who took control of northern Mali.
    • However, in 2014, the mission was scaled up, renamed Operation Barkhane and was aimed at counter-terrorism.
    • The objective was to assist local armed forces to prevent the resurgence of non-state armed groups across the Sahel region.
    • Around 4,500 French personnel were deployed with the local joint counter-terrorism force.

     

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  • Higher Education – RUSA, NIRF, HEFA, etc.

    Giving More Autonomy to Universities

    op-ed snap | Governance | Mains Paper 2: Health & Education

    Universities

    Context

    • It is sad but not surprising that none of India’s institutions of higher education appears in the list of top 100 universities of the world.

    Background: Ranking of the of the Indian Institutes

    • According to the QS World ranking: The 2023 edition of the Quacquarelli Symonds (QS) world university ranking reckons that three of India’s higher educational institutions amongst the top 200 of the World. Another three are counted among the top 300 whereas two more in the top 400.
    • As per the Times Higher education Ranking: The Times Higher Education (THE) ranking places only one Indian institution among the top 400 of the worlds.
    • Academic rankings: Rankings are the same with the Academic Ranking of World Universities (ARWU). Barring one of the most eminent public-funded deemed universities of the country, all the rest are Institutions of National Importance (INIs) the Indian Institutes of Technology (IITs), to be specific.

    Why other universities reflect poor performance than IITs and INIs?

    • IITs have more autonomy: IITs are not only better funded but also generally self-governed, enjoying a greater degree of autonomy as they fall outside the regulatory purview of the University Grants Commission (UGC) and the All-India Council for Technical Education (AICTE).
    • Strict UGC regulations: Funded through the University Grants Commission (UGC), universities are all subject to a very strict regulatory regime.
    • Micro-management of universities functioning: Abiding by UGC regulations and AICTE guidelines, encompasses almost all aspects of their functioning be it faculty recruitment, student admission and the award of degrees. In many cases, they are micro-managed by the regulatory authorities.
    • Very less autonomy to UGC affiliated Universities: Most of the universities have become so comfortable with the practice that they rarely assert their autonomy.
    • Ranking on basis of compliance: Central universities in the country are also ranked on the basis of their ‘obedience’ to regulatory compliances. Even in the academic domain, many of them are comfortable in publicly stating that they have adopted the model curricula, pedagogy and syllabi prescribed by the regulatory bodies, even though the same may have been only indicative.

    Universities

    What are the good practices of best universities around the world?

    • Importance to autonomy: The best universities in the world are continuously sensitized about the importance of their autonomy and are trained and enabled to make their own decisions.
    • University autonomy tool for comparison: The European University Association (EUA), for example, prescribes a ‘university autonomy tool’ that lets each member university compare its level of autonomy vis-à-vis the other European higher education systems across all member countries.
    • Four specific autonomies for ranking: By focusing on four autonomy areas (organizational, financial, staffing, and academic) the EUA computes composite scores and ranks all the countries in Europe.

    Universities

    What are the efforts taken to improve the universities performance?

    • National education policy 2020: A large number of commissions and committees, including the national policies on education (including the National Education Policy 2020), have highlighted the need for higher education autonomy. The new education policy seeks to completely overhaul the higher education system, and to attain this objective, repeatedly emphasizes the need for institutional autonomy.
    • Academic and administrative autonomy: The NEP regards academic and administrative autonomy essential for making higher education multi-disciplinary, and that teacher and institutional autonomy are a sine qua non in promoting creativity and innovation.
    • Independent board of management: The policy considers a lack of autonomy as one of the major problems of higher education and promises to ensure faculty and institutional autonomy through a highly independent and empowered board of management which would be vested with academic and administrative autonomy.
    • Light but tight regulation: It argues for a ‘light but tight’ regulatory framework and insists that the new regulatory regime would foster a culture of empowerment. Further, it goes on to say that by relying on a robust system of accreditation, all higher education institutions would gradually gain full academic and administrative autonomy.

    Conclusion

    • Universities in India have been losing their autonomy. In the two years since the approval, announcement, and gradual implementation of the NEP, universities in India today are far less autonomous than earlier. If India wants to be leader in knowledge and patent economy then its universities must be freed from clutches of unreasonable regulations.

    Mains Question

    Q. Why Indian universities does poor on world ranking of universities? Autonomy of university is keystone to improve the performance of universities. Examine.

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  • Defence Sector – DPP, Missions, Schemes, Security Forces, etc.

    Making the Indigenous Defence Industry Self-Reliant and Globally Competitive

    op-ed snap | Economics | Mains Paper 3: Indigenization Of Technology

    Defence

    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 and the arduous path ahead.

    What is the present status of defence supplies in India?

    • High dependency on foreign supply: Even as India aspires to become a $5-trillion economy, it is evident that it faces many national security inadequacies. The high dependency index on foreign suppliers (traditionally the former USSR now Russia) for major military inventory items is stark.
    • Risk of National vulnerability: This dependency induces a macro national vulnerability and dilutes India’s quest for meaningful and credible strategic autonomy.
    • Undermining national interest: Furthermore, the current gaps in combat capacity expose the chinks in the Indian ability to safeguard core national security interests. The Galwan setback apropos China is illustrative.

    Defence

    Do you know the following examples of Indigenous defence production?

    • 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 bulit.
    • LCH Prachand: The induction of the made in India Prachand LCH (light combat helicopter) is significant leap.
    • Kalashnikov-type light weapon: The conclusion of a deal with Russia to manufacture a Kalashnikov-type light weapon/small arms in India.
    • 155mm artillery Gun: The 155-mm artillery guns being designed and manufactured in the country.

    Current scenario of India’s Defence export

    • Rising defence export: India’s defence exports have grown eight times in the last five years.
    • 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).
    • 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.

    Why our defence industry is not competitive at global stage?

    • Import of critical components: India does not yet have the domestic competence to fully design and manufacture any significant combat weapon/platform and is dependent on the foreign supplier for the critical components that lie at the core of the combat index of the equipment in question.
    • Partial methods of indigenous manufacturing: While it is commendable that India is now going to manufacture the C295 transport aircraft in a collaboration with AirBus, France, the reality is that the engine, avionics, landing gear, etc, will come from abroad and the integration will be done by the Indian entity.
    • Soft defence export: While India now claims that it will soon become a major arms exporter, the composition of such inventory leans towards the “soft” category (clothing, helmets, surveillance equipment).
    • No major defence manufacturing hub: India missed the industrial design and manufacturing bus, a national competence demonstrated by nations like South Korea and China, over the last five decades. Technological advances have made the design and manufacture of the semiconductor chip the new currency of national prosperity and military power.

    Ways to make India’s defence industry globally competitive?

    • 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).

    defence

    Read this news Defence- Expo 2022

    • India’s flagship exhibition on land, naval and homeland security systems.
    • Defence-Expo 2022 was the 12th edition, held in Gandhinagar, Gujrat
    • Largest participation with 75 countries so far.
    • A milestone under Atmanirbhar Bharat policy.

    Conclusion

    • The push to achieve self-reliance in defence is commendable. India must step up R&D to achieve competence in design, manufacture of combat weapons/platforms. Meaningful indigenisation and credible “atma nirbharta” calls for sustained funding support, fortitude and an ecosystem that will nurture this effort.

    Mains Question

    Q. Discuss the current state of indigenous defence production in India? Why Indian defence industry is not Globally competitive?

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  • Agricultural Sector and Marketing Reforms – eNAM, Model APMC Act, Eco Survey Reco, etc.

    In news: Kisan Rail Project

    | Agriculture | Mains Paper 3: Infrastructure: Energy, Ports, Roads, Airports, Railways Etc.

    kisan rail

    Punjab has assured Kerala Government to provide paddy straw for usage as fodder for livestock using the Kisan Rail Project.

    Why such move?

    • Kerala, being a land-stressed coastal state, does not generate enough roughage that can be used as fodder for cattle.
    • It ranks second in milk production after Punjab.
    • The move will help Punjab to deal with the excessive paddy straw which contributes to stubble burning.

    About Kisan Rail Project

    • In the Union Budget 2020-21 an announcement was made by the Union Finance Minister regarding the launch of Kisan Rail.
    • The idea behind running Kisan Rail services is to move perishables including fruits, vegetables, meat, poultry, fishery and dairy products from production or surplus regions to consumption or deficient regions.
    • The speedy rail movement would thus ensure minimum damage during transit.

    How can farmers transport their produce?

    • The farmers have to approach the Chief Parcel Supervisor of the Railway Stations from where the Kisan Rail service is scheduled to originate or to have enroute stoppage, along with their consignment.
    • Due care is taken to ensure that the packing condition is not faulty.
    • The consignment is weighed and charges are levied as per the prescribed parcel rates (P-scale).

    Salient features

    • 50 percent subsidy is given in freight for transportation of fruits and vegetables.
    • The subsidy is being borne by the Ministry of Food Processing Industries under their Operation Greens – TOP to Total scheme.
    • There is no minimum limit on quantity that can be booked, enabling small famers to reach bigger and distant markets.
    • Kisan Rails are based on the concept of multi commodity, multi consignor, multi consignee and multi stoppages – to help small farmers with lesser produce to transport their consignment without any middleman.

    Need for such scheme

    • Farmers, especially small and marginal farmers, often find it difficult to sell their produce in markets beyond a certain distance.
    • This is primarily due to factors such as non-availability of affordable transport, delay in transit resulting in damage/decay to produce, and unwillingness of road transporters to carry small sized consignments.

    Benefits provided

    • Access to markets: Vast network of Indian Railways enables farmers from remote villages to connect to the mainstream market and sell their agricultural produce.
    • Helps prevent food wastage: It saves times and encourages farmers to transport their perishables to greater distances and bigger markets.
    • Getting better deal for farmers: Kisan Rail is a factor enabling improvement in terms of trade for farmers and the real returns received by farmers for their produce.
    • Doubling farmers’ income: Access to such markets will enable farmers to sell their produce at a better price, which will go a long way in fulfilling Government’s vision of ‘doubling farmers’ income.’

     

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  • Judicial Appointments Conundrum Post-NJAC Verdict

    Back in news: Supreme Court Collegium

    | Polity | Mains Paper 2: Executive & Judiciary

    The Supreme Court has lambasted the Centre for withholding names recommended or reiterated by the collegium for judicial appointments, even saying that the government is using silence and inaction as “some sort of a device” to force worthy candidates and prominent lawyers to withdraw their consent.

    Why in news?

    • The Union Law Minister since few months has launched a relentless attack on the collegium system for lack of transparency.

    What exactly is the Collegium System?

    • The collegium system was born out of years of friction between the judiciary and the executive.
    • The hostility was further accentuated by instances of court-packing (the practice of changing the composition of judges in a court), mass transfer of HC judges and two supersessions to the office of the CJI in the 1970s.
    • The Three Judges cases saw the evolution of the collegium system.

    Evolution: The Judges Cases

    • First Judges Case (1981) ruled that the “consultation” with the CJI in the matter of appointments must be full and effective.
    • However, it rejected the idea that the CJI’s opinion, albeit carrying great weight, should have primacy.
    • Second Judges Case (1993) introduced the Collegium system, holding that “consultation” really meant “concurrence”.
    • It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the Supreme Court.
    • Third Judges Case (1998): On a Presidential Reference for its opinion, the Supreme Court, in the Third Judges Case (1998) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

    How does the collegium system work?

    • The collegium of the CJI and four senior-most judges of the Supreme Court make recommendations for appointments to the apex court and High Courts.
    • The collegium can veto the government if the names are sent back by the latter for reconsideration.
    • The basic tenet behind the collegium system is that the judiciary should have primacy over the government in matters of appointments and transfers in order to remain independent.

    The procedure followed by the Collegium

    Appointment of CJI

    • The President of India appoints the CJI and the other SC judges.
    • As far as the CJI is concerned, the outgoing CJI recommends his successor.
    • In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
    • The Union Law Minister forwards the recommendation to the PM who, in turn, advises the President.

    Other SC Judges

    • For other judges of the top court, the proposal is initiated by the CJI.
    • The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
    • The consultees must record their opinions in writing and it should form part of the file.
    • The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.

    For High Courts

    • The CJs of High Courts are appointed as per the policy of having Chief Justices from outside the respective States. The Collegium takes the call on the elevation.
    • High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
    • The proposal, however, is initiated by the Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
    • The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.

    Does the Collegium recommend transfers too?

    • Yes, the Collegium also recommends the transfer of Chief Justices and other judges.
    • Article 222 of the Constitution provides for the transfer of a judge from one High Court to another.
    • When a CJ is transferred, a replacement must also be simultaneously found for the High Court concerned. There can be an acting CJ in a High Court for not more than a month.
    • In matters of transfers, the opinion of the CJI “is determinative”, and the consent of the judge concerned is not required.
    • However, the CJI should take into account the views of the CJ of the High Court concerned and the views of one or more SC judges who are in a position to do so.
    • All transfers must be made in the public interest, that is, “for the betterment of the administration of justice”.

    Loopholes in the Collegium system

    • Lack of Transparency: Opaqueness and a lack of transparency, and the scope for nepotism are cited often.
    • Judges appointing Judge: The attempt made to replace it with a ‘National Judicial Appointments Commission was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.
    • Criteria: Some do not believe in full disclosure of reasons for transfers, as it may make lawyers in the destination court chary of the transferred judge. It has even been accused of nepotism.

    Way ahead

    • In respect of appointments, there has been an acknowledgment that the “zone of consideration” must be expanded to avoid criticism that many appointees hail from families of retired judges.
    • The status of a proposed new memorandum of procedure, to infuse greater accountability, is also unclear.
    • Even the majority of opinions admitted the need for transparency, now Collegiums’ resolutions are now posted online, but reasons are not given.

     

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  • Judicial Pendency

    SC orders release of all convicts in Ex-PM Assassin Case

    | Polity | Mains Paper 2: Executive & Judiciary

    sc

    The Supreme Court has ordered for the immediate release of six convicts who are serving life sentence for more than three decades in the Rajiv Gandhi assassination case.

    What is the news?

    • The Bench referred to the case of their former co-convict G. Perarivalan, who was granted premature release by the apex court this year in exercise of its extraordinary powers under Article 142 of the Constitution.

    What does Pardon mean?

    • A pardon is a government/executive decision to allow a person to be absolved of guilt for an alleged crime or other legal offense as if the act never occurred.

    Why need a Pardon?

    • Pardons can be granted when individuals are deemed to have demonstrated that they have “paid their debt to society”, or are otherwise considered to be deserving of them.
    • Pardons are sometimes offered to persons who were either wrongfully convicted or who claim that they were wrongfully convicted.
    • Pardons are sometimes seen as a mechanism for combating corruption, allowing a particular authority to circumvent a flawed judicial process to free someone that is seen as wrongly convicted.

    What does Article 161 say?

    • Article 161 of the Constitution provides the Governor with the power to remit or commute the sentence of any prisoner.
    • The Governor’s decision will be subject to judicial review by the constitutional courts.
    • The advice of the State Cabinet is binding on the Governor in matters relating to commutation/remission of sentences under Article 161.

    Why did the Supreme Court intervene here?

    • In its judgment in the Perarivalan case in May, the apex court had held that the State Cabinet’s advice was binding on the Governor under Article 161 (Governor’s power of clemency) of the Constitution.
    • The Governor had no business forwarding the pardon pleas to the President after sitting on it for years together.

    Back2Basics: Article 142

    • Article 142 provides discretionary power to the Supreme Court.
    • It states that the court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.
    • Such decree shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament.
    • It is usually used in cases involving human rights and environmental protection.

     

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