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Subject: Polity

  • What is Recusal of Judges?

    A Justice of the Supreme Court has recused himself from hearing a petition that sought action against the Andhra Pradesh CM for levelling political allegations against an AP High Court judge.

    Can you list down some basic principles of judicial conduct?

    Independence, Impartiality, Integrity, Propriety, Competence and diligence and Equality are some of them as listed under the Bangalore Principles of Judicial Conduct.

    What is the Recusal of Judges?

    • Recusal is the removal of oneself as a judge or policymaker in a particular matter, especially because of a conflict of interest.
    • Recusal usually takes place when a judge has a conflict of interest or has a prior association with the parties in the case.
    • For example, if the case pertains to a company in which the judge holds stakes, the apprehension would seem reasonable.
    • Similarly, if the judge has, in the past, appeared for one of the parties involved in a case, the call for recusal may seem right.
    • A recusal inevitably leads to delay. The case goes back to the Chief Justice, who has to constitute a fresh Bench.

    Rules on Recusals

    • There are no written rules on the recusal of judges from hearing cases listed before them in constitutional courts. It is left to the discretion of a judge.
    • The reasons for recusal are not disclosed in an order of the court. Some judges orally convey to the lawyers involved in the case their reasons for recusal, many do not. Some explain the reasons in their order.
    • The decision rests on the conscience of the judge. At times, parties involved raise apprehensions about a possible conflict of interest.

    Issues with recusal

    • Recusal is also regarded as the abdication of duty. Maintaining institutional civilities are distinct from the fiercely independent role of the judge as an adjudicator.
    • In his separate opinion in the NJAC judgment in 2015, Justice Kurian Joseph highlighted the need for judges to give reasons for recusal as a measure to build transparency.
    • It is the constitutional duty, as reflected in one’s oath, to be transparent and accountable, and hence, a judge is required to indicate reasons for his recusal from a particular case, he ruled.

  •  Assam-Mizoram Boundary Dispute

    The recent violence and tension on the Assam-Mizoram border underline the differences the two States have had since 1972 when Mizoram was carved out of Assam as a Union Territory.

    Try answering this:

    Q.Assam has had boundary problems with almost all of its north-eastern neighbours. Discuss.

    *Also note the states bordering Assam.

    What is the Dispute?

    • Mizoram was carved out of Assam as a Union Territory in 1972. In 1987, it became a full-fledged state.
    • The two states have sparred over where the border lies in the past, leading to the occasional violence.
    • The disagreement stems from differing views on which border demarcation to follow.
    • Mizoram’s perception of the border is based on an 1875 notification that flows from the Bengal Eastern Frontier Regulation Act of 1873.
    • The Act demarcated the Lushai Hills from the plains and valleys in the North East, restricting free travel between the two zones. The hills were deemed to be “excluded areas”.
    • Assam, for its part, goes by a 1933 notification by the state government that demarcated the Lushai Hills, as Mizoram was then known, from the province of Manipur.

    The Assamese problem

    • Assam has had boundary problems with all its north-eastern neighbours, except Manipur and Tripura that had existed as separate entities.
    • The primary reason is that the other States, a part of Assam during the British rule, have contested the boundaries since they became States, beginning with Nagaland in 1963.
    • Assam has accepted several recommendations of border commissions set up by the Supreme Court, but other States have been sticking to “historical boundaries” that go back to the period before 1826.
    • However, the border residents have to bear the brunt of the unrest unless an acceptable solution is arrived at.

  • Issues with the regulation of digital media by government

    The article deals with the recent decision of the government to regulate digital media through the Ministry of Information and Broadcasting and issues with it.

    Regulating the press

    • Recently, government put the online news and current affairs portals along with “films and audio-visual programmes made available by online content providers” under the Ministry of Information and Broadcasting.
    • Through the move, government is clubbing the only sector of the media which has pre-censorship, namely films  with the news media which has so far, at least officially, not been subject to pre-censorship.
    • The move hijacks matters before the Supreme Court of India relating to freedom of the press and freedom of expression to arm the executive with control over the free press, thereby essentially making it unfree.
    • It also hijacks another public interest litigation in the Supreme Court relating to content on “Over The Top” (OTT) platforms not being subject to regulation or official oversight to bring that sector too under the Ministry of Information and Broadcasting.
    • The move creates an artificial distinction between the new-age digital media which is the media of the future, the media of the millennial generation — and the older print and TV news media.

    Reasons given by the government and issues with it

    • The explanation given is that the print media have the oversight of the Press Council of India and the TV media of the News Broadcasters Association (NBA).
    • Therefore the digital media needed a regulatory framework — no less than that of the Ministry of Information and Broadcasting.
    • However, there is no comparison between the Press Council of India and the NBA as professional bodies on the one hand and the Ministry of Information and Broadcasting on the other.
    • The fate of the digital media under the control of the Ministry of Information and Broadcasting leaves little scope for hope.

    Consider the question “Regulation of digital media while solving some chronic issues gives rise to concerns over the freedom of press and expression. In light of this, examine the need for regulation of digital media by government and issues in it.”

    Conclusion

    The government regulations would be counterproductive for both the media practitioner and the media entrepreneur and for the startups that have been the new vibrant face of contemporary journalism.

  • Contempt of Court and A-G’s consent

    Attorney-General gave his consent for the initiation of criminal contempt proceedings against the stand-up comedian for his tweets following a Supreme Court’s decision to grant interim bail to a news anchor.

    Note important power, functions and limitations of AGI. A bluff can be created with the dicey statements in the prelims.

    Also read:

    [Burning Issue] Free Speech Vs. Contempt of Court

    What is Contempt of Court?

    • According to the Contempt of Courts Act, 1971, contempt of court can either be civil contempt or criminal contempt.
    • Civil contempt means wilful disobedience of any judgment, decree, direction, order, writ or another process of a court, or wilful breach of an undertaking given to a court.
    • Criminal contempt, on the other hand, is attracted by the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which:

    (i) Scandalizes or tends to scandalise, or lowers or tends to lower the authority of, any court; or

    (ii) Prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or

    (iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner

    • In 2006, the government brought in an amendment, which now provides “truth” as defence provided it is bona fide and in the public interest.

    Why is the A-G’s consent needed to initiate contempt proceedings?

    • In cognizance of criminal contempt, The Contempt of Courts Act, 1971 has a provision under Subsection 1 of Section 15.
    • It reads that- in the case of criminal contempt, (other than contempt in the face of the Supreme Court or a High Court), the related court may take action on its own motion or on a motion made by (a) the Advocate-General, or (b) any other person, with the consent in writing of the Advocate-General.

    Back2Basics: Attorney General of India (AGI)

    • The AGI is the Indian government’s chief legal advisor and is a primary lawyer in the Supreme Court of India.
    • They can be said to be the advocate from the government’s side.
    • They are appointed by the President of India on the advice of Union Cabinet under Article 76(1) of the Constitution and holds office during the pleasure of the President.
    • They must be a person qualified to be appointed as a Judge of the Supreme Court ( i.e. a judge of some high court for five years or an advocate of some high court for ten years or an eminent jurist, in the opinion of the President and must be a citizen of India.).

    Functions and duties

    • The AGI is necessary for advising the Government of India on legal matters referred to them.
    • They also perform other legal duties assigned to them by the President.
    • The AGI has the right of audience in all Courts in India as well as the right to participate in the proceedings of the Parliament, though not to vote.
    • The AGI appears on behalf of Government of India in all cases (including suits, appeals and other proceedings) in the Supreme Court in which GoI is concerned.
    • They also represent the Government of India in any reference made by the President to the Supreme Court under Article 143 of the Constitution.
    • The AG is assisted by a Solicitor General and four Additional Solicitors General.

  • Issues with legal language in India

    Context

    •  Recently, a PIL was filed in the Supreme Court regarding the use of legal language.
    • Reacting to the plea, the Supreme Court has asked the Ministry of Law and Justice and Bar Council to respond.

    Wha the PIL is about?

    • The PIL (Subhash Vijayran vs Union of India) wants the legislature and executive to use plain English in drafting laws, the Bar Council to introduce plain English in law curricula and the Supreme Court to only allow concise and precise pleadings.
    • He begins the synopsis to the writ petition in the following way. “The writing of most lawyers is: (1) wordy, (2) unclear, (3) pompous and (4) dull.

    Way forward

    • When asking the Ministry of Law and Justice and Bar Council to respond, the Chief Justice of India referred to Anthony Burgess’s book (1964) Language Made Plain.
    • George Orwell set out six principles, which could be used while drafting.
    • Copy editors routinely use these principles, but not the judiciary.
    • The Vidhi Centre for Legal Policy produced a manual on plain language drafting in 2017.

    Conclusion

    The Ministry of Law and Justice make use of the opportunity provided by the PIC to come up with the set of principles to make the legal language easier for all.

  • 15th Finance Commission submits report to President

    The 15th Finance Commission, chaired by NK Singh, on Monday submitted its final report for 2021-22 to 2025-26 to the President.

    Try this PYQ:

    With reference to the Finance Commission of India, which of the following statements is correct?

    (a) It encourages the inflow of foreign capital for infrastructure development

    (b) It facilitates the proper distribution of finances among the Public Sector Undertakings

    (c) It ensures transparency in financial administration

    (d) None of the statements (a), (b) and (c) given above is correct in this context

    Key recommendations that would feature in its final report:

    • A separate defence and national security: The viability of creating a separate defence and national security fund as suggested by the Centre.
      • States would keenly await these recommendations as it may translate into a lower share of funds for them.
    • GST compensation dues to States: The panel is also expected to factor in unpaid GST compensation dues to States for this year, while working out State’s revenue flow calculations for the years beyond 2022.

    Formula that decides a State’s share:

    Weight in 15th FC Parameters Weight in 14th FC
    15 (2011 Census) Population 27.5 (17.5 – 1972, 10 – 2011 Census)
    15 Area 15
    10 Forest and Ecology 7.5
    45 Income Distance 50
    12.5 Demographic Performance –
    2.5 Tax Effort

    What is the Finance Commission?

    • The Finance Commission (FC) was established by the President of India in 1951 under Article 280 of the Indian Constitution.
    • It was formed to define the financial relations between the central government of India and the individual state governments.
    • The Finance Commission (Miscellaneous Provisions) Act, 1951 additionally defines the terms of qualification, appointment and disqualification, the term, eligibility and powers of the Finance Commission.
    • As per the Constitution, the FC is appointed every five years and consists of a chairman and four other members.
    • Since the institution of the First FC, stark changes in the macroeconomic situation of the Indian economy have led to major changes in the FC’s recommendations over the years.

    Constitutional Provisions

    Several provisions to bridge the fiscal gap between the Centre and the States were already enshrined in the Constitution of India, including Article 268, which facilitates levy of duties by the Centre but equips the States to collect and retain the same.

    Article 280 of the Indian Constitution defines the scope of the commission:

    1. The President will constitute a finance commission within two years from the commencement of the Constitution and thereafter at the end of every fifth year or earlier, as the deemed necessary by him/her, which shall include a chairman and four other members.
    2. Parliament may by law determine the requisite qualifications for appointment as members of the commission and the procedure of selection.
    3. The commission is constituted to make recommendations to the president about the distribution of the net proceeds of taxes between the Union and States and also the allocation of the same among the States themselves. It is also under the ambit of the finance commission to define the financial relations between the Union and the States. They also deal with the devolution of unplanned revenue resources.

    Why need the Finance Commission?

    • As a federal nation, India suffers from both vertical and horizontal fiscal imbalances.
    • Vertical imbalances between the central and state governments result from states incurring expenditures disproportionate to their sources of revenue, in the process of fulfilling their responsibilities.
    • However, states are better able to gauge the needs and concerns of their inhabitants and therefore more efficient at addressing them.
    • Horizontal imbalances among state governments result from differing historical backgrounds or resource endowments and can widen over time.
    • The first FC was established in 1951 by Dr B.R. Ambedkar, the then-incumbent law minister, to address these imbalances.

    Important functions

    • Distribution of net proceeds of taxes between Center and the States, to be divided as per their respective contributions to the taxes.
    • Determine factors governing Grants-in-Aid to the states and the magnitude of the same.
    • To make recommendations to the president as to the measures needed to augment the Fund of a State to supplement the resources of the panchayats and municipalities in the state on the basis of the recommendations made by the finance commission of the state.
    • Any other matter related to it by the president in the interest of sound finance.

    Members of the Finance Commission

    • The Finance Commission (Miscellaneous Provisions) Act, 1951 was passed to give a structured format to the finance commission and to bring it to par with world standards.
    • It laid down rules for the qualification and disqualification of members of the commission, and for their appointment, term, eligibility and powers.
    • The Chairman of a finance commission is selected from people with experience of public affairs. The other four members are selected from people who:
    1. Are, or have been, or are qualified, as judges of a high court,
    2. Have knowledge of government finances or accounts, or
    3. Have had experience in administration and financial expertise; or
    4. Have special knowledge of economics

  • Comparing the mandates of election commissions of India and the U.S.

    In the recently concluded presidential election in the U.S., the delay in announcing the result and issue of denial of the election results by the incumbent has brought into focus the role played by flaws in the Americal democratic system in the conduct of the election. This article compares the powers of the elections bodies in the U.S. and India.

    Powers of ECI

    • Indian Constitution has given the ECI enormous power to be exercised during the course of elections, and strictly on other election-related matters.
    • By virtue of being the custodian of the electoral roll, all matters related to keeping the roll updated, fall under the ECI’s domain.
    • Even the higher judiciary does not interfere during the course of the election process.
    • Our Constitution’s fathers decided to limit the role of the judiciary in India to the post-election period, when election petitions may be filed.
    • This was done to avoid the impeding of the election process and delay election results interminably.

    Comparing the powers

    • The U.S. Federal Election Commission has a much narrower mandate than its Indian equivalent-Election Commission of India.
    • The Federal Election Commission was established comparatively recently — 1975, with the special mandate to regulate campaign finance issues.
    • As a watchdog, it is meant to disclose campaign finance information, to enforce the law regarding campaign contributions, and oversee public funding of the presidential election.
    • The Federal Election Commission is led by six Commissioners.
    • These six posts are supposed to be equally shared by Democrats and Republicans, and too have to be confirmed by the Senate.
    • This leads to decision making divided on partisan lines.

    What India can learn From the election process in the U.S.

    • In the 2016 U.S. election, almost a quarter of the votes counted arose from postal and early balloting.
    • In India we have confined postal ballots to only a few categories, of largely government staff (for example those on election duty) as well as the police or armed forces.
    • In these difficult times of the novel coronavirus pandemic, we need to widen this base to include all senior citizens and anyone else who may find it convenient to cast their vote early.

    Consider the question “Powers of the Election Commission of India are wider when compared with its counterpart in the U.S. In light of this, compare the powers of the two bodies and how these wide powers have enabled smooth power transfers in India.” 

    Conclusion

    In its functioning, Election Commission of India has broad powers as compared to its counterpart in the U.S. which has helped India see a smooth power transfer from the first election in India in 1951-52 and every single election since.

  • Supreme Court’s guidelines for deserted Wives and Children

    The Supreme Court has laid down uniform and comprehensive guidelines for family courts, magistrates and lower courts to follow while hearing the applications filed by women seeking maintenance from their estranged husbands’.

    Debate: Alimony as a right of women or a feminist taboo

    Why such a judgement?

    • Usually, maintenance cases have to be settled in 60 days, but they take years, in reality, owing to legal loopholes.
    • The top court said women deserted by husbands are left in dire straits, often reduced to destitution, for lack of means to sustain themselves and their children.
    • Despite a plethora of maintenance laws, women were left empty-handed for years, struggling to make ends meet after a bad marriage.

    What did the Court say?

    • The Supreme Court has held that deserted wives and children are entitled to alimony/maintenance from the husbands from the date they apply for it in a court of law.
    • To ensure that judicial orders for grant of maintenance are duly enforced by husbands, the court said a violation would lead to punishments such as civil detention and even attachment of the property of the latter.
    • The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife, if he is able-bodied and has educational qualifications, the court declared.
    • Both the applicant wife and the respondent-husband have to disclose their assets and liabilities in a maintenance case.
    • Other factors such as “spiralling inflation rates and high costs of living” should be considered, but the wife should receive alimony which fit the standard of life she was used to in the matrimonial home.

    Covering expenses

    • The expenses of the children, including their education, basic needs and other vocational activities, should be factored in by courts while calculating the alimony.
    • Education expenses of the children must be normally borne by the father. If the wife is working and earning sufficiently, the expenses may be shared proportionately between the parties.

    Permanent alimony

    • The court opined it would not be equitable to order a husband to pay his wife permanent alimony for the rest of her life, considering the fact that in contemporary society marriages do not last for a reasonable length of time.
    • Anyway, the court said, the duration of marriage should be accounted for while determining the permanent alimony.

  • Pardoning Powers of Governor

    The Supreme Court has recently said that the investigation into the conspiracy behind Ex-PMs assassination in 1991 need not deter the Governor from deciding the plea for pardon of convicts.

    What did the court say exactly?

    • The court made it clear that it was reluctant to exercise its jurisdiction when the Governor was already seized of convict’s plea for a pardon under Article 161 of the Constitution.

    Try this PYQ now:

    Q.Which of the following are the discretionary powers given to the Governor of a State?

    1. Sending a report to the President of India for imposing the President’s rule
    2. Appointing the Ministers
    3. Reserving certain bills passed by the State Legislature for consideration of the President of India
    4. Making the rules to conduct the business of the State Government

    Select the correct answer using the code given below:

    (a) 1 and 2 only

    (b) 1 and 3 only

    (c) 2, 3 and 4 only

    (d) 1, 2, 3 and 4

    Pardoning Powers of Governor

    • Article 161 deals with the Pardoning Power of the Governor.
    • The Governor can grant pardons, reprieves, respites and remissions of punishments or suspend, remit and commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the state extends.
    • The Governor cannot Pardon a Death Sentence. (The President has the power of Pardon a death Sentence).
    • The Governor cannot grant pardon, reprieve, respite, suspension, remission or commutation in respect to punishment or sentence by a court-martial. However, the President can do so.

    Back2Basics:

    • Pardon: means completely absolving the person of the crime and letting him go free. The pardoned criminal will be like a normal citizen.
    • Commutation: means changing the type of punishment given to the guilty into a less harsh one, for example, a death penalty commuted to a life sentence.
    • Reprieve: means a delay allowed in the execution of a sentence, usually a death sentence, for a guilty person to allow him some time to apply for Presidential Pardon or some other legal remedy to prove his innocence or successful rehabilitation.
    • Respite: means reducing the quantum or degree of the punishment to a criminal in view of some special circumstances, like pregnancy, mental condition etc.
    • Remission: means changing the quantum of the punishment without changing its nature, for example reducing twenty-year rigorous imprisonment to ten years.

  • Nyay Kaushal E-resource Centre

    CJI has inaugurated the first-ever e-resource centre and virtual court for traffic and transport to enable speedy justice for litigants, called ‘Nyay Kaushal’, at Nagpur.

    Must read edition:

    [Burning Issue] Judiciary in Times of COVID-19 Outbreak

    Nyay Kaushal Centre

    • It is a first of its kind e-resource centre in India that will facilitate electronic filing of cases in the Supreme Court, High Courts and district courts across the country.
    • It is meant to be a step at mitigating various inequalities, being connected to the Supreme Court, the High Courts and the Taluka Courts.
    • It will provide the easiest way of filing court matters by utilising technology. It will provide benefits in saving time, avoidance of exertion, travelling long distances, and a saving in costs.
    • The virtual court will be working from Katol in Nagpur district.

    It’s working

    • The virtual court can deal with all traffic challan cases from every corner of Maharashtra online.
    • It will be possible for the litigants to pay the fine and get the traffic challan case disposed of with the click of a button on a smartphone or a computer.

    Why need such a mechanism?

    • The biggest problem that came with the pandemic was that access to justice became conditional on access to technology.
    • This has ended up creating a divide between the ones who can afford technology and ones who cannot.
    • With the aid of virtual courts, our system of justice does not suffer and the rule of law continues to be maintained.