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Subject: Polity

  • Vacancies in High Courts

    The Supreme Court has asked the government to clarify on the status of 55 recommendations made by the Collegium for judicial appointments to various High Courts six months to nearly a year-and-a-half ago.

    What is the news?

    HC Vacancies

    • The total sanctioned judicial strength in the 25 High Courts is 1,080.
    • However, the present working strength is 661 with 419 vacancies as on March 1.
    • The Supreme Court has been repeatedly conveying to the government its growing alarm at the judicial vacancies in High Courts.
    • Some of these High Courts are functioning only with half their sanctioned judicial strength.
    • On average, the courts suffered at least 40% judicial vacancies.

    What is the 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    • After some judges were superseded in the appointment of the CJI in the 1970s, and attempts made subsequently to effect a mass transfer of High Court judges across the country.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.

    Try this PYQ:

    Q.With reference to the Constitution of India, consider the following statements:

    1. No High Court shall have the jurisdiction to declare any central law to be constitutionally invalid.
    2. An amendment to the Constitution of India cannot be called into question by the Supreme Court of India.

    Which of the statements given above is/are correct?

    (a) 1 only

    (b) 2 only

    (c) Both 1 and 2

    (d) Neither 1 nor 2

     

    Answer: (d)

    The Judges Cases

    • The 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.
    • The 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.
    • 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 is 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

    • Many have faulted the system, not only for its being seen as something unforeseen by the Constitution makers but also for the way it functions.
    • Opaqueness and a lack of transparency, and the scope for nepotism are cited often.
    • 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.
    • 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.
    • Embroilment in public controversies and having relatives practising in the same High Court could be common reasons for transfers.

  • Justice NV Ramana set to take over as 48th CJI

    The Chief Justice of India Sharad Bobde has recommended Justice N.V. Ramana, the senior-most judge of the Supreme Court, as the next top judge from April 24.

    Chief Justice of India

    • The CJI is the chief judge of the Supreme Court of India as well as the highest-ranking officer of the Indian federal judiciary.

    Appointment

    • The Constitution of India grants power to the President to nominate, and with the advice and consent of the Parliament, appoint a chief justice, who serves until they reach the age of 65 or until removed by impeachment.
    • Earlier, it was a convention to appoint seniormost judges.
    • However, this has been broken twice. In 1973, Justice A. N. Ray was appointed superseding 3 senior judges.
    • Also, in 1977 Justice Mirza Hameedullah Beg was appointed as the chief justice superseding Justice Hans Raj Khanna.

    Qualifications to be a SC Judge

    The Indian Constitution says in Article 124 (3) that in order to be appointed as a judge in the Supreme Court of India, the person has to fit in the following criteria:

    • He/She is a citizen of India and
    • has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or
    • has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or
    • is, in the opinion of the President, a distinguished jurist

    Also read:

    https://www.civilsdaily.com/news/explained-collegium-of-judges/

    Functions

    • As head of the Supreme Court, the CJI is responsible for the allocation of cases and appointment of constitutional benches which deal with important matters of law.
    • In accordance with Article 145 of the Constitution and the Supreme Court Rules of Procedure of 1966, the chief justice allocates all work to the other judges.

    On the administrative side, the CJI carries out the following functions:

    • maintenance of the roster; appointment of court officials and general and miscellaneous matters relating to the supervision and functioning of the Supreme Court

    Try this PYQ:

    Q. Who/Which of the following is the custodian of the Constitution of India?

    (a) The President of India

    (b) The Prime Minister of India

    (c) The Lok Sabha Secretariat

    (d) The Supreme Court of India

    Removal

    • Article 124(4) of the Constitution lays down the procedure for removal of a judge of the Supreme Court which is applicable to chief justices as well.
    • Once appointed, the chief justice remains in the office until the age of 65 years. He can be removed only through a process of removal by Parliament as follows:
    • He/She can be removed by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present.
    • The voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.

  • Sixth Schedule areas of Assam

    The Ministry of Home Affairs (MHA) has informed the Lok Sabha that presently, there is no proposal to implement the Panchayat system in the Sixth Schedule areas of Assam.

    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

    What is the Sixth Schedule?

    • The Sixth Schedule consists of provisions for the administration of tribal areas in Assam, Meghalaya, Tripura and Mizoram, according to Article 244 of the Indian Constitution.
    • Passed by the Constituent Assembly in 1949, it seeks to safeguard the rights of the tribal population through the formation of Autonomous District Councils (ADC).
    • ADCs are bodies representing a district to which the Constitution has given varying degrees of autonomy within the state legislature.
    • The governors of these states are empowered to reorganize the boundaries of the tribal areas.
    • In simpler terms, she or he can choose to include or exclude any area, increase or decrease the boundaries and unite two or more autonomous districts into one.
    • They can also alter or change the names of autonomous regions without separate legislation.

    Autonomous districts and regional councils

    • The ADCs are empowered with civil and judicial powers can constitute village courts within their jurisdiction to hear the trial of cases involving the tribes.
    • Governors of states that fall under the Sixth Schedule specify the jurisdiction of high courts for each of these cases.
    • Along with ADCs, the Sixth Schedule also provides for separate Regional Councils for each area constituted as an autonomous region.
    • In all, there are 10 areas in the Northeast that are registered as autonomous districts – three in Assam, Meghalaya and Mizoram and one in Tripura.

    The specified tribal areas are the North Cachar Hills, Karbi Anglong and the Bodoland Territorial Area in Assam, Khasi Hills, Jaintiya Hills and Garo Hills in Meghalaya, Tribal Areas in Tripura, Chakma, Mara and Lai districts in Mizoram.

    • These regions are named as district council of (name of district) and regional council of (name of region).
    • Each autonomous district and regional council consists of not more than 30 members, of which four are nominated by the governor and the rest via elections. All of them remain in power for a term of five years.

  • Corrective voice from Supreme Court against stereotyping of women

    A judgment by the Supreme Court forbidding judges from making gender-stereotypical comments came as a corrective voice from within the highest judiciary.

    Q.Discuss the need for gender sensitization of the judicial institutions.

    What is the news?

    • The judgment came days after the CJI, during a virtual hearing reportedly asked an alleged rapist’s lawyer to enquire whether his client would marry the survivor.
    • His statement coincided with International Women’s Day.
    • Days later, a Bench of Justices A.M. Khanwilkar and S. Ravindra Bhat urged courts to avoid using reasoning/language which diminished a sexual offence and tended to trivialize the survivor.

    What did the Court say?

    • The greatest extent of sensitivity is to be displayed in the judicial approach, language and reasoning adopted by the judge.
    • Even a solitary instance of such order or utterance in court, reflects adversely on the entire judicial system of the country, undermining the guarantee to fair justice to all, and especially to victims of sexual violence.
    • This judgment is one among a series of interventions with which the apex court has clamped down on abuse and sex stereotyping of women.

    No institution is mightier than the modesty of a woman.

    SC against stereotyping

    Some of the notable judgments which have lashed out at sex stereotyping include:

    1. The framing of the Vishaka Guidelines on sexual harassment of women in working places, and
    2. Justice D.Y. Chandrachud’s historic judgment giving women Armed Forces officers’ equal access to Permanent Commission while debunking the establishment’s claim that women were physiologically weaker than men
    3. In the Anuj Garg case, the Supreme Court had rebuked “the notion of romantic paternalism”, which, “in practical effect, put women, not on a pedestal, but in a cage”

    Avoid gender stereotypes such as:

    The courts should desist from expressing any stereotype opinion, in words spoken during proceedings, or in the course of a judicial order, to the effect that

    • women are physically weak and need protection;
    • men are the “head” of the household and should take all the decisions relating to family;
    • women should be submissive and obedient according to our culture;
    • “good” women are sexually chaste;
    • motherhood is the duty and role of every woman and assumptions to the effect that she wants to be a mother;
    • being alone at night or wearing certain clothes make women responsible for being attacked;
    • lack of evidence of physical harm in sexual offence case leads to an inference of consent by the woman.

    Conclusion

    • Stereotyping compromises the impartiality and integrity of the justice system, which can, in turn, lead to miscarriages of justice, including the re-victimization of complainants.
    • Often judges adopt rigid standards about what they consider to be appropriate behaviour for women and penalize those who do not conform to these stereotypes.

    There should be gender sensitization

    • The court-mandated that a module on gender sensitization is included, as part of the foundational training of every judge.
    • This module must aim at imparting techniques for judges to be more sensitive in hearing and deciding cases of sexual assault, and eliminating entrenched social bias, especially misogyny.

  • How amendment bill will affect Delhi’s administration

    The article highlights the issues with the amendment bill introduced by the Centre to clarify the term ‘Government’.

    Why Delhi was made Union Territory: Historical background

    • When the Constitution came into force, there were four kinds of States, called Parts A,B, C and D States.
    • The last two were administered by centrally appointed Chief Commissioners and Lieutenant Governors, with no locally elected Assemblies to aid and advise them.
    • First, it was felt that if Delhi became a part of any constituent State of the Union, that State would sooner or later acquire a predominant position in relation to other States.
    • Second, the need for keeping the National Capital under the control of the Union Government was deemed to be vital in the national interest.
    • Third, it was felt that if Delhi became a full State, the administration of the National Capital would be divided into rigid compartments of the State field and Union field.
    • Conflicts would likely arise in vital matters, particularly if the two governments were run by different political parties.
    • Hence, Delhi was initially made a Part C State.
    • In 1951, a Legislative Assembly was created with an elected Chief Minister.
    • In 1956, when the Constitution of India was amended to implement the provisions of the States Reorganisation Act, only two categories, namely, States and Union Territories remained in the Indian Union.
    • Delhi then became a Union Territory to be administered by an Administrator appointed by the President.
    • Ten years later, the Delhi Administration Act, 1966 provided for a limited representative Government in Delhi through a Metropolitan Council comprising 56 elected Members and five nominated Members.

    Balakrishnan Committee report

    • In 1989, the Balakrishnan Committee recommended that Delhi should continue to be a Union Territory but that there must be a Legislative Assembly and Council of Ministers responsible to the said Assembly with appropriate powers.
    • Based on this report, the Constitution (69th) Amendment Act and the Government of National Capital Territory of Delhi (GNCT) Act, 1991 were passed.
    • They roughly restored the kind of governance system that was offered to Delhi in 1952: a Union Territory with a Legislative Assembly, a Council of Ministers and an elected Chief Minister.
    • This limited reincarnation has continued to hold the field to date, despite several efforts to progress to full or near-statehood.

    LG-Delhi Government conflict

    • A Bench in 2018 ruled over the conflict and said that Parliament envisaged a representative form of Government for the NCT of Delhi.
    • The Bench also said that the Constitution has mandated a federal balance wherein independence of a certain required degree is assured to the State Governments.
    • The remaining issues of governance, especially in the matter of control over Delhi government servants, was remitted to two judges of the Court for further adjudication.
    • In 2019, there was a difference of opinion recorded in separate judgments by the two judges and the matter awaits hearing before a larger Bench. 

    Issues with the Amendment Bill

    • The central government recently introduced a Bill, namely, the Government of National Capital Territory of Delhi (Amendment) Bill, 2021 seeks, inter alia, to clarify the expression ‘Government’ in 2018 Supreme Court judgement.
    • The Bill effectively reduces the elected government to a mere vestigial organ and elevates the centrally appointed LG, to the position of a Viceroy with plenipotentiary powers.
    • It further provides that before taking any executive action to exercise powers of Government, the opinion of Lieutenant Governor shall be obtained on all such matters as may be specified by Lieutenant Governor.
    • The population of Delhi which counts among the highest in the world, will have an unrepresentative administration.
    • It is quite likely that the amendment act will end up being challenged in the constitutional courts.
    • The Supreme Court has already cautioned — “Interpretation cannot ignore the conscience of the Constitution.“

    Consider the question “Examine the issues with Government of National Capital Territory of Delhi (Amendment) Bill, 2021. Do you think that the Bill will avoid the conflict between the LG and the Delhi government?” 

    Conclusion

    The Amendment Bill should be reconsidered given its impact on the administration of the Delhi government.

  • Plea against sale of Electoral Bonds

    CJI has agreed to urgently hear a plea to stay the sale of a new set of electoral bonds on April 1, before Assembly elections in crucial states such as West Bengal and Tamil Nadu.

    Note the denominations of the Electoral Bonds and the issuers.

    What is the news?

    • Data obtained through RTI has shown that illegal sale windows have been opened in the past to benefit certain political parties.
    • There is a serious apprehension that any further sale of electoral bonds before the upcoming State elections would further increase illegal and illicit funding of political parties through shell companies.

    What are Electoral Bonds?

    • The electoral bonds were introduced on January 29, 2018.
    • An electoral bond is like a promissory note that can be bought by any Indian citizen or company incorporated in India from select branches of the State Bank of India.
    • The citizen or corporate can then donate the same to any eligible political party of his/her choice.
    • The bonds are similar to banknotes that are payable to the bearer on demand and are free of interest.
    • An individual or party will be allowed to purchase these bonds digitally or through a cheque.

    How to invest?

    • The bonds will be issued in multiples of Rs 1,000, Rs 10,000, Rs 100,000 and Rs 1 crore (the range of a bond is between Rs 1,000 to Rs 1 crore).
    • These will be available at some branches of SBI.
    • A donor with a KYC-compliant account can purchase the bonds and can then donate them to the party or individual of their choice.
    • Now, the receiver can encash the bonds through the party’s verified account. The electoral bond will be valid only for fifteen days.
    • The 29 specified SBI branches are in cities such as New Delhi, Gandhinagar, Chandigarh, Bengaluru, Bhopal, Mumbai, Jaipur, Lucknow, Chennai, Kolkata and Guwahati.

    Issues with them

    • The plea has argued that the sale of electoral bonds had become an avenue for shell corporations and entities to park illicit money and even proceeds of bribes with political parties.
    • There are documents from the RBI and the Election Commission that say the electoral bonds scheme is detrimental to democracy.

    Govt.’s view: Anonymity of the donor matters

    • The government has defended the scheme in court, saying it allowed anonymity to political donors to protect them from “political victimisation”.
    • The Ministry of Finance’s affidavit in the top court had dismissed the Election Commission’s version that the invisibility afforded to benefactors was a “retrograde step” and would wreck transparency in political funding.
    • The government affidavit had said the clause of secrecy was a product of “well-thought-out policy considerations”.
    • It said the earlier system of cash donations had raised a “concern among the donors that, with their identity revealed, there would be competitive pressure from different political parties receiving donation”.

  • Rajya Sabha passes MTP Bill, 2020

    The Rajya Sabha has passed the Medical Termination of Pregnancy (Amendment) Bill, 2020 that increases the time period within which an abortion may be carried out.

    What are the differing opinions with regards to the Termination of Pregnancy (MTP) Amendment Bill, 2020? Discuss.

    MTP Bill, 2020

    The MTP Bill was passed in Lok Sabha in March 2020. Its salient features included:

    • Proposing requirement for the opinion of one provider for termination of pregnancy, up to 20 weeks of gestation and introducing the requirement of the opinion of two providers for termination of pregnancy of 20-24 weeks of gestation.
    • Enhancing the upper gestation limit from 20 to 24 weeks for special categories of women which will be defined in the amendments to the MTP Rules and would include ‘vulnerable women including survivors of rape, victims of incest and other vulnerable women (like differently-abled women, Minors) etc.
    • Upper gestation limit not to apply in cases of substantial foetal abnormalities diagnosed by Medical Board. The composition, functions and other details of the Medical Board to be prescribed subsequently in Rules under the Act.
    • Anonymity of the person: The name and other particulars of a woman whose pregnancy has been terminated shall not be revealed except to a person authorised in any law for the time being in force.

    Benefits sought with the bill

    • It is seen as a step towards the safety and well-being of the women and many women will be benefitted from this.
    • Recently several petitions were received by the Courts seeking permission for aborting pregnancies at a gestational age beyond the present permissible limit on grounds of foetal abnormalities or pregnancies due to sexual violence faced by women.
    • The proposed increase in gestational age will ensure dignity, autonomy, confidentiality and justice for women who need to terminate the pregnancy.

    Flaws in the bill

    • The Bill allows abortion after 24 weeks only in cases where a Medical Board diagnoses substantial foetal abnormalities.
    • This implies that for a case requiring abortion due to rape, that exceeds 24-weeks, the only recourse remains through a Writ Petition.
    • The Bill does not specify the categories of women who may terminate pregnancies between 20-24 weeks and leaves it to be prescribed through Rules.
    • The Act (and the Bill) requires an abortion to be performed only by doctors with a specialization in gynaecology or obstetrics.
    • As there is a 75% shortage of such doctors in community health centres in rural areas, pregnant women may continue to find it difficult to access facilities for safe abortions.

    Key Issues and Analysis

    • There are differing opinions with regard to allowing abortions. One opinion is that terminating a pregnancy is the choice of the pregnant woman and a part of her reproductive rights.
    • The other is that the state has an obligation to protect life, and hence should provide for the protection of the foetus.
    • Across the world, countries set varying conditions and time limits for allowing abortions, based on foetal health, and risk to the pregnant woman.
    • Several Writ Petitions have been filed by women seeking permission to abort pregnancies beyond 20-weeks due to foetal abnormalities or rape.

  • Anti-defection law: when a nominated MP loses RS membership

    A nominated MP had to resign from Rajya Sabha before the completion of his term due to the Anti-defection law.

    The story of Nominated Members

    • During the making of the Constitution, members of the Constituent Assembly felt that Rajya Sabha should have members who might not win elections but will bring knowledge and expertise to discussions.
    • It led to Rajya Sabha having 12 nominated members from different walks of life.
    • The broad criterion for their nomination is that they should have distinguished themselves in fields like literature, science, art, and social service.
    • The President nominates such individuals as recommended by the Centre.
    • Nominated members have the same rights and privileges as elected members, with one notable difference — they cannot vote in the election of the President.

    Anti-defection law

    • In 1985 the Tenth Schedule, popularly known as the anti-defection law, was added to the Constitution.
    • But its enactment was catalyzed by the political instability after the general elections of 1967.
    • This was the time when multiple state governments were toppled after MLAs changed their political loyalties.
    • The purpose of the 1985 Constitution Amendment was to bring stability to governments by deterring MPs and MLAs from changing their political parties on whose ticket they were elected.
    • The penalty for shifting political loyalties is the loss of parliamentary membership and a bar on becoming a minister.

    Try this PYQ:

    Consider the following statements:

    1. The Chairman and the Deputy Chairman of the Rajya Sabha are not the members of that House.
    2. While the nominated members of the two Houses of the Parliament have no voting right in the presidential election, they have the right to vote in the election of the Vice President.

    Which of the statements given above is/are correct?

    (a) 1 only

    (b) 2 only

    (c) Both 1 and 2

    (d) Neither 1 nor 2

    What invites defection?

    The law covers three types of scenarios with respect to MP switching parties.

    1. The first is when a member elected on the ticket of a political party “voluntarily gives up” membership of such a party or votes in the House contrary to the wishes of the party.
    2. The second possibility is when an MP who has won his or her seat as an independent candidate after the election joins a political party. In both these instances, the MP lose the seat in the House on changing (or joining) a party.
    3. The third scenario relates to nominated MPs. In their case, the law specifies that within six months of being nominated to the House, they can choose to join a political party.

    Why is a nominated member given 6month time?

    • The time is given so that if a nominated MP is not a member of a political party, they can decide to join one if they want.
    • But if they don’t join a political party during the first six months of their tenure, and join a party thereafter, then they lose their seat in Parliament.

  • National Capital Territory of Delhi (Amendment) Bill, 2021

    The Ministry of Home Affairs (MHA) moved the NCT of Delhi (Amendment) Bill, 2021 to the Lok Sabha where it proposed that “government” in Delhi means the Lieutenant Governor of Delhi.

    What is the news?

    • The Bill gives discretionary powers to the L-G of Delhi even in matters where the Legislative Assembly of Delhi is empowered to make laws.
    • The Delhi state govt has criticized the bill saying that it seeks to drastically curtail powers of the elected government”, which is “against” the Supreme Court judgment of 2018.

    NCT of Delhi (Amendment) Bill, 2021

    • Among the major proposed amendments, one makes it explicitly clear that the term “government” in any law made by the Legislative Assembly shall mean the L-G.
    • This, essentially, gives effect to the former L-G 2015 assertion that “Government means the Lieutenant Governor of the NCT of Delhi appointed by the President under Article 239 and designated as such under Article 239 AA of the Constitution”.
    • The Bill adds that the L-G’s opinion shall be obtained before the government takes any executive action based on decisions taken by the Cabinet or any individual minister.

    What purpose does the 1991 Act serve?

    • Delhi’s current status as a UT with a Legislative Assembly is an outcome of the 69th Amendment Act through which Articles 239AA and 239BB were introduced in the Constitution.
    • The Act was passed simultaneously to supplement the constitutional provisions relating to the Assembly and the Council of Ministers in the national capital.
    • For all practical purposes, it outlined the powers of the Assembly, the discretionary powers enjoyed by the L-G, and the duties of the CM with respect to the need to furnish information to the L-G.

    What is the 2018 Supreme Court Verdict?

    • In its 2018 verdict, the five-judge Bench had held that the LG’s concurrence is not required on issues other than police, public order and land.
    • It had added that decisions of the Council of Ministers will, however, have to be communicated to the LG.
    • The L-G was bound by the aid and advice if the council of ministers, it had said.
    • The Bench of then CJI status of the LG of Delhi is not that of a Governor of a State, rather he remains an Administrator, in a limited sense, working with the designation of Lieutenant Governor”.
    • It had also pointed out that the elected government must keep in mind that Delhi is not a state.

    Consider the question “What are the parameters laid down by the Supreme Court in the Government of NCT of Delhi vs. Union of India (2018) to avoid the conflict between Lt. Governor and the Delhi Government? Also examine the scope of referring any matter to the consideration of the President by the Lt. Governor.”

    What will change if the amendments are cleared by Parliament?

    • Encouraged by the Supreme Court verdict, the elected government had stopped sending files on executive matters to the L-G before the implementation of any decision.
    • It has been keeping the L-G abreast of all administrative developments, but not necessarily before implementing or executing any decision.
    • But the amendment, if cleared, will force the elected government to take the L-G’s advice before taking any action on any cabinet decision.
    • The Bill seeks to bar the Assembly or its committees from making rules to take up matters concerning day-to-day administration, or to conduct inquiries in relation to administrative decisions.

    Does the L-G enjoy no discretionary power under the current arrangement?

    • The L-G does have the power to refer any matter, over which there is a disagreement with the elected government, to the President under Article 239AA (4).
    • The Delhi Law Secretary had in 2019 written in an internal memo that the elected government cannot use the SC verdict to keep the L-G in the dark about its decisions.
    • But the SC had also categorically pointed out that the L-G should not act in a mechanical manner without due application of mind so as to refer every decision of the CM to the President.

    What are the state government’s fears?

    • From 2015 to 2018, the government was engaged in a constant battle with the Centre over policy decisions and the powers of the L-G with the elected government.
    • The SC judgment gave the Delhi govt a freer hand in terms of policy decisions.
    • The government insiders have maintained that it was because of the judgment that the government was able to clear policy decisions like giving free power to those using under 200 units, free bus rides for women.
    • The amendments will have far-reaching implications — beyond just the tussle between any political parties.

    Back2Basics: Special Status for New Delhi

    • Article 239AA of the Constitution of India granted Special Status to Delhi among Union Territories (UTs) in the year 1991 through the 69th constitutional amendment.
    • It provided a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers.
    • That’s when Delhi was named as the National Capital Region (NCT) of Delhi.
    • As per this article – Public Order, Police & Land in NCT of Delhi fall within the domain and control of Central Government which shall have the power to make laws on these matters.
    • For remaining matters of State List or Concurrent List, in so far as any such matter is applicable to UTs, the Legislative Assembly shall have the power to make laws for NCT of Delhi.

  • Bureaucrats cannot be State Election Commissioners: SC

    The Supreme Court gas held that independent persons and not bureaucrats should be appointed State Election Commissioners.

    No bureaucrats in SEC

    • The judgment came on an appeal against an order of the Bombay High Court which had set aside the election notification issued by the Goa State Election Commission in some municipalities.
    • Justice F. Nariman, in a judgment, said giving government employees the additional charge of State Election Commissioners is a “mockery of the Constitution”.
    • It said government employees holding the post of State Election Commissioners as additional charge should give up the post.
    • The Supreme Court said its direction should be followed strictly.

    Why such a move?

    • Under the constitutional mandate, it is the duty of the State to not interfere with the functioning of the State Election Commission.
    • The independence of Election Commissions cannot be compromised at any cost, the Bench said.

    State Election Commission

    • Under the 73rd and 74th constitutional amendment acts, State Election Commissions were created for every state to conduct elections to panchayats and municipalities.
    • The SECs came into as envisaged in Articles 243K and 243ZA of the Constitution of India.
    • The above Articles provide that the superintendence, direction and control of the preparation of electoral rolls for, and the Conduct of all elections to the Panchayats and Municipalities shall vest in the SEC.
    • The Constitution itself has facilitated provision for smooth, free and fair, regular elections to the Local bodies and has, therefore, entrusted the SEC with the responsibility for holding such elections.
    • In the domain of the elections to the local bodies, the SEC functions independently and has the same powers and duties as that of the Election Commission of India.

    Try this PYQ:

    Q.The Constitution (Seventy-Third Amendment) Act, 1992, which aims at promoting the Panchayati Raj Institutions in the country, provides for which of the following?

    1. Constitution of District Planning Committees.
    2. State Election Commissions to conduct all panchayat elections.
    3. Establishment of State Finance Commissions.

    Select the correct answer using the codes given below:

    (a) Only 1

    (b) 1 and 2 only

    (c) 2 and 3 only

    (d) 1, 2 and 3

    The Election Commissioner

    • The State Election Commissioner is appointed by the Governor.
    • It has the status, salary and allowance of a Judge of a High Court and cannot be removed from office except in the like manner and on the like grounds as a Judge of a High Court.
    • The Election Commissioner is also the Chairman of the Delimitation Commission.

    Its duties

    • The first and foremost duty of the SEC is to prepare the elector rolls of Panchayats, Municipalities and Municipal Corporation and conduct their elections.

    In addition to the above functions, the State Election Commission has also the following functions:

    1. Conduct of elections to the offices of the Mayor/Chairman/President/Deputy Mayor/Vice Chairman/Vice President and the no-confidence motion against them.
    2. Conduct of the Elections to various Standing Committees and their Chairpersons
    3. Determination of disqualification of elected members/Councilors.
    4. Determination of disqualification of elected members on the ground of defection.

    Back2Basics: Election Commission of India (ECI)

    • ECI is an autonomous and permanent constitutional authority responsible for administering election processes in India at the national and state level.
    • The body administers elections to the Lok Sabha, Rajya Sabha, State Legislative Assemblies, State Legislative Councils and the offices of the President and Vice President of the country.
    • The EC operates under the authority of the Constitution per Article 324 and subsequently enacted the Representation of the People Act.
    • The commission has the powers under the Constitution, to act in an appropriate manner when the enacted laws make insufficient provisions to deal with a given situation in the conduct of an election.
    • Being a constitutional authority, EC is amongst the few institutions which function with both autonomy and freedom, along with the country’s higher judiciary, the UPSC and the CAG.