đŸ’„Join UPSC 2027,2028 Mentorship (July Batch) + XFactor Notes & Microthemes PDF
Talk to Mentor

Civilsdaily

Login

Subject: Polity

  • Collegium recommends nine judges for Supreme Court

    The Supreme Court Collegium, led by Chief Justice of India (CJI) N.V. Ramana has recommended to the government nine names for appointment as apex court judges.

    Significant appointments

    • The Collegium has for the first time, in one single resolution, recommended three women judges.
    • It has thus sent a strong signal in favor of the representation of women in the highest judiciary.
    • The process scripted history by naming Karnataka High Court judge B.V. Nagarathna, who may become India’s first woman CJI.

    What is Collegium System?

    • The Collegium of judges is the Indian Supreme Court’s invention.
    • It does not figure in the Constitution, which says judges of the Supreme Court and High Courts are appointed by the President and speaks of a process of consultation.
    • In effect, it is a system under which judges are appointed by an institution comprising judges.
    • After some judges were superseded in the appointment of the CJI in the 1970s, and attempts made subsequently to effect a mass transfer of High Court judges across the country.
    • Hence there was a perception that the independence of the judiciary was under threat. This resulted in a series of cases over the years.

    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.

    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 by 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.

    Scope for transparency

    • 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 opinions admitted the need for transparency, now Collegium’s resolutions are now posted online, but reasons are not given.

    UPSC 2022 countdown has begun! Get your personal guidance plan now! (Click here)

    Back2Basics:

  • Criminalisation of politics

    Context

    According to the Association for Democratic Reforms (ADR), 233 MPs in the current Lok Sabha are facing criminal charges, up from 187 in 2014, 162 in 2009, and 128 in 2004. Recently, the Supreme Court has imposed fines on political parties for failing to comply with its orders regarding complete disclosure of their candidates’ criminal history.

    Order adds strength to Election Commission

    • Through the order in a recent case, the SC has put a new onus on the Election Commission to do something concrete, for example, create a phone app to display the detailed criminal history of any contesting candidate.
    • This should be accompanied with a separate cell in the ECI to monitor the compliance of all the political parties regarding this; any breach should be brought to the attention of the SC without delay.

    Why legislature and political parties are reluctant?

    • Two excuses: The legislature has been very slow in addressing this issue, and political parties remain extremely reluctant to change their ways, citing two major excuses.
    • Winnability of candidate: “Winnability” of candidates is the first reason.
    • The logic of a candidate with criminal charges doing good for the people of a constituency is dubious at best.
    • The winnability clause is an attempt by the party to absolve itself of all blame and put the onus of sending a criminally charged candidate to Parliament solely on the voter.
    • Innocent until proven guilty maxim: The other reason offered by political parties is summarised by the maxim of Indian law, which is that any accused is innocent until proven guilty.
    • It is argued that most criminally accused candidates are the victims of “vendetta politics”.

    Issues with allowing criminals to contest election

    • The logic of a candidate with criminal charges doing good for the people of a constituency is dubious at best.
    • Violation of right to equality under Article 14: There were 4.78 lakh prisoners (as of December 2019) of whom 3.30 lakh were under trial, i.e. not yet proven guilty.
    • Yet, their fundamental rights — their right to liberty, freedom of movement, freedom of occupation and right to dignity — are curbed completely.
    • An “innocent” undertrial cannot vote, but a man chargesheeted for murder can even contest election from jail.
    • These blatant double standards are a clear violation of Article 14, which guarantees to all citizens equality before the law.

    Suggestions

    • ECI suggestion on vendetta politics: The ECI has suggested some safeguards against vendetta politics.
    • First, only offences that carry an imprisonment of at least 5 years are to be considered.
    • The case against the candidate should have been filed at least six months before the scheduled elections for it to be considered.
    • And finally, a competent court must have framed the charges.
    • Fast-track court: An alternative solution would be to try cases against political candidates in fast-track courts.
    • The Supreme Court had sent a directive in 2014, directing that cases against political candidates must be completed within a year, failing which the matter should be reported to the Chief Justices of the respective High Court.
    • This is a matter entirely in the judicial domain.
    • Barring political parties: The Supreme Court has, in the recent order stopped short of drastic steps by rejected the suggestion to direct the Election Commission to bar political parties that fail to comply with criminalisation protocols by using its authority derived from Clause 16A of the Election Symbols Order.
    • This step, the SC reasons, would be going too far and infiltrating the domain of the legislature.

    Conclusion

    The legislature and the judiciary need to do more to curb the menace of criminalisation of politics.

    Feeling anxious about your UPSC preparation? Don’t worry, speak with our mentors and get your problems resolved, personally! (Click here)

  • Official Opposition in Parliament and State Legislatures

    The 60-member Nagaland Assembly now has no MLA in the Opposition.

    Official Opposition

    • It is a term used in Parliament and State Legislatures to designate the political party which has secured the second largest number of seats in either upper or lower houses.
    • In order to get formal recognition in either upper or lower houses, the concerned party must have at least 10% of the total strength of the house.
    • A single party has to meet the 10% seat criterion, not an alliance.
    • Many of the Indian state legislatures also follow this 10% rule while the rest of them prefer the single largest opposition party according to the rules of their respective houses.

    Why study the Opposition?

    • The Rajya Sabha Chairman Venkaiah Naidu recently broke down when he condemned the violent ruckus that erupted in the Upper House very recently.
    • This has raised questions about the decency of the conduct of our elected representatives.

    Role of the Opposition

    • The role of the opposition in the legislature is basically to check the excesses of the ruling or dominant party, and not to be totally antagonistic.
    • Their main role is to question the government of the day and hold them accountable to the public. This also helps to fix the mistakes of the Ruling Party.
    • The Opposition is equally responsible for upholding the best interests of the people of the country.
    • They have to ensure that the Government does not take any steps, which might have negative effects on the people of the country.

    In the legislature, Opposition Party has a major role, which is:

    1. Constructive criticism of the government.
    2. Putting restriction of the arbitrariness of ruling party
    3. Safeguarding liberty and right of people
    4. Preparation to form a government
    5. Expression of public opinion

    Leader of the Opposition

    • They are the politicians who lead the official opposition in either House of the Parliament of India.
    • The LoP is the parliamentary chairperson of the party with the most seats after the government party.
    • S/He is given the status of a minister in recognition of his importance.
    • The LoP received statutory recognition through the Salary and Allowances of Leaders of Opposition in Parliament Act, 1977.

    UPSC 2022 countdown has begun! Get your personal guidance plan now! (Click here)

    Must read:

    [Burning Issue] Democide: Causes and ways to avoid it

  • SC questions govt over Tribunal Reforms Bill

    The Supreme Court has challenged the government to produce material showing its reasons for introducing the Tribunal Reforms Bill of 2021, which abolishes nine appellate tribunals and revives provisions of an ordinance struck down by the Supreme Court, in the Parliament.

    What are Tribunals?

    • Tribunals are specialist judicial bodies that decide disputes in a particular area of law.
    • They are institutions established for discharging judicial or quasi-judicial duties.
    • The objective may be to reduce the caseload of the judiciary or to bring in subject expertise for technical matters.

    Do you know?

    The Income Tax Appellate Tribunal was established as the first Tribunal in India back in 1941.

    Creation of Tribunals

    In 1976, Articles 323A and 323B were inserted in the Constitution of India through the 42nd Amendment.

    • Article 323A: This empowered Parliament to constitute administrative Tribunals (both at central and state level) for adjudication of matters related to recruitment and conditions of service of public servants.
    • Article 323B: This specified certain subjects (such as taxation and land reforms) for which Parliament or state legislatures may constitute tribunals by enacting a law.
    • In 2010, the Supreme Court clarified that the subject matters under Article 323B are not exclusive, and legislatures are empowered to create tribunals on any subject matters under their purview as specified in the Seventh Schedule.

    SC stance on Tribunals

    • The Supreme Court has ruled that tribunals, being quasi-judicial bodies, should have the same level of independence from the executive as the judiciary.
    • Key factors include the mode of selection of members, the composition of tribunals, and the terms and tenure of service.
    • In order to ensure that tribunals are independent of the executive, the Supreme Court had recommended that all administrative matters be managed by the law ministry rather than the ministry associated with the subject area.
    • Later, the Court recommended the creation of an independent National Tribunals Commission for the administration of tribunals.
    • These recommendations have not been implemented.

    Issues with tribunals

    • Pendency: Whereas the reasoning for setting up some tribunals was to reduce the pendency of cases in courts, several tribunals are facing the issue of a large caseload and pendency.
    • No appointment: With over 240 vacancies in key tribunals where thousands of cases were pending, not a single appointment had been made by the government in any of these tribunals till date.

    Tribunals Reforms Bill, 2021

     

    What is the recent news?

    • A three-judge Bench led by CJI has put the government on the dock about the complete absence of material justifying the Bill and also the lack of proper debate in the Parliament.
    • The provisions regarding conditions of service and tenure of Tribunal Members and Chairpersons were struck down by the Supreme Court.
    • However, the same provisions re-appeared in the Tribunal Reforms Bill recently passed.
    • The court has also noted its reservations against the complete dissolution of some tribunals.

    What happens to cases pending before the tribunals are dissolved?

    • These cases will be transferred to High Courts or commercial civil courts immediately. Legal experts have been divided on the efficacy of the government’s move.
    • While on the one hand, the cases might get a faster hearing and disposal if taken to High Courts, experts fear that the lack of specialization in regular courts could be detrimental to the decision-making process.
    • For example, the FCAT exclusively heard decisions appealing against decisions of the censor board, which requires expertise in art and cinema.

    Observations made by the Court

    • With over 240 vacancies in key tribunals where thousands of cases were pending, not a single appointment had been made by the government in any of these tribunals to date.
    • The CJI repeated his question of whether the government was moving towards closing down the tribunals.

    A new flashpoint between Executive and Judiciary

    • The verdict discussed the possibility of legislation overriding the court’s directions.
    • In other cases, too, the SC and Parliament have been at loggerheads on the issue of rationalization of tribunals.

    UPSC 2022 countdown has begun! Get your personal guidance plan now! (Click here)

  • Issue of the oath of an elected representative

    Context

    Some Cabinet Ministers in Karnataka who took oath recently stood out from the rest.  All these oaths run against the spirit of the Constitution.

    Background of agnostic Constitution

    • The public officials who took office under the Government of India Act, 1935 had to take oath which had no mention of God.
    • During the Constituent Assembly debate, B.R. Ambedkar proposed the Preamble, “We, the people of India
”.
    •  H.V. Kamath moved an amendment to the Preamble, “In the name of God, we, the people of India
”.
    • To this proposal, another member, A. Thanu Pillai said that if this amendment is accepted it would affect the fundamental right of freedom of faith.
    • He said that a man has a right to believe in God or not, according to the Constitution.
    • H.N. Kunzru opposed Kamath’s amendment stating that in a matter that vitally concerns every man individually, the collective view should not be forced on anybody.
    • The amendment was defeated, thereby excluding ‘God’ from the Preamble.
    • Thus, our founding fathers gave us an agnostic Constitution.

    What are provisions in Consitution

    • The public officials who took office under the Government of India Act, 1935 had to take oath which had no mention of God.
    • However, the framers of the Indian Constitution rejected this conception of secularism.
    • Constitution gives office-holders an option to swear in God’s name if they so wished.
    • The Supreme Court of India observed in 2012 that the oath by an elected representative should be taken “in the name of God” if the person is a believer or should be “solemnly affirmed” if the person is a non-believer.
    • The Supreme Court said that the oath of an elected representative should be in strict compliance with the wordings of the Constitution. 

    Way forward

    • As the Republic belongs to all the citizenry, irrespective of whether he is a theist, atheist or agnostic, and irrespective of his caste or religion, a person occupying a constitutional post should take oath in the format of ‘“solemnly affirm”.
    • The Constitution should be amended accordingly.

    Conclusion

    If a person takes the oath in the name of a God affiliated to a particular religion or caste, the citizenry cannot expect the absence of affection or ill-will from him. The allegiance of a person holding a constitutional post should only be to the Constitution.

  • Parliament is abdicating its oversight role

    Context

    The monsoon session of Parliament which ended on Wednesday was a disappointment in several ways. This was the fourth straight session that ended ahead of the original schedule.

    No scrutiny of the Bills

    •  Both Houses were frequently disrupted as the Government and Opposition parties could not agree on the topics to be debated.
    • Shrinking worktime: The Lok Sabha worked for just 19% of its originally scheduled time, and the Rajya Sabha for 26%.
    • No examination of Bills by Parliament: Of the 18 Bills passed by the Lok Sabha, only one saw discussion over 15 minutes.
    • In 15 of these Bills, not even one member of the Lok Sabha spoke; each Bill was passed after a short statement by the respective Minister.
    • Every Bill introduced during the session was passed within the session.
    • This means that there was no time for any scrutiny by members.
    • In the period of the Fifteenth Lok Sabha (2009-14), 18% of the Bills were passed within the same session.
    • This rose to 33% in the Sixteenth Lok Sabha and is at 70% halfway through the current Parliament.
    • Thus, we see that, Bills are being passed without any serious examination by parliamentarians.
    • They are most often not being referred to committees, there is hardly any discussion on the floor of the House, and in most instances, Bills are passed within a few days of introduction.

    Bills not being referred to parliamentary committees

    • None of the Bills passed in this session was referred to a parliamentary committee for examination.
    • Important role of committee: Parliamentary committees provide a forum for parliamentarians to engage with experts, stakeholders and government officials to understand the implications of Bills.
    • They deliberate on the consequences of various provisions, and recommend amendments.
    • There has been a sharp downward trend in Bills being referred to them — from 71% in the Fifteenth Lok Sabha to 27% in the Sixteenth, and 12% in the current one till date.

    Important Bills passed

    • Allowing States to identify Backward Class: The Constitution was amended to allow States to identify backward classes (i.e., Other Backward Classes) for the purpose of providing reservations.
    • That amendment also specified that the President of India shall specify the list of OBCs.
    • Recently, the Supreme Court of India had interpreted this provision to imply that the State government cannot issue the list of backward classes.
    • Repealing retrospective taxation: In 2012, the Income Tax Act was amended with retrospective effect from 1961 to cover certain transactions.
    • A Bill passed this session reversed this provision of retrospective taxation. 
    • DICGC to pay within 90 days: The Deposit Insurance and Credit Guarantee Corporation insures all bank deposits against default (currently up to â‚č5 lakh).
    • The Act was amended to require an interim pay-out within 90 days if a bank was going through a liquidation or reconstruction.
    • The General Insurance Business (Nationalisation) Act was amended to enable the Government to bring its shareholding in general insurance companies below 51%.
    • The Tribunals Reforms Bill was passed: The Bill replaced an ordinance which specified the process of appointment of members and their tenure and service conditions.
    • It retained two provisions struck down last month by the Supreme Court: the four-year tenure which the Court changed to five years, and a minimum age of 50 years for judicial members which the Court revised to allow lawyers with experience of 10 years.

    Conclusion

    The reason for having a legislature separate from the executive is to have a check on executive power.But the Parliament appears to be quite ineffective in all its functions and needs a course correction.

    Feeling anxious about your UPSC preparation? Don’t worry, speak with our mentors and get your problems resolved, personally! (Click here)

  • Who is a Whip?

    The party in the opposition has appointed two members as the party’s whips in the Upper House.

    Who is a Whip?

    • A whip is an official of a political party whose task is to ensure party discipline in a legislature.
    • This means ensuring that members of the party vote according to the party platform, rather than according to their own individual ideology or the will of their donors or constituents.
    • Whips are the party’s “enforcers”.
    • They try to ensure that their fellow political party legislators attend voting sessions and vote according to their party’s official policy.
    • Members who vote against party policy may “lose the whip”, effectively expelling them from the party.

    Answer this PYQ:

    Which one of the following Schedules of the Constitution of India contains provisions regarding anti-defection? (CSP 2017)

    (a) Second Schedule

    (b) Fifth Schedule

    (c) Eighth Schedule

    (d) Tenth Schedule

     

    [wpdiscuz-feedback id=”uz4tdbiarn” question=”Please leave a feedback on this” opened=”1″]Post your answers here.[/wpdiscuz-feedback]

    Whips in India

    • In India, the concept of the whip was inherited from colonial British rule.
    • Every major political party appoints a whip who is responsible for the party’s discipline and behaviors on the floor of the house.
    • Usually, they direct the party members to stick to the party’s stand on certain issues and directs them to vote as per the direction of senior party members.

    What happens if a whip is disobeyed?

    • A legislator may face disqualification proceedings if she/he disobeys the whip of the party unless the number of lawmakers defying the whip is 2/3rds of the party’s strength in the house.
    • Disqualification is decided by the Speaker/Chairman of the house.

    Limitations of whip

    • There are some cases such as Presidential elections where whips cannot direct a Member of Parliament (MP) or Member of Legislative Assembly (MLA) to vote in a particular fashion.

    Types of whips

    There are three types of whips or instructions issued by the party

    • One-line whip: One-line whip is issued to inform members of a party about a vote. It allows a member to abstain in case they decide not to follow the party line.
    • Two-line whip: Two-line whip is issued to direct the members to be present in the House at the time of voting.
    • Three-line whip: Three-line whip is issued to members directing them to vote as per the party line.

    Feeling anxious about your UPSC preparation? Don’t worry, speak with our mentors and get your problems resolved, personally! (Click here)

  • Bringing Minority Schools under RTE

    The National Commission for Protection of Child Rights (NCPCR) has recommended that Minority Schools be brought under Right to Education and Sarva Shiksha Abhiyan.

    What is the report?

    • The report is titled “Impact of Exemption under Article 15 (5) with regards to Article 21A of the Constitution of India on Education of Children in Minority Communities”.
    • It has assessed minority schools (schools run by minority organizations) in the country.

    Key recommendations of the report

    • Minority schools are exempt from implementing The Right to Education policy and do not fall under the government’s Sarva Shiksha Abhiyan.
    • Through this report, the NCPCR has recommended that these schools be brought under both RTE and SSA, amongst a host of other recommendations.

    Developments in RTE

    (1) 86th Constitutional Amendment (2002):

    • In 2002, the 86th Amendment to the Constitution provided the Right to Education as a fundamental right.
    • The same amendment inserted Article 21A, which made the RTE a fundamental right for children aged between six and 14 years.
    • The passage of the amendment was followed by the launch of the Sarva Shiksha Abhiyan (SSA) that aimed to provide “useful and relevant, elementary education’’ to all children between six and 14 years.

    (2) 93rd Constitutional Amendment (2006):

    • In 2006, the 93rd CAA inserted Clause (5) in Article 15.
    • This enabled the State to create special provisions, such as reservations for the advancement of any backward classes of citizens like SCs and STs, in all aided or unaided educational institutes, except minority educational institutes.

    (3) RTE Act (2009):

    • The government subsequently brought the Right to Education (RTE) Act, 2009, which centers around inclusive education for all, making it mandatory to include underprivileged children in schools.
    • Specifically, Section 12(1)(c) of the Act provided for a 25 percent reservation of seats in unaided schools for admission of children from economically weaker sections and disadvantaged groups.

    How are minority schools exempt from RTE and SSA?

    • Article 30 of the Constitution states the right of minorities to establish and administer educational institutions.
    • This article aims to provide opportunities to children from different religious and linguistic minority communities to have and conserve a distinct culture, script, and language.
    • Subsequently, in 2012, through an amendment, the institutions imparting religious education were exempted from following the RTE Act.
    • Later on, in 2014 (Pramati judgment), while discussing the validity of exemption under Article 15 (5), the Supreme Court declared the RTE Act inapplicable to schools with minority status.
    • This was in the view that the Act should not interfere with the right of minorities to establish and administer institutions of their choice.

    Why has the NCPCR carried out the study?

    • The Commission’s objective was to assess the impact of this exemption of minority educational institutions from various guidelines that are mandatory for non-minority institutions.
    • It opined that the different sets of rules under Article 21A, Article 30, and Article 15 (5) act as creating a conflicting picture between the fundamental rights of children and the rights of minority communities.

    What are the findings of the report?

    The Commission has observed in the report that many children who are enrolled in these institutions or schools were not able to enjoy the entitlements that other children are enjoying.

    (1) Missionaries schools are elite cocoons

    • It has been said that there have been certain detrimental effects of the exemption – on the one hand, there are schools, mostly Christian Missionary schools.
    • Such schools are admitting only a certain class of students and leaving underprivileged children out of the system, thus becoming what the Commission has called “cocoons populated by elites’’.

    (2) Minorities schools become overcrowded without facilities

    • As opposed to this, other types of minority schools, in particular madrasas, have become “ghettos of underprivileged students languishing in backwardness’’ says the Commission.
    • The Commission has said that students in madrasas that do not offer a secular course along with religious studies – such as the sciences – have fallen behind and feel a sense of alienation and “inferiority’’ when they leave school.

    What are the findings with regards to madrasas?

    There are four kinds of madrasas in India:

    1. Madrasas recognized by the government, which usually impart both religious as well as secular Courses, including the sciences has four percent Mulsim students (15.3 lakh) said the Sachar Committee report.
    2. There are 10,064 such madrasas in India and the Commission points out that these were the ones taken into consideration by the Sachar Committee when it said four percent of Mulsim students (15.3 lakh) studied in madrasas.
    3. There are unrecognized madrasas, which the government hasn’t recognized because they do not impart secular education or lack physical infrastructure, including the number and quality of teachers.
    4. Then, there are unmapped madrasas that have never applied for recognition and function in a more informal setup – there is no data on how many such madrasas exist and how many students study there.

    Why bring them under RTE?

    • The Commission believes this took place as schools wanted to operate outside the legal mandate to reserve seats for backward classes.
    • RTE provides for norms pertaining to basic minimum infrastructure, a number of teachers, books, uniforms, Mid-day Meal, etc., that benefits students in minority schools have not been receiving.

  • [pib] Income Limit of OBCs and Creamy Layer

    A proposal for revision of the income criteria for determining the Creamy Layer amongst the OBCs is under consideration of the Government.

    What is the Creamy Layer?

    • Creamy Layer is a concept that sets a threshold within which OBC reservation benefits are applicable.
    • While there is a 27% quota for OBCs in government jobs and higher educational institutions, those falling within the “creamy layer” cannot get the benefits of this quota.

    Basis of Creamy Layer

    • It is based on the recommendation of the Second Backward Classes Commission (Mandal Commission).
    • The government in 1990 had notified 27% reservation for Socially and Educationally Backward Classes (SEBCs) in vacancies in civil posts and services that are to be filled on direct recruitment.
    • After this was challenged, the Supreme Court in the Indira Sawhney case (1992) upheld 27% reservation for OBCs, subject to exclusion of the creamy layer.

    How is it determined?

    • Following the order in Indra Sawhney, an expert committee headed by Justice (retired) R N Prasad was constituted for fixing the criteria for determining the creamy layer.
    • In 1993, the Department of Personnel and Training (DoPT) listed out various categories of people of certain rank/status/income whose children cannot avail the benefit of OBC reservation.
    1. For those not in government, the current threshold is an income of Rs 8 lakh per year.
    2. For children of government employees, the threshold is based on their parents’ rank and not income.
    3. For instance, an individual is considered to fall within the creamy layer if either of his or her parents is in a constitutional post; if either parent has been directly recruited in Group-A; or if both parents are in Group-B services.
    4. If the parents enter Group-A through promotion before the age of 40, their children will be in the creamy layer.
    5. Children of a Colonel or higher-ranked officer in the Army, and children of officers of similar ranks in the Navy and Air Force, too, come under the creamy layer.
    6. Income from salaries or agricultural land is not clubbed while determining the creamy layer (2004).

    What is happening now?

    • MPs have raised questions about the pending proposal for revising the criteria.
    • They have asked whether the provision of a creamy layer for government services only for OBC candidates is rational and justified.

    Has it ever been revised?

    • Other than the income limit, the current definition of the creamy layer remains the same as the DoPT had spelled out in 1993 and 2004.
    • The income limit has been revised over the years.
    • No other orders for the definition of the creamy layer have been issued.
    • While the DoPT had stipulated that it would be revised every three years, the first revision since 1993 (Rs 1 lakh per year) happened only in 2004 (Rs 2.50 lakh), 2008 (Rs 4.50 lakh), 2013 (Rs 6 lakh), and 2017 (Rs 8 lakh).
    • It is now more than three years since the last revision.

    What does the government propose to do about the revision?

    • A draft Cabinet note has stated that the creamy layer will be determined on all income, including salary calculated for income tax, but not agriculture income.
    • The government is considering a consensus on Rs 12 lakh but salary and agriculture income are also being added to the gross annual income.

  • Issues related to Judicial appointment in India

    Context

    Recommendations of some judges for appointment by the collegium raises the issue of changes in the collegium system.

    Background of the collegium system

    • During the 1970s, the political leaning of a candidate had become a major consideration in the matter of appointment of judges.
    • Therefore, it was felt that the role of the state in the appointment of judges in terms of Article 124 (2) and 217 needed to be reconsidered.
    • But then, in 1982 in S P Gupta’s case, the Supreme Court bench of five judges gave its approval to the primacy of the state in the matter of appointment of judges.
    • However, that judgment was overturned subsequently by a bench of nine judges.
    • Primacy of CJI:  It held that the provisions for consultation with the Chief Justice of India, and the Chief Justices of the high courts in Articles 124 (2) and 217 of the Constitution were introduced because of the realisation that the Chief Justice is best equipped to know and assess the worth of a candidate, and his/her suitability for appointment as a superior judge.
    • Initiation of proposal by CJI: It also held that the initiation of the proposal for appointment of a judge to the SC must be made by the CJI after wider consultation with senior judges, and likewise in the case of high courts.
    • Confirmation of CJI: It was also held that no appointment of any judge to the SC or any high court can be made unless it conforms with the opinion of the CJI.
    • Thus, what is known as the “collegium system” was born.
    • Striking down of NJAC: In 2014, the government tried to make changes to the collegium system by introducing Article 124 (A) by a constitutional amendment, and by enacting National Judicial Appointments Commission Act, 2014.
    • The SC has struck down both the amendment and the Act.

    Has the collegium system succeeded?

    • Nepotism: There have been cases where the nearest relative of Supreme Court judges has been appointed as a high court judge, ignoring merit.
    • Ignoring the merit: Judges far lower in the combined All India Seniority of High Court judges were appointed to SC, and the reason assigned was that those selected were found more meritorious.

    Conclusion

    The collegium system is still the best, but it needs to weed out what is wrong in its actual working. It is hoped that the system will make course corrections in deserving cases.