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Subject: Polity

  • Domicile Based Job Quota

    The Jharkhand Assembly has passed a Bill, which provides 75% reservation for local people in the private sector up to ₹40,000 salary a month.

    Try answering this PYQ first:

    Q.One of the implications of equality in society is the absence of- (CSP 2018)

    (a) Privileges

    (b) Restraints

    (c) Competition

    (d) Ideology

    What is the move?

    • Every employer shall register such employees receiving gross monthly salary as wages not more than ₹ 40,000 as the limit notified by the government from time to time on the designated portal within three months of the Act coming into force.
    • Every employer shall fill up 75% of the total existing vacancies on the date of notification of this Act and subsequent thereto by local candidates with respect to such posts where the gross monthly salary or wages are not more than ₹40,000”.
    • The Bill provides for the local MLA to supervise the employment procedure and issue directions to the employer concerned as it may deem fit.

    Other such states

    • Once notified, Jharkhand will become the third State in the country, after Andhra Pradesh and Haryana, to pass such law.
    • In 2019, Andhra Pradesh passed such law, while in June last, Haryana passed law, reserving 75% quota for the local people in private jobs with monthly salary less than ₹50,000.

    What is Quota for Locals?

    Ans. Constitutional provision for Equal Treatment

    • Article 16 of the Constitution guarantees equal treatment under the law in matters of public employment. It prohibits the state from discriminating on grounds of place of birth or residence.
    • Article 16(2) states that “no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State”.
    • The provision is supplemented by the other clauses in the Constitution that guarantee equality.
    • However, Article 16(3) of the Constitution provides an exception by saying that Parliament may make a law “prescribing” a requirement of residence for jobs in a particular state.
    • This power vests solely in the Parliament, not state legislatures.

    Why does the Constitution prohibit reservation based on domicile?

    • When the Constitution came into force, India turned itself into one nation from a geographical unit of individual principalities and the idea of the universality of Indian citizenship took root.
    • India has single citizenship, and it gives citizens the liberty to move around freely in any part of the country.
    • Hence the requirement of a place of birth or residence cannot be qualifications for granting public employment in any state.

    But are reservations not granted on other grounds such as caste?

    • Equality enshrined in the Constitution is not mathematical equality and does not mean all citizens will be treated alike without any distinction.
    • To this effect, the Constitution underlines two distinct aspects which together form the essence of equality law:
    1. Non-discrimination among equals, and
    2. Affirmative action to equalize the unequal

    Supreme Court rulings on quota for locals

    • The Supreme Court has ruled against reservation based on place of birth or residence.
    • In 1984, ruling in Dr Pradeep Jain v Union of India, the issue of legislation for “sons of the soil” was discussed.
    • The court expressed an opinion that such policies would be unconstitutional but did not expressly rule on it as the case was on different aspects of the right to equality.
    • In a subsequent ruling in Sunanda Reddy v State of Andhra Pradesh (1995), the Supreme Court affirmed the observation in 1984 ruling to strike down a state government policy that gave 5% extra weightage to candidates.
    • In 2002, the Supreme Court invalidated appointment of government teachers in Rajasthan in which the state selection board gave preference to “applicants belonging to the district or the rural areas of the district concerned”.
    • In 2019, the Allahabad HC struck down a recruitment notification by the UP PSC which prescribed preference for women who are “original residents” of the UP alone.

  • Spirit of federalism lies in consultation

    Context

    Recently, various State governments raised concerns about Central unilateralism in the enactment of critical laws on subjects in the Concurrent List of the Seventh Schedule.

    Objection of the state against Centre legislating on the subject in Concurrent List without consulting States

    • Unilateral legislation on subjects in Concurrent list: Kerala Chief Minister stated that it is not in the essence of federalism for the Union government to legislate unilaterally, on the subjects in the Concurrent List.
    • Encroaching on powers of States: Tamil Nadu Chief Minister raised the issue by calling on other Chief Ministers against the Union government encroaching on powers under the State and Concurrent Lists.
    • The Kerala Legislative Assembly unanimously passed a resolution against the Electricity (Amendment) Bill, 2020.
    • The Tamil Nadu Legislative Assembly passed a resolution against the controversial farm laws.

    Background of the Concurrent List

    • The Concurrent List gives the Union and the State Legislatures concurrent powers to legislate on the subjects contained in it.
    • Purpose of Concurrent List: The fields in the Concurrent List were to be of common interest to the Union and the States, and the power to legislate on these subjects to be shared with the Union so that there would be uniformity in law across the country.

    Union government extending its control on subjects in the Concurrent List and State list

    1) Farm laws: Encroaching on the powers of States

    • Parliament passed the farm laws without consulting the States.
    • State List subject: The laws, essentially related to Entry 14 (agriculture clause) belonging to the State List.
    • However, Parliament passed the law citing Entry 33 (trade and commerce clause) in the Concurrent List.
    • Against legal principle set by the Supreme Court: The Supreme Court, beginning from the State of Bombay vs F.N. Balsara case, said that if an enactment falls within one of the matters assigned to the State List and reconciliation is not possible with an entry in the Concurrent or Union List after employing the doctrine of “pith and substance”, the legislative domain of the State Legislature must prevail.

    2) Major Port Authorities Act 2021 and Indian Ports Bill: Centre taking away the power of State

    • The Major Ports Authorities Act, 2021, was passed by Parliament earlier this year.
    • Goa objected to the law, stating that it would lead to the redundancy of the local laws.
    • Concurrent List subject: When it comes to non-major ports, the field for legislation is located in Entry 31 of the Concurrent List. 
    • The Indian Ports Act, 1908, presently governs the field related to non-major ports.
    • As per the Indian Ports Act, 1908, the power to regulate and control the minor ports remained with the State governments.
    • The new draft Indian Ports Bill, 2021, proposes the Maritime State Development Council (MSDC), which is overwhelmingly controlled by the Union government.

    3) Electricity (Amendment) Bill,2020: Centre taking away powers of State

    • Various States like West Bengal, Tamil Nadu and Kerala have also come forward against the Electricity (Amendment) Bill, 2020.
    • The field related to electricity is traceable to Entry 38 of the Concurrent List.
    • The power to regulate the sector was vested with the State Electricity Regulatory Commissions (SERCs), members of which were appointed by the State government.
    • The proposed amendment seeks to establish National Selection Committee, dominated by members nominated by the Union government that will make appointments to the SERCs.
    • The amendment also proposes the establishment of a Centrally-appointed Electricity Contract Enforcement Authority (ECEA).
    • In effect, the power to regulate the electricity sector would be taken away from the State government.

    Way forward

    • Consultation with States: The National Commission to Review the Working of the Constitution (NCRWC), or the Venkatachaliah Commission, had recommended that individual and collective consultation with the States should be undertaken through the Inter-State Council established under Article 263 of the Constitution.
    • Coordination of policy and action in concurrent jurisdiction: The Sarkaria Commission Report had recommended that there should be a coordination of policy and action in all areas of concurrent or overlapping jurisdiction through a process of mutual consultation.
    • Limit powers to ensuring uniformity: The Sarkaria Commission further recommended that the Union government, while exercising powers under the Concurrent List, limit itself to the purpose of ensuring uniformity in basic issues of national policy and not more.
    • Responsibility of Centre: The Supreme Court itself had held in the S.R. Bommai vs Union of India case, the States are not mere appendages of the Union.
    • The Union government should ensure that the power of the States is not trampled with.

    Consider the question “There has been instances of protest by the State government against Centre legislating unilaterally on subjects in Concurrent List. What are the implications of this for the federalism? Suggest the way forward.”

    Conclusion

    The essence of cooperative federalism lies in consultation and dialogue, and unilateral legislation without taking the States into confidence will lead to more protests on the streets.

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  • Right to Sit to be mandated in Tamil Nadu

    The Tamil Nadu government has tabled a Bill in the Legislative Assembly making it mandatory for establishments to provide seating facilities for employees.

    Right to Sit

    • The Right to Sit is aimed to benefit thousands of employees of large and small establishments, particularly those working in textile and jewelry showrooms.
    • Persons employed in shops and establishments in the State are made to stand throughout their duty time resulting in varied health issues.
    • The bill mandates for every premises of establishments to have suitable seating arrangements for all employees so that they may take advantage of any opportunity to sit in the course of their work.
    • This would avoid the ‘on their toes’ situation throughout the working hours.

    Inspired from Kerala

    • A few years ago, workers of textile showrooms in Kerala had gone on a protest demanding the ‘Right to Sit’, prompting the government there to amend the Kerala Shops and Establishments Act in 2018.
    • This in turn provided seating arrangements for them.

    A move for women

    • Most owners of shops and other retail outlets forbid women, the bulk of the shop workforce, to sit.
    • Even leaning against a wall was punished. They have varicose veins and joint pain from standing.
    • Toilet breaks were strictly limited. This has led to urinary infections, kidney problems.

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  • Freedom of Movement and Residence

    The rights to free movement and residence across India cannot be curtailed on flimsy grounds, a Bench of Justices Indira Banerjee and V. Ramasubramanian held in a judgment.

    Freedom of Movement and Residence

    • Article 19(1)(d) and (e) of the Indian Constitution guarantees to every citizen of India right to move freely throughout the territory of India and to reside and settle in any Part of the of the Territory of India.
    • This right is subject to reasonable restrictions imposed by law in the interest of the general public or for the protection of the interests of any Scheduled Tribes.

    (A) Freedom of Movement under Article 19(1)(d)

    • All Citizens of India have the right “to move freely throughout the territory of India.
    • This Right is, however subject to reasonable restrictions mentioned under Article 19(5).

    Restrictions:

    • This clause (5) empowers the State to impose reasonable restrictions in the interest of the general public or for the protection of the interest of any Scheduled Tribe.
    • Kharak Singh V. State of UP (1963) Case: The Supreme Court held that the right to move freely throughout the territory of India means the right of locomotion which connotes the right to move wherever one likes, and however one likes.
    • State of UP V. Kaushalya Case (1964):  In this case, the Supreme court held that the right of movement of prostitutes may be restricted on grounds of Public Health and in the interest of Public Morals.

    (B) Freedom of Resident under Article 19(1)(e)

    • Article 19(1)(e) of the Indian Constitution guarantees to every citizen of India, the right “to reside and settle in any part of the territory of India”.
    • This right is subjected to reasonable restrictions which may be imposed by the State in the interest of the general public or for the protection of the interest of any Scheduled Tribe.

    Some facts

    • The Freedom of Movement and Residence apply only to citizens of India and not the Foreigners.
    • A foreigner cannot claim the right to reside and settle in the country as guaranteed by Article Article 19(1)(e).
    • The Government of India has the power to expel foreigners from India.

    Why in news, now?

    • The Supreme Court has held that the power of the State to pass an externment order or a direction barring certain people entry to specified areas should be exercised only in “exceptional cases”.
    • The court said externment orders have their use in maintaining law and order.
    • However, they cannot be employed as a vindictive or retaliatory measure.
    • The drastic action of externment should only be taken in exceptional cases, to maintain law and order in a locality and/or prevent breach of public tranquility and peace, the court noted.

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    Back2Basics: Article 19

    Article 19(1) states that All citizens shall have the right:

    • (a) to freedom of speech and expression;
    • (b) to assemble peaceably and without arms;
    • (c) to form associations or unions;
    • (d) to move freely throughout the territory of India;
    • (e) to reside and settle in any part of the territory of India; and
    • (f) omitted
    • (g) to practice any profession, or to carry on any occupation, trade, or business

  • Delhi HC observations on Right to be Forgotten

    The Delhi High Court upheld the view that the “Right to Privacy” includes the “Right to be Forgotten” and the “Right to be Left Alone”.

    Right to be Forgotten in India

    • The Right to be Forgotten falls under the purview of an individual’s right to privacy, which is governed by the Personal Data Protection Bill that is yet to be passed by Parliament.
    • In 2017, the Right to Privacy was declared a fundamental right by the Supreme Court in its landmark verdict.
    • The court said at the time that “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution”.

    What was the recent case?

    • The TV celebrity had moved Delhi High Court with the plea that orders be issued to Google and relevant entities to facilitate the removal of posts, videos, articles and any information related to incidents that he was involved.
    • His plea cited that his presence on the internet is a source of “utmost psychological pain” to him.

    Legal issues

    • India does not have a law yet on right to be forgotten.
    • In the meantime, the Information Technology Rules, 2011 — which is the current regime governing digital data — does not have any provisions relating to the right to be forgotten.
    • The Personal Data Protection (PDP) Bill was tabled in Parliament in 2019 and is being examined by a Joint Parliamentary Committee (JPC).

    Key features of PDP Bill

    • Personal Data: Section 20 of the PDP Bill says that a ‘data principal’ — or the person who generates the data or to whom the information pertains — can rightfully ask a ‘data fiduciary’, which is any entity that stores or processes such data, to “restrict or prevent the continuing disclosure of his personal data” in specific circumstances.
    • Purpose of data: To seek the erasure of data, it is necessary to establish that it “has served the purpose for which it was collected or is no longer necessary for the purpose; was made with the consent of the data principal.
    • Right to be forgotten: The Bill says that the right to be forgotten can be enforced only on an order of an adjudicating officer following an application filed by the data principal.
    • Contravention with Free Speech: However, the decision on whether the right to be forgotten can be granted with respect to any data will depend on whether it contravenes “the right to freedom of speech and expression and the right to information of any other citizen”.

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  • Economic criterion not sole basis for Creamy Layer: Supreme Court

    The basis of exclusion of ‘creamy layer’ cannot be merely economic, a Supreme Court Bench has observed in their judgment, while referring to the court’s Indra Sawhney verdict of 1992.

    What was the case?

    • The court was hearing a petition challenging some notifications by the Haryana government sub-classifying backward classes solely on economic basis while fixing the criteria for creamy layer.
    • The notifications said children of persons having “gross annual income” of up to ₹3 lakh annually would get the benefit of reservation in services and admission in educational institutions.
    • The remaining quota would go to those from backward families, which earn between₹3 lakh and ₹6 lakh per annum.
    • The sections earning over ₹6 lakh annually were considered as ‘creamy layer’ under Section 5 of the 2016 Act.
    • The apex court held that the Haryana’s notifications have violated the law declared in the Indra Sawhney judgment by identifying creamy layer only on the basis of income.

    Defying Indra Sawhney Verdict (1992)

    • The case had declared that ‘creamy layer’ in a backward community should be excluded from reservation so that the more deserving were able to come up.
    • Explaining this verdict, court said that such persons were to be treated as ‘creamy layer’ without any further inquiry.

    Who else would be excluded from such reservation?

    • Likewise, people with sufficient income who were in a position to provide employment to others should also be taken to have reached a higher social status and therefore, should be treated as outside the backward class.
    • Similarly, persons from backward classes who had higher agricultural holdings or were receiving income from properties, beyond a prescribed limit, do not deserve the benefit of reservation.

    Key takeaways from the Judgement

    • The Supreme Court has held that the government cannot deny reservation to a person belonging to a backward community solely on the ground that he or she is rich.
    • Social advancement, higher employment in government services, etc, played an equal role in deciding whether such a person belonged to the creamy layer and could be denied quota benefits.
    • The court had illustrated that ‘creamy layer’ would include persons from backward classes who occupied posts in higher services like IAS, IPS, and All India Services.
    • These persons had reached a higher level of social advancement and economic status,and therefore, were not entitled to be treated as backward.

    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).

    Back2Basics: Indira Sawhney Case

    In the famous Mandal case (Indra Sawhney Case, 1992), the scope and extent of Article 16(4), which provides for reservation of jobs in favor of backward classes, has been examined thoroughly by the Supreme Court.

    • Though the Court has rejected the additional reservation of 10% for poorer sections of higher castes, it upheld the constitutional validity of a 27% reservation for the OBCs with certain conditions.
    • The advanced sections among the OBCs (the creamy layer) should be excluded from the list of beneficiaries of reservation.
    • No reservation in promotions; reservation should be confined to initial appointments only. Any existing reservation in promotions can continue for five years only (i.e., up to 1997).
    • The total reserved quota should not exceed 50% except in some extraordinary situations. This rule should be applied every year.
    • The ‘carry forward rule’ in case of unfilled (backlog) vacancies is valid. But it should not violate the 50% rule.

  • Arresting a Cabinet Minister

    The Maharashtra Police has arrested the Union Minister for MSMEs for allegedly making derogatory remarks against the CM.

    Procedure to arrest a Cabinet Minister

    • If Parliament is not in session, a cabinet minister can be arrested by a law enforcement agency in case of a criminal case registered against him.
    • As per Section 22 A of the Rules of Procedures and Conduct of Business of the Rajya Sabha, the Police, Judge, or Magistrate would, however, have to intimate the Chairman of the Rajya Sabha about the reason for the arrest, the place of detention or imprisonment in an appropriate form.

    What is the procedure to be followed by the Chairman of the Rajya Sabha in case of an arrest?

    • The Chairman is expected to inform the Council if it is sitting about the arrest.
    • If the council is not sitting, he/she is expected to publish it in the bulletin for the information of the members.

    What about the privileges of the Rajya Sabha members vis-a-vis arrests?

    • As per the main privileges of Parliament, in civil cases, they have freedom from arrest during the continuance of the House and 40 days before its commencement and 40 days after its conclusion, as per section 135 of the Code of Civil Procedure.
    • The privilege of freedom from arrest does not extend to criminal offences or cases of detention under preventive detention.

    Can a person be arrested from the precincts of the House?

    • No arrest, whether of a member or of a stranger, can be made within the precincts of the House without the prior permission of the Chairman/Speaker and that too in accordance with the procedure laid down by the Home Ministry in this regard.
    • Similarly, no legal process, civil or criminal, can be served within the precincts of the House without obtaining the prior permission of the Chairman/Speaker whether the House is in session or not.

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    Back2Basics: Parliamentary Privileges

    • Article 105 and Article 194 grant privileges or advantages to the members of the parliament so that they can perform their duties or can function properly without any hindrances.
    • Such privileges are granted as they are needed for democratic functioning.
    • These powers, privileges, and immunities should be defined by the law from time to time.
    • These privileges are considered special provisions and have an overriding effect in conflict.

    Freedom from being arrested

    • The member of parliament cannot be arrested 40 days before and 40 days after the session of the house.
    • If in any case a member of Parliament is arrested within this period, the concerned person should be released in order to attend the session freely.

    Right to exclude strangers from its proceedings and hold secret sessions 

    • The object of including this right was to exclude any chances of daunting or threatening any of the members.
    • The strangers may attempt to interrupt the sessions.

    Right to prohibit the publication of its reporters and proceedings 

    • The right has been granted to remove or delete any part of the proceedings that took place in the house.

    Right to regulate internal proceedings

    • The House has the right to regulate its own internal proceedings and also has the right to call for the session of the Legislative assembly.
    • But it does not have any authority in interrupting the proceedings by directing the speaker of the assembly.

    Right to punish members or outsiders for contempt

    • This right has been given to every house of the Parliament.
    • If any of its members or maybe non-members commit contempt or breach any of the privileges given to him/her, the houses may punish the person.
    • The houses have the right to punish any person for any contempt made against the houses in the present or in the past. 

    Article 105(3) and Article 194(3) states that the parliament should from time to time define the laws or pass the laws on the powers, privileges and immunities of the members of the parliament and members of the legislative assembly.

  • Protest should not hinder traffic: SC

    The Supreme Court took a nuanced stand saying farmers have the right to protest but the agitation should not hinder traffic or public movement.

    Right to Protest

    • When a group, community, or even a person goes up to protest, it is usually to showcase their disapproval or demur against any action, policy, statement, etc of state or government or any organization.
    • Mostly the flow of protest is driven through political waves that also demonstrate the collective organization of people to make the government or state address their issues and take steps to overcome them.
    • In India, the right to protest is the manifestation of the right to freedom of assembly, the right to freedom of association, and the right to freedom of speech.

    Constitutional Backing

    • Article 19(1) states that All citizens shall have the right:

    (a) to freedom of speech and expression;

    (b) to assemble peaceably and without arms;

    (c) to form associations or unions;

    (d) to move freely throughout the territory of India;

    (e) to reside and settle in any part of the territory of India; and

    (f) omitted

    (g) to practice any profession, or to carry on any occupation, trade or business

    Reasonable restrictions on Protest

    • Article 51A makes it a fundamental duty for every person to safeguard public property and to avoid violence during the protests and resorting to violence during public protests results in infringement of key fundamental duty of citizens.
    • Article 19(1)(b) states about the right to assemble peaceably and without arms. Thereby, the right to peaceful protest is bestowed to Indian citizens by our Constitution.
    • Article 19(2) imposes a restriction on a person to prevent him from making a defamatory statement which defames the reputation of another person.
    • Article 19(3): The reasonable restrictions are imposed in the interests of the sovereignty & integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation, or incitement to an offense.

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  • What Indian lawmaking needs: More scrutiny, less speed

    Context

    The recent Monsoon Session of Parliament is proof that the speed of passing laws trumps their rigorous scrutiny in our legislative process.

    Issues with lawmaking process in India

    1) Avoiding pre-legislative scrutiny

    • In our parliamentary system, a majority of laws originate from the government.
    • Each ministry decides the path its legislative proposals will take from ideation to enactment.
    • For example, last year, the Shipping Ministry requested public feedback on the two bills — Marine Aids and Inland Vessels.
    • This mechanism enables the strengthening of the legal proposal through stakeholder inputs before being brought to Parliament.
    • However, ministries expedite their bills by not putting them through a similar pre-legislative scrutiny process.

    2) Misuse of Ordinance route

    • Over the years, successive governments have exploited the spirit of this constitutional provision.
    • Governments have promulgated an ordinance a few days before a parliamentary session, cut a session short to issue one, and pushed a law that is not urgent through the ordinance route.
    •  But the executive sometimes fails to follow through on the legislative urgency.
    • Bringing in law through the ordinance route also bypasses parliamentary scrutiny.
    • But parliamentary committees rarely scrutinise bills to replace ordinances because this may take time and defeat the issuing of the ordinance.
    • Over the last few years, bills like GST, Consumer Protection, Insolvency and Bankruptcy, Labour Codes, Surrogacy, and DNA Technology have benefited from parliamentary committees’ scrutiny.
    • Their closed-door technical deliberations, inputs from ministry officials, subject-matter experts, and ordinary citizens have strengthened government bills.

    3) Delay in rule framing

    • Unnecessary urgency in getting laws passed by Parliament does not result in their immediate implementation.
    • For the law to work on the ground, the government is supposed to frame rules.
    • Last year the Cabinet Secretary twice requested the personal intervention of secretaries heading the Union ministries to frame regulations for bringing into force the laws made by Parliament.
    • Before the Monsoon Session, he wrote a follow-up letter on similar lines to his colleagues.

    Implication of fast-tracking the law-making

    • Difficulty in achieving desired outcomes: Hurriedly-made and inadequately-scrutinised laws hardly ever achieve their desired outcomes.
    • Wastage of time of legislature: Enacting statutes without proper scrutiny also wastes the legislature’s time when the government approaches Parliament to amend such laws.
    • Loss of opportunity: But the unmeasurable cost of a poorly-made law is in the loss of opportunity to an entire nation that has to comply with it.

    Way forward

    • The government must ensure that it identifies the gaps in our legal system proactively.
    • All its bills should go through pre-legislative scrutiny before being brought to Parliament.
    • The legislature, on its part, should conduct in-depth scrutiny of government bills.
    • Mandatory scrutiny of bills by parliamentary committees should become the rule and not the exception.

    Conclusion

    India is in urgent need of course correction in its legislating process. What we need is a robust law-making process.

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  • Supreme Court Collegium shows the way in judicial appointments

    Context

    For the first time ever, the Supreme Court Collegium led by the Chief Justice of India (CJI) recommended/selected as many as nine persons at one go to be appointed to the apex court.

    Significance of the move

    • It is a happy augury that the present CJI, Justice N.V. Ramana, could, along with his colleagues in the Collegium, select the judges within a short period of his assumption of office.
    • It is a tough task to build a consensus around one person or a few persons, the CJI being the head of the Collegium, has an unenviable task in building that consensus.
    • Therefore, it can be said without any fear of contradiction that the job of selecting as many as nine judges for appointment to the Supreme Court was done admirably well.
    •  The latest resolution of the Collegium gave effect to the multiple judicial pronouncements of the top court on the subject.
    • The selection of three women judges, with one of them having a chance to head the top court, a judge belonging to the Scheduled Caste and one from a backward community and the nine selected persons belonging to nine different States, all point towards an enlightened and unbiased approach of the members of the Collegium.
    • A needless controversy is sought to be raised by a section of the media about this round of selection citing the non-existing ‘Rule of Seniority’.

    Various norms to be followed in judicial appointment

    1) Consideration of merit

    • Article 142 (1) contains the concept of ‘complete justice’ in any cause or matter which the Supreme Court is enjoined to deliver upon.
    • So, while selecting a judge to adorn the Bench, the fundamental consideration should be his/her ability to do complete justice.
    • In the Supreme Court Advocates-on-Record Association and Another vs Union of India (1993), the Court spelt out the parameters within which to accomplish the task of selecting candidates for appointment to the higher judiciary.
    • The most crucial consideration is the merit of the candidates.
    • The merit is the ability of the judge to deliver complete justice.

    2) Plurality

    • The nine judges who decided the above case were quite aware of these compelling realities.
    • So, they said, “In the context of the plurastic [pluralistic] society of India where there are several distinct and differing interests of the people with multiplicity of religions, race, caste and community and with the plurality of culture, it is inevitable that all people should be given equal opportunity in all walks of life and brought into the mainstream.”

    3) Transparency

    • India is perhaps the only country where the judges select judges to the higher judiciary.
    • It is, therefore, necessary to make the norms of selection transparent and open.
    •  In 2019, a five judge Bench of the Supreme Court, of which the present CJI was also a member, laid emphasis on this point.
    • The Bench observed: “There can be no denial that there is a vital element of public interest in knowing about the norms which are taken into consideration in selecting candidates for higher judicial office and making judicial appointments”.

    Thus, the essence of the norms to be followed in judicial appointments is a judicious blend of merit, seniority, interests of the marginalised and deprived sections of society, women, religions, regions and communities. 

    Consider the question “What are the various norms to be followed by the Collegium for judicial appointments? What are the issues with Collegium system of judicial appointment?”

    Conclusion

    The Collegium has started doing its job. Now, it is time for the Government to match the pace and take the process of appointments to its logical conclusion at the earliest.

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