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Subject: Polity

Overseas Citizens of India (OCI) and their concerns
Context
- Government will observe the 17th Pravasi Bhartiya Divas (PBD) in Indore, Madhya Pradesh. The day is meant to celebrate the contributions of India’s diaspora. The theme for this year’s event is, “Diaspora: Reliable Partners for India’s Progress in Amrit Kaal”.
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Pravasi Bhartiya Diwas
- Pravasi Bhartiya Divas (Non-Resident Indian Day) is a celebratory day observed (starting in 2003) on 9 January by the Republic of India to mark the contribution of the overseas Indian community towards the development of India. The day commemorates the return of Mahatma Gandhi from South Africa to Mumbai on 9 January 1915.
Who are the Overseas Citizens of India (OCI)?
- OCI are not citizens: Overseas Citizenship of India is a form of permanent residency available to people of Indian origin and their spouses which allows them to live and work in India indefinitely. Despite its name, OCI status is not citizenship and does not grant the right to vote in Indian elections or hold public office.
- It can be revoked: The Indian government can revoke OCI status in a wide variety of circumstances. As of 2020, there are 6 million holders of OCI cards among the Indian Overseas diaspora.
What are the concerns of OCI/NRI persons?
- Scheme for dual citizenship: Originally conceptualised in 2003 by the then NDA government led by Prime Minister Atal Bihari Vajpayee, the OCI scheme was envisaged as a dual-citizenship project.
- All rights of citizen of India: OCIs would enjoy all rights as normal citizens except the right to hold public office and cast their vote.
- Citizenship to OCI from certain countries: The Vajpayee government introduced the Citizenship (Amendment) Bill, 2003 in Parliament. The statement accompanying the Bill, that was passed by Parliament in December that year clearly stated that it was meant to provide dual citizenship to persons of Indian origin from certain countries.
- Present government Downgraded OCI status: Nearly two decades later, the Union Home Ministry is downgrading the OCI scheme from dual-citizenship to virtually a residency permit scheme. The ministry’s statements in circulars and courts declaring that OCIs are not Indian citizens and that they would not enjoy any fundamental rights under the Indian Constitution have been particularly disheartening.
What are the ambiguities about the downgrading of OCI status?
- Confusion over rights: There is considerable legal confusion about the status of OCIs. Can they practice certain professions like journalism without prior government permission? Do contributions by OCIs residing in India to charities/schools violate the country’s laws?
- Problem in donation: During the pandemic, resident OCIs had to ensure their donations went only to NGOs that had FCRA clearance. As a result, many local level initiatives could not be supported with their monetary contributions.
- Confusion over the status: Very often OCIs have been confronted with remarks, including at courts, that we are foreigners in India. Unlike several other countries, the Indian Constitution does not have exhaustive provisions on citizenship.
Making a case of citizenship for OCI
- Vasudaiva kutumbakam philosophy: The Government of India announced that India’s Presidency of G20 will be grounded in the principles of “Vasudaiva kutumbakam” wherein the entire world is considered as one family.
- Push to Mobility for diaspora: Hopefully such political homilies are reflected in the way the government thinks about the idea of citizenship in relation to the increasingly mobile Indian diaspora.
- Injustice to people born in India: Clearly, an elemental question is whether it is proper to cancel the citizenship of people born in the country, and who have continued engagement with it, merely because they have acquired foreign citizenship. No other progressive democracy does that today, even though most countries had similar laws when India enacted the Citizenship Act, 1955.
- Removing the outdated laws: In a recent address, Prime Minister Narendra Modi advised Chief Secretaries of states and Union Territories to focus on quality of service over outdated laws and rules, to achieve the goal of making India a developed country by 2047. Realising the essence of the Citizenship (Amendment) Act 2003 is in the spirit of the PM’s directive.
Conclusion
- OCI contribute immensely to India at home and abroad. But granting a citizenship to Overseas citizens of India will create structural asymmetry in economic, social, political life of ordinary people of India. It will open the flood gates for demand for dual citizenships from other sections of diaspora.
Mains Question

Q. What are problems of Overseas Citizens of India? Discuss why OCI deserve the better status in India?

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January 9, 2023
Government Litigation
Context
- Much has been said about why we have a staggeringly high number of cases that constitute pendency or cases that are undecided in the court system. Pendency or cases pending in courts have been a source of agony for litigants, lawyers and judges alike. In 2018, the Law Commission of India, in its 230th report, noted that the government is the biggest litigant in the system.
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Ratio: Number of Judges serving the population
- India has 21 judges for every million people: India has a terribly low number of judges serving a very large population to be more precise, India has about 21 judges for every million people, as the government recently informed the Rajya Sabha.
- Comparatively in China: China has about 159 judges for every million people.
What is cause of concern for the government?
- Pendency impacts governance and weakens law and order: It is a cause of concern for the government since an arduous dispute resolution system adversely impacts governance and weakens law and order in any country.
- Government is the largest litigant: Our government has been seized by the burdens of the justice system for long, and is acutely aware of its own role in contributing to the number of cases that enter the courts and remain to be decided.
Efforts taken by the Government to reduce its litigation
- Government is well aware: The government has been cognisant of its role in contributing to litigation simply by being the biggest litigator in the courts.
- Action plan in response to large number of Government litigation: On June 13, 2017, the department of justice of the Government of India, released an Action Plan to reduce Government Litigation. The action plan was in response to the fact that 46 per cent of the total pending cases in the court system pertains to the government.
- Legal Information Management Briefing System (LIMBS): In 2015, they started the rather aptly named LIMBS project that intends to connect 55 ministries and their departments for litigation management. Aptly named, for it seeks to connect the various limbs of governance of our state. As on January 3, LIMBS shows that there are 6,20,000 cases involving the government pending before the court system.
- National Litigation Policy (NLP), 2010: The status report to the NLP, 2010, was prepared because it is based on the recognition that the government and its various agencies are the predominant litigants in the courts and tribunals in the country. And, hence, it aimed to transform the government into an efficient and responsible litigant.
Is all its litigation is initiated by the government?
- To be fair to the government, not all its litigation is initiated by it.
- For instance, the government is the catalyst in inter-departmental litigation (between wings of the government) and routine appeals in service matters.
- However, citizens trigger writ jurisdiction of the courts and file appeals in criminal cases. These also constitute a segment of cases involving the government being heard at various high courts and the Supreme Court.
- So, while the government can control some of the litigation it is involved in, it is not the catalyst in certain classes of cases that involve it.
Way ahead
- Insights provided by the Vidhi Centre: The Vidhi Centre for Legal Policy in its report on Government Litigation published in 2018, provides great insights into where the government can and cannot control the litigation it is party to.
- Where Government control its litigation: For instance, the government’s 2010 National Litigation Policy (NLP) recognises that service matters should not be normally appealed and only cases which involve questions of constitutional interpretation should be pursued all the way till the Supreme Court. The government should implement this reform suggested by its own policymakers.
- Reasons to reduce the litigation: There are many good reasons to reduce litigation that involves the government. Reducing the burden on the courts is a prime reason. As Vidhi 2018 notes, the costs involved in pursuing litigation eat into public funds. And a court battle between the individual and the state is also a battle of unequals.
Conclusion
- What we need to address the overburdened court system is for the largest litigant to use the court system more efficiently and cautiously. This would be a tremendous start to addressing the problem of pendency. Appointing more judges would be a massive step to helping more dispute resolution as well.
Mains question

Q. Pendency of cases haunts Indian judiciary for a very long time. While there are multiple reasons for pendency, it is said that Government is the largest Litigant discuss. Enlist what efforts are taken by the government to reduce its litigation?

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January 7, 2023
Free speech of Ministers, restrictions and the opinion of the court
Context
- A Constitution Bench of the Supreme Court on Tuesday unanimously and rightly ruled out any additional curbs on free speech by ministers. It said, like other citizens, they are guaranteed the right to freedom of expression under Article 19(1) (a), governed by the reasonable restrictions laid out in Article 19(2) and those are enough.
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What is the issue of freedom of speech to Ministers?
- Scope: Ministers and lawmakers enjoy the freedom of speech and expression under Article 19(1) of the Constitution as other citizens and additional restrictions cannot be imposed to curb their right to free speech.
- Restrictions: A five-judge Constitution bench held that curbs on free speech cannot extend beyond what is prescribed under Article 19(2) of the Constitution imposes reasonable restrictions and applies equally on all citizens.
What the court said?
- Rights are not residual privileges: Court said that the role of the court is to protect fundamental rights limited by lawful restrictions and not to protect restrictions and make the rights residual privileges.
- Distinction on government’s responsibility and remarks by individual minister: The ruling also made a valid distinction on the government’s vicarious responsibility for ill-judged or hateful remarks made by its individual ministers, the flow of stream in collective responsibility is from the Council of Ministers to the individual ministers. The flow is not on the reverse, namely from the individual ministers to the Council of Ministers.
- Clarification on the concept of collective responsibility: It is not possible to extend the concept of collective responsibility, it said, to “any and every statement orally made by a Minister outside the House of the People/Legislative Assembly”.
- Public functionaries should be more responsible while they speak: Even while agreeing with the majority ruling, however, it is possible to underline the concern articulated in the minority judgment over a hateful public discourse “hate speech, whatever its content may be, denies human beings the right to dignity”. And to agree with it when it speaks of the special duty of public functionaries and other persons of influence to be more responsible and restrained in their speech, to “understand and measure their words”.
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
Brief Analysis: Hate speech by Ministers
- Problem is real but primarily political: The problem of hate speech by ministers and others belonging to the party in power is real, but it is primarily political.
- Solution is not in new law as, there are enough provisions to deal with it: The solution is not for the court to draw a new line, or even, as the minority judgment proposed, for Parliament to make another law. There are enough provisions in the statute book to deal with speech that promotes enmity and violence or results in cramping the freedoms of others.
- Legal provisions can be weaponised so what is needed is a political resolve: What is missing is the political resolve and will of governments to act on instances of hate speech, especially when they involve one of their own, and there are no legal shortcuts to make up for that absence. In fact, the same legal provisions that are designed to curb hate speech can be twisted and turned and weaponised by governments against citizens who dissent and disagree.
Conclusion
- The problem of hate speech by ministers and others associated with the party in power is real, but it is primarily political. The solution lies not in making new laws, but in individual responsibility and collective political resolve.
Mains question

Q. How do you understand hate speech? Do ministers and MLAs have freedom of speech? Discuss the recent court ruling on free speech restrictions on ministers.

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January 5, 2023
Ministers’ Right to Free Speech and Issues
The Supreme Court has held that there is no reason to impose “additional restrictions” on the right to free speech of Ministers and the government is not vicariously liable for disparaging remarks made by them, even if the comments are traceable to state affairs or meant to protect the government.

Why are we discussing this?
- Many politicians make unwarranted statements and tender an apology in return.
- The PM or the CM does not have disciplinary control over the members of the Council of Ministers.
- In a country like ours, where there is a multi-party system and where coalition Governments are often formed, it is not possible at all times for the whip to control the politician’s behavior.
- A derogatory speech that closely resembles hate speech cannot fall within the ambit of the free speech right.
Do ministers and lawmakers have absolute freedom of speech?
- Scope: Ministers and lawmakers enjoy the freedom of speech and expression under Article 19(1) of the Constitution as other citizens and additional restrictions cannot be imposed to curb their right to free speech.
- Restrictions: A five-judge Constitution bench held that curbs on free speech cannot extend beyond what is prescribed under Article 19(2) of the Constitution imposes reasonable restrictions and applies equally on all citizens.
What is the case?
- The proceedings in the case began when the top court took cognisance of a controversial statement made by former UP minister in July 2016.
- He had allegedly termed a gang rape case as part of a “political conspiracy”. While he was let off with an unconditional apology, the Court agreed to examine the larger issue.
- In October 2017, a three-judge bench referred the matter to the constitution bench to decide on various aspects of the matter.
Key issues examined
- Free speech and sensitive issues: The top priority was to examine whether ministers, public functionaries and lawmakers can claim freedom of speech while expressing views on sensitive matters.
- Free speech and state matters: Another key aspect of the matter was whether a statement by a minister in relation to any affairs of the State or for the protection of government can be attributed vicariously to the government itself.
What does Article 19 say?
- Freedom: Article 19(1) (a) guarantees the freedom of speech and expression to all citizens. It is the first condition of liberty and plays an important role in forming public opinion.
- Restrictions: As per Article 19(2), restrictions can be imposed upon the freedom of speech and expression in the interests of:
1. Sovereignty and integrity of India,
2. Security of the state,
3. Friendly relations with foreign states,
4. Public order, decency or morality, or
5. In relation to contempt of court,
6. Defamation, or
7. Incitement to an offense
What does the judgment say about free speech restrictions?
- Citizens had the right to petition the Court for violations of Article 19 (freedom of expression) and Article 21 (right to life).
- A statement made by the Minister, inconsistent with the rights of the citizens, may not by itself be actionable.
- It is not possible to extend this concept of collective responsibility to any and every statement orally made by a Minister outside the House of the People/Legislative Assembly.
Way forward
- Legal framework: A proper legal framework was necessary before taking action as a constitutional tort.
- Political will: Parliament could enact legislation or code to restrain citizens in general and public functionaries in particular from making disparaging or vitriolic remarks against fellow citizens.
- Code of conduct: Likewise, political parties should come up with a code of conduct to regulate and control the actions and speech of their functionaries and members.
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January 4, 2023
Sixth Schedule and Ladakh
A high-powered committee to ensure protection of land and employment for the people of Ladakh does not address the demand for inclusion of State under the Sixth Schedule of the Constitution.

What is the Sixth Schedule?
- The Sixth Schedule under Article 244 provides for the formation of autonomous administrative divisions — Autonomous District Councils (ADCs).
- ADCs have some legislative, judicial, and administrative autonomy within a state.
- The Sixth Schedule applies to the NE states of Assam, Meghalaya, Mizoram (three Councils each), and Tripura (one Council).
Composition of ADCs
- ADCs have up to 30 members with a term of five years.
- It can make laws, rules and regulations with regard to land, forest, water, agriculture, village councils, health, sanitation, village- and town-level policing, inheritance, marriage and divorce, social customs and mining, etc.
- The Bodoland Territorial Council in Assam is an exception with more than 40 members and the right to make laws on 39 issues.
Why does Ladakh want to be part of the Sixth Schedule?
- Tribal populations: According to the 2011 Census, the tribal population in the UT of Ladakh is 79.61% of the total population.
- Local aspirations: There was much enthusiasm initially, mostly in Leh, after the repeal of Art. 370 which created two new UTs.
- Negligence in erstwhile J&K state: Buddhist-dominated Leh district had long demanded UT status because it felt neglected by the erstwhile state government.
- Denial of Legislature: The enthusiasm waned as it was understood that while the UT of J&K would have a legislature, the UT of Ladakh would not.
- Inadequate representation: The administration of the region is now completely in the hands of bureaucrats with only 1 MP.
- New domicile criteria: The changed domicile policy in Jammu and Kashmir has raised fears in the region about its own land, employment, demography, and cultural identity.
- Statehood demands: A coalition of social, religious, and political representatives in Leh and Kargil has demanded full statehood for Ladakh.
Cultural significance of Ladakh
- Ladakh is historically perceived as a cosmopolitan region with centuries of multiple cultural settings.
- It was an Asian pivot – the people here traversed diverse cultural boundaries and engaged with ideas.
Can Ladakh be included in Sixth Schedule?
- NCST Recommends: In September 2019, the National Commission for Scheduled Tribes recommended the inclusion of Ladakh under the Sixth Schedule.
- Distinct culture: It was predominantly tribal (more than 97%), people from other parts of the country had been restricted from purchasing or acquiring land there, and its distinct cultural heritage needed preservation.
Legal hurdles
- Fifth schedule as an alternative: The Constitution is very clear, Sixth Schedule is for the Northeast. For tribal areas in the rest of the country, there is the Fifth Schedule.
- Exclusive provision for NE: Notably, no region outside the Northeast has been included in the Sixth Schedule.
- Requires Constitutional Amendment: It remains the prerogative of the government. For this, a constitutional amendment is required.
Try this question from CSP 2015:

Q.The provisions in Fifth Schedule and Sixth Schedule in the Constitution of India are made in order to-

(a) Protect the interests of Scheduled Tribes

(b) Determine the boundaries between States

(c) Determine the powers, authority and responsibilities of Panchayats

(d) Protect the interests of all the Border States

[wpdiscuz-feedback id=”auf90w3qys” question=”Please leave a feedback on this” opened=”1″]Post your answers here.[/wpdiscuz-feedback]

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January 4, 2023
Kalasa-Banduri Nala Project
Karnataka’s decision to go ahead with a water diversion project on river Mahadayi has escalated its long-standing dispute on the issue with neighbouring Goa.

What is the Kalasa-Banduri Nala Project?
- The Kalasa Banduri Nala project aims to divert water from Mahadayi to satisfy the drinking water needs of Belagavi, Dharwad, Bagalkot and Gadag districts.
- Though the project was first proposed in the early 1980s, it has remained on paper owing to a dispute between Karnataka, Goa and Maharashtra.
- As per plans, barrages are to be built against Kalasa and Banduri streams — tributaries of Mahadayi — and water diverted towards Karnataka’s parched districts.
The larger issue: Mahadayi dispute
- Mahadayi originates inside the Bhimgad Wildlife Sanctuary in the Belagavi district of Karnataka and flows into the Arabian Sea in Goa.
- Goa, under its then CM Manohar Parrikar, approached the Centre, urging it to assess the available resources in the river and allocate water to the three basin states — Goa, Maharashtra and Karnataka.
- Due to the protests in Goa and also due to concerns over ecological damage, the project was put on hold by the then government.
- The dispute gained steam in 2006, when Karnataka decided to start work on the project.
- Goa then approached the Supreme Court, seeking the creation of a Tribunal to settle the water sharing dispute.
- A Tribunal was finally set up by the UPA government in November 2010.
What did the Tribunal award?
- The Tribunal in 2018 awarded 13.42 TMC water from Mahadayi river basin to Karnataka, 1.33 TMC to Maharashtra and 24 TMC to Goa.
- In Karnataka’s share, 5.5 TMC was to meet drinking water needs and 8.02 TMC was for hydro-electricity generation.
- Of the 5.5 TMC, 3.8 TMC was to be diverted to Malaprabha basin through Kalasa and Banduri Nalas (canals).
- This was notified by the Central government in February 2020.
Issues raised with the Tribunals award
- After the Tribunal award, Goa filed a Special Leave Petition in the Supreme Court in July 2019, challenging the quantum of allocation.
- Subsequently, in October 2020, it filed a contempt petition before the SC, accusing Karnataka of illegally diverting water from the Mahadayi basin.
- Civil appeals were also filed by Maharashtra over the dispute.
Also read:

In news: Interstate River Water Disputes Act, 1956

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January 4, 2023
Remote EVM for Migrant Voters
The Election Commission of India said that it has developed a prototype for a Multi-Constituency Remote Electronic Voting Machine (EVM) which would enable remote voting by migrant voters.

Electronic Voting Machine (EVM)
- Electronic voting is the standard means of conducting elections using Electronic Voting Machines (EVMs) in India.
- The system was developed and tested by the state-owned Electronics Corporation of India and Bharat Electronics in the 1990s.
- They were introduced in Indian elections between 1998 and 2001, in a phased manner.
What are Remote EVMs?
- Remote Electronic Voting Machines (RVM) can handle multiple constituencies from a single remote polling booth.
- The idea is to implement voter portability as a pilot project in the upcoming Assembly elections in nine states in 2023.
- This means that if the pilot is successful then in the 2024 general elections voter portability can be fully implemented.
Need for RVMs
- Ensuring participative elections: The inability to vote due to internal migration is one of the prominent reasons to be addressed to improve voter turnout and ensure participative elections.
- Migration-based disenfranchisement: There were multifarious reasons for a voter not opting to register in a new place of residence, thus missing out on exercising the right to vote.
- Increasing voter turnout: The voter turnout in General Elections 2019 was 67.4% and the ECI is concerned about the issue of over 30 crore electors not exercising their franchise and also differential voter turnout in various States/UT.
Significance of the move
- Panacea to migration-led deprivation: Out-migration due to the need to work, marriage, and education, is predominant among the rural population in overall domestic migration.
- Increasing voter turnout: Approximately 85% of the internal migration is within the States.
- Multiple booth targeting: This modified form of EVM can handle up to 72 multiple constituencies from a single remote polling booth.
Challenges for RVMs

Many political parties have already flagged the inherent issues such as-
- Defining domestic migrants
- Implementation of Model Code of Conduct
- Ensuring secrecy of voting
- Facility of polling agents for identification of voters
- Process and method of remote voting and
- Counting of votes
Technical issues
- Amendment to legacy laws: Among the laws and rules which would need an amendment to implement remote voting is The Representation of People’s Act of 1950 and 1951, The Conduct of Election Rules, 1961 and The Registration of Electors Rules, 1960.
- Vagueness over Migration: The definition of migrant voter would also need to be reworked with respect to retaining registration at the original place in the context of the legal construct of “ordinary residence” and “temporary absence”.
- Territorial constituency concept: The territorial constituency concept of remote voting and defining remoteness itself that is an outside constituency, outside the district or outside state will need to be dealt with.
- Administrative challenges: These include enumerating remote voters-self declaration, ensuring secrecy of voting at remote locations, provision of polling agents at remote voting booths, and ensuring identification of voters to avoid impersonation.
- Acceptance issues: Acceptance of EVMs has been a contested issues. This has somehow eased after the introduction of the voters-verifiable paper-audit trial (VVPAT).
Way forward
- The initiative, if implemented, can lead to a social transformation for the migrants and connect with their roots as many times they are reluctant to get themselves enrolled at their place of work.
- Frequently changing residences, not enough social and emotional connect with the issues of an area of migration will no longer remain obstacles.
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December 30, 2022
Why courts keep striking down OBC reservation in local polls?
The Lucknow bench of the Allahabad High Court quashed the state government’s draft notification on urban local body elections and ordered that the polls be held without reservation for OBCs.

Precursor to the news
- The Uttar Pradesh government had issued a draft notification for the reservation of Other Backward Classes (OBCs) in urban local body elections.
Why did the HC strike the draft down?
- The verdict comes on the back of PILs challenging the state’s OBC reservation draft.
- It was alleged that it was prepared without following the “triple test” formula prescribed by the Supreme Court.
- The Court said that OBC reservation in local body polls cannot be provided until conditions mandated in the “triple test” are complied with.
What’s the Triple Test formula?
- A five-judge Constitution Bench in the K. Krishnamurthy (Dr.) v. Union of India (2010) judgment said that barriers to political participation are not the same as barriers to education and employment.
- While deciding on the legality of OBC reservations in Maharashtra local body elections in March 2021, the Supreme Court set out a three-layered test – also called triple test.
- This is something that State governments have to follow to provide reservations-
1. Step 1: States must set up a dedicated commission to examine backwardness in local bodies.
2. Step 2: they must determine the size of the quota for communities on the basis of data collected by the commission.
3. Step 3: These reservations, combined with the Scheduled Castes and Scheduled Tribes quotas, cannot exceed 50% of the total seats in the local body.
What did the court observe now?
- Reservation to OBCs in local body elections without empirical base can no more be sustainable in law.
- The latest order in RR Wagh v. State of Maharashtra & others makes it mandatory that the principles laid down by the Supreme Court for providing reservation to OBCs in local bodies shall be scrupulously followed across the country.
Major takeaways of K. Krishnamurthy Case

In this case, the Supreme Court had interpreted Article 243D(6) and Article 243T(6), which permit reservation by enactment of law for backward classes in local bodies respectively.
- It held that barriers to political participation are not the same as that of the barriers that limit access to education and employment.
- However, for creating a level playing field, reservation may be desirable as mandated by the aforementioned conditions.
- Above articles provide a separate constitutional basis for reservation, as distinct from what are conceived under Article 15 (4) and Article 16 (4) which form the basis for reservation in education and employment.
Reception of the Krishnamurthy Judgment
- The Indian political class usually displays apathy to the law declared by the courts as contrary to the enacted law.
- The 2010 judgment was not acted upon and the constitutionality of the enacted reservation was challenged.
- This resulted in the 2021 judgment of a three-judge Bench of the Supreme Court.
What about other states?
- In 2021, OBC reservations in local bodies were set aside in Odisha and Madhya Pradesh too on similar grounds by courts.
- Earlier this year, the Karnataka and Patna high courts have set aside notifications reserving seats for OBCs in municipal elections in Bengaluru and Bihar.
- In May this year, the top court, however, allowed local body polls with OBC reservation in Madhya Pradesh after it proved compliance to the triple test formula.
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December 28, 2022
Delimitation exercise in Assam
The Election Commission is set to begin the delimitation exercise of Assembly and parliamentary constituencies in Assam using census figures of 2001.

Why discuss this?
- The last delimitation of constituencies in Assam was done on the basis of census figures of 1971 by the then Delimitation Commission in 1976.
What is Delimitation?
- Delimitation is the act of redrawing boundaries of an Assembly or Lok Sabha seat to represent changes in population over time.
- This exercise is carried out by a Delimitation Commission, whose orders have the force of law and cannot be questioned before any court.
Why is it needed?
- The objective is to redraw boundaries (based on the data of the last Census) in a way so that the population of all seats, as far as practicable, be the same throughout the State.
- Aside from changing the limits of a constituency, the process may result in a change in the number of seats in a state.
How is delimitation carried out?
- Delimitation is carried out by an independent Delimitation Commission (DC).
- Under Article 82, the Parliament enacts a Delimitation Act after every Census.
- Once the Act is in force, the Union government sets up a DC made up of a retired Supreme Court judge, the Chief Election Commissioner and the respective State Election Commissioners.
Terms of reference for DC
- The Commission is supposed to determine the number and boundaries of constituencies in a way that the population of all seats, so far as practicable, is the same.
- The Commission is also tasked with identifying seats reserved for Scheduled Castes and Scheduled Tribes; these are where their population is relatively large.
- All this is done on the basis of the latest Census and, in case of difference of opinion among members of the Commission, the opinion of the majority prevails.
Implementation
- The draft proposals of the DC are published in the Gazette of India, official gazettes of the states concerned and at least two vernacular papers for public feedback.
- The Commission also holds public sittings.
- After hearing the public, it considers objections and suggestions, received in writing or orally during public sittings, and carries out changes, if any, in the draft proposal.
- The final order is published in the Gazette of India and the State Gazette and comes into force on a date specified by the President.
How often has delimitation been done in the past?
- The first delimitation exercise in 1950-51 was carried out by the President (with the help of the Election Commission).
- The Constitution at that time was silent on who should undertake the division of states into Lok Sabha seats.
- This delimitation was temporary as the Constitution mandated redrawing of boundaries after every Census. Hence, another delimitation was due after the 1951 Census.
- Pointing out that the first delimitation had left many political parties and individuals unhappy, the EC advised the government that all future exercises should be carried out by an independent commission.
- This suggestion was accepted and the DC Act was enacted in 1952.
- DCs have been set up four times — 1952, 1963, 1973 and 2002 under the Acts of 1952, 1962, 1972 and 2002.
Why postponed till 2026?
- There was no delimitation after the 1981 and 1991 Censuses.
- Although the freeze on the number of seats in Lok Sabha and Assemblies should have been lifted after the 2001 Census, another amendment postponed this until 2026.
- This was justified on the ground that a uniform population growth rate would be achieved throughout the country by 2026.
- So, the last delimitation exercise — started in July 2002 and completed on May 31, 2008 — was based on the 2001 Census and only readjusted boundaries of existing Lok Sabha and Assembly seats and reworked the number of reserved seats.
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December 28, 2022
Appointment of Judges: A case of confrontation between the Centre and judiciary
Context
- Recently, there has been confrontation between the Centre and judiciary on the interpretation of Article 124 (2) and 217 (1) of the Constitution.
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Provisions related to the appointment of judges to the supreme court and high court
- Article 124 (2): It highlights that every judge of the Supreme Court will be appointed by the president after consultation with such of the judges (in particular, the chief justice) of the Supreme Court and of the high courts in the states as necessary.
- Article 217 (1): Similarly, for high courts, Article 217 (1) highlights that every judge of a high court will be appointed by the president after consultation with the Chief Justice of India, the governor of the state, and the chief justice of the high court.
- Judicial independence and Collegium system: Judicial interpretation in SP Gupta vs Union of India (1981), The Supreme Court Advocates-on Record Association vs Union of India (Second Judges case) (1993) and Article 143(1) vs Unknown (Third Judges Opinion) (1998) has further evolved the principle of judicial independence and led to a collegium system for recommending judges.
- Role of central government: Currently, the Centre can accept or reject recommendations made by the collegium system however, if a recommendation was reiterated, the government was obliged to accept it.
What the ongoing tussle is all about?
- More recently established consensus has given way to a stalemate, as the Centre stalls recommendations reiterated by the Collegium.
- The Supreme Court pulled up the government for not following timelines laid down in the Second Judges Case.
- The Standing Parliamentary Committee on Law and Personnel has also highlighted its disagreement with the Department of Justice that the time for filling vacancies cannot be indicated.
What will be the impact of this tussle?
- Decline in the capacity of India’s judicial system: The net effect of this historic tussle between the independent judiciary and overweening Centre has been a decline in the capacity of India’s judicial system
- Vacancies in higher judiciary: There were approximately three vacancies (of 34) in the Supreme Court, along with about 381 (of 1,108) vacancies for judges in the high courts.
- In lower judiciary: The lower judiciary had about 5,342 (of 24,631) seats vacant, accounting for 20 per cent of its capacity.
- Impact on judicial efficiency: Such vacancies, particularly in the high courts of Bombay, Punjab & Haryana, Calcutta, Patna and Rajasthan are bound to have an impact on judicial efficiency (with about four crore cases pending, as of August 2022)
A study: Process of appointment of judges in other countries and by political institutions
- In Italy: Here, appointments to the Constitutional Court are made by the president, the legislature and the Supreme Court, with each entity allowed to nominate five judges.
- In US: Supreme Court justices are nominated (for life) by the president and then approved by Senate via a majority vote. Whereas, the state governor appoints state judges based on recommendations provided by a merit commission.
- In Germany: The German Constitutional Court is appointed by the Parliament (each House gets four appointments in each of the Court Senates) with a supermajority vote (2/3). Naturally, this can lead to a partisan judiciary.
- In Iraq: All judges are graduates of a Judicial Institute, with all applicants undergoing written and oral tests, along with an interview with a panel of judges.
- In Japan: The Supreme Court Secretariat controls lower-level judicial appointments, along with their training and promotions.
- Judicial elections to enhance the accountability of judiciary: Judicial elections have also been utilised to enhance the accountability of the judiciary a variety of states in the US using elections for judicial appointments to the State Supreme Courts.
- Judicial councils: Other countries have experimented with judicial councils (often comprising of existing judges, representatives of the Ministry of Justice, members of the bar association, laymen etc)
Appointments through Judicial Commission
- Centres push Judicial Commission: for Recently, the Centre pushed for judicial appointments to be conducted via a Judicial Commission (National Judicial Appointments Commission Bill, 2014).
- Supreme court says collegium system open to greater transparency: The Supreme Court struck down the NJAC Act (2014) with a 4:1 majority, while highlighting that it was open to greater transparency in the collegium system in particular, making the collegium more transparent, fixing eligibility criteria for appointing judges and debating whether an empowered secretariat was required to appoint judges.
In this scenario what are suggested reforms?
- Empower secretariat to select and recommend candidates: The Collegium system can continue; however, a secretariat may be empowered to select and recommend candidates, with the Executive continuing to hold power to appoint judges.
- Greater representation of our society in the judiciary: The secretariat could be staffed with current judges, members of the bar association, representatives of the law ministry and laymen and should push for greater representation of our society in the judiciary. There were only three women and two SC judges in the Supreme Court.
- New Court of appeal: Beyond judicial appointments, there is a clear need for having a new Court of Appeal (refer PIL by V Vasanthakumar). The Supreme Court was never intended to be a regular court of appeal against orders in high courts (Bihar Legal Society vs Chief Justice of India, 1986) the Supreme Court should not be hearing bail applications.
- Federal court of Appeal: Instead, as recommended by the Law Commission, we need to have a Federal Court of Appeal, with branches in major metros.
- Transform Supreme court into constitutional court: The Supreme Court should be transformed into a Constitutional Court (via a constitutional amendment) doing this would mean fewer cases (about 50, anecdotally) being kept pending at the highest level.
- Defined retirement age for all judges: There need a push for a defined retirement age, say 65, for all judges, whether at a high court or Supreme Court level post retirement, there should also be a mandatory cooling off period for judges to be nominated to roles in government.
Conclusion
- Judicial independence continues to be important for the health of India’s democracy. A credible and impartial system of appointing judges is necessary to achieve judicial independence. Any appointment must ensure judicial accountability, fostering a judiciary which, at an individual and systemic level, is independent from other branches of government.
Mains Question

Q. What is the process of appointment of Supreme Court and High Court Judges? What is the Government’s position on the appointment of judges? What measures are suggested for judicial appointments?

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December 26, 2022