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Subject: Polity

  • Supreme Court sets timeline for Govt to clear judges’ names

    Why the timeline

    • The Supreme Court laid down a timeline for the Centre to clear names recommended by the High Court Collegiums.
    • The Bench noted that there are almost 40% vacancies in the High Courts, with many of the larger High Courts working under 50% of their sanctioned strength.
    • Against the sanctioned strength of 1,080 High Court Judges, 664 have been appointed but 416 vacancies remain. 
    • The Bench rejected the contention that laying down a timeline “would be contrary to” certain “observations made in the Third Judges case”, saying the “observations” referred to “deal with the judicial review of a particular appointment and not such aspects of the appointment process like delay”.

    The timeline

    • The Intelligence Bureau (IB) should submit its report/ inputs within 4 to 6 weeks from the date of recommendation of the High Court Collegium, to the Central Government.
    • It would be desirable that the Central Government forward the file(s)/ recommendations to the Supreme Court within 8 to 12 weeks from the date of receipt of views from the State Government and the report/ input from the IB.
    • It would be for the Government to thereafter proceed to make the appointment immediately on the aforesaid consideration and undoubtedly, if Government has any reservations on suitability or in public interest, within the same period of time it may be sent back to the Supreme Court Collegium with the specific reasons for reservation recorded.
    • If the Supreme Court Collegium, after consideration of the aforesaid inputs, still reiterates the recommendation(s) unanimously…, such appointment should be processed and appointment should be made within 3 to 4 weeks.

  • Issues with ordinance in India

    Repromulgation of ordinances raises several questions and it also goes against the Supreme Court judgement. The article explains the issues involved.

    Ordinance route and issues with it

    • The central government has repromulgated the ordinance that establishes a commission for air quality management in the National Capital Region.
    • This raises questions about the practice of issuing ordinances to make law, and that of re-issuing ordinances without getting them ratified by Parliament.
    • Law making is a legislative function, this power is provided for urgent requirements, and the law thus made has an automatic expiry at the end of six weeks from the time Legislature next meets.

    How frequent is the use of ordinance route

    • In the 1950s, central ordinances were issued at an average of 7.1 per year.
    • The number peaked in the 1990s at 19.6 per year, and declined to 7.9 per year in the 2010s. 
    • The last couple of years has seen a spike, 16 in 2019, 15 in 2020, and four till now this year.
    • States have also been using the ordinance route to enact laws.
    • For example, in 2020, Kerala issued 81 ordinances, while Karnataka issued 24 and Maharashtra 21.
    • Kerala has also repromulgated ordinances.

    What the Supreme Court said

    • The issue was brought up in the Supreme Court through a writ petition by D.C. Wadhwa.
    • He found out that Bihar had issued 256 ordinances between 1967 and 1981, of which 69 were repromulgated several times, including 11 which were kept alive for more than 10 years.
    • A five-judge Constitution Bench of the Supreme Court, in 1986, ruled that repromulgation of ordinances was contrary to the Constitutional scheme.
    • The judgment did not stop the practice.
    • Instead, the Centre also started to follow the lead of Bihar.
    • For example, in 2013 and 2014, the Securities Laws (Amendment) ordinance was promulgated three times.
    • Similarly, an ordinance to amend the Land Acquisition Act was issued in December 2014, and repromulgated twice – in April and May 2015.
    • The matter came up again in the Supreme Court in  2017, a seven-judge Constitution Bench declared this practice to be unconstitutional and declared it to be a fraud on the Constitution.
    • Even this judgment has been ignored.
    • The Indian Medical Council Amendment Ordinance was issued in September 2018, and reissued in January 2019.

    Way forward

    • Ordinances are to tackle exigencies when the legislature is not in session, and expire at the end of six weeks of the next meeting of the legislature.
    • This time period is given for the legislature to decide whether such a law is warranted.
    • Repromulgation is not permitted as that would be a usurpation of legislative power by the executive.
    • As governments, both at the Centre and States, are violating this principle, the legislatures and the courts should check the practice.
    • By not checking this practice, the other two organs are also abdicating their responsibility to the Constitution.

    Consider the question “What are the issues with the repormulgation of ordinances by the government? Suggest the measures to deal with the issue.”

    Conclusion

    As the Supreme Court said, repromulgation would most certainly be a colourable exercise of power for the Government and it needs to be avoided.

  • The Election Commission of India cannot be a super government

    The article highlights the issue of lack of clarity on the extent of the power of the Election Commission of India.

    Where ECI derives its power from

    • Supreme Court held in Mohinder Singh Gill vs Chief Election Commissioner that Article 324 contains plenary powers to ensure free and fair elections.
    • These plenary powers are vested in the ECI which can take all necessary steps to achieve this constitutional object.
    • Thus, the model code of conduct has been issued in exercise of its powers under Article 324.
    • Besides the code, the ECI issues from time to time directions, instructions and clarifications on a host of issues which crop up in the course of an election.

    The model code of conduct

    • The model code of conduct issued by the ECI is a set of guidelines meant for political parties, candidates and governments to adhere to during an election.
    • This code is based on consensus among political parties.
    • The model code is observed by all stakeholders for fear of action by the ECI.
    • However, there exists a considerable amount of confusion about the extent and nature of the powers which are available to the ECI in enforcing the code as well as its other decisions in relation to an election.

    Issues with model code of conduct

    1) Issue of enforceability

    • As the code of conduct is framed on the basis of a consensus among political parties, it has not been given any legal backing.
    • A committee of Parliament recommended that the code should be made a part of the Representation of the People Act 1951.
    • However, the ECI did not agree to it on the ground that once it becomes a part of the law, all matters connected with the enforcement of the code will be taken to court, which would delay elections.
    • But then the question about the enforceability of the code remains unresolved.
    • Paragraph 16A of the Election Symbols (Reservation and Allotment) Order, 1968 says that the commission may suspend or withdraw recognition of a recognised political party if it refuses to observe the model code of conduct.
    • But it is doubtful whether this provision is legally sustainable.
    • When the code is legally not enforceable, how can the ECI resort to a punitive action such as withdrawal of recognition?

    2) Transfer of officials

    • Observers of ECI report to it about the conduct of certain officials of the States where elections are to be held.
    • Transfer of an official is within the exclusive jurisdiction of the government.
    • It is actually not clear whether the ECI can transfer a State government official in exercise of the general powers under Article 324 or under the model code.
    • Transfer of an official is within the exclusive jurisdiction of the government.
    • It is actually not clear whether the ECI can transfer a State government official in exercise of the general powers under Article 324 or under the model code.
    • Further, to assume that a police officer or a civil servant will be able to swing the election in favour of the ruling party is extremely unrealistic and naive.

    3) ECI’s intervention in administrative decisions

    • According to the model code, Ministers cannot announce any financial grants in any form, make any promise of construction of roads, provision of drinking water facilities, etc or make any ad hoc appointments in the government. departments or public undertakings.
    • These are the core guidelines relating to the government.
    • But in reality, no government is allowed by the ECI to take any action, administrative or otherwise, if the ECI believes that such actions or decisions will affect free and fair elections.
    • A recent decision of the ECI to stop the Government of Kerala from continuing to supply kits containing rice, pulses, cooking oil, etc is a case in point.
    • The Supreme Court had in S. Subramaniam Balaji vs Govt. of T. Nadu & Ors (2013) held that the distribution of colour TVs, computers, cycles, goats, cows, etc, done or promised by the government is in the nature of welfare measures and is in accordance with the directive principles of state policy, and therefore it is permissible during an election.
    • So, how can the distribution of essential food articles which are used to stave off starvation be electoral malpractice?

    Consider the question “The model code of conduct issued by the Election Commission of India is in the forms of guidelines and lacks legal backing. In light of this, examine the issues that arise due to the lack of legal backing.”

    Conclusion

    There is no doubt that the ECI, through the conduct of free and fair elections in an extremely complex country, has restored the purity of the legislative bodies. However, no constitutional body is vested with unguided and absolute powers.

  • Register of Indigenous Inhabitants of Nagaland (RIIN)

    An apex body of Naga tribes has asked the Nagaland government not to be hasty with the exercise to prepare the Register of Indigenous Inhabitants of Nagaland (RIIN), seen as a variant of Assam’s National Register of Citizens.

    Register of Indigenous Inhabitants of Nagaland (RIIN)

    • The Government of Nagaland has decided to set up a Register of Indigenous Inhabitants of Nagaland (RIIN) with the aim of preventing fake indigenous inhabitants’ certificates.
    • The RIIN will be the master list of all indigenous inhabitants of the state.

    How will the list be prepared?

    • The RIIN list will be based on “an extensive survey”.
    • It will involve official records of indigenous residents from rural and (urban) wards and would be prepared under the supervision of the district administration.
    • The preparation of the list will start from July 10, 2019, and the whole process will be completed within 60 days from the start.
    • Designated teams of surveyors will be formed within seven days from the date of publication of the notification, and thereafter these teams will be sent across each village and ward.
    • The database will note each family’s original residence, current residence as well as the concerned Aadhaar

    What is the review procedure?

    • Respondents will be given an opportunity to make their case before the authorities.
    • Eventually, respective Dy. Commissioners will adjudicate on the claims and objections based on official records and the evidence produced.
    • This process will be completed before December 10, 2019.

    Unique identity through Indigenous Inhabitant Certificate

    • Based on the adjudication and verification, a list of indigenous inhabitants will be finalised and each person will be given a unique ID.
    • The final list or the RIIN will be created and its copies will be placed in all villages and ward.
    • Electronic copies of the list will also be stored in the State Data Centre. A mechanism or electronic and SMS-based authentication will be put in place.
    • All indigenous inhabitants of the state would be issued a barcoded and numbered Indigenous Inhabitant Certificate.
    • The process will be conducted across Nagaland and will be done as part of the online system of Inner Line Permit (ILP), which is already in force in Nagaland.

    Back2Basics: Inner Line Permit (ILP)

    • ILP is an official travel document required by Indian citizens residing outside certain “protected” states while entering them.
    • The ILP is issued by the Govt. of India and is obligatory for all those who reside outside the protected states.
    • With the ILP, the government aims to regulate movement to certain areas located near the international border of India.
    • ILP’s origin dates back to the Bengal Eastern Frontier Regulations, 1873, which protected the British Crown’s interest in tea, oil and elephant trade.
    • It prohibited “British subjects” or Indians from entering these protected areas.
    • After Independence, in 1950, the word “British subjects” was replaced by Citizens of India and the focus of the ban on free movement was explained as a bid to protect tribal cultures in northeastern India.

  • Sushil Chandra appointed Chief Election Commissioner

    The President has appointed Election Commissioner Sushil Chandra to take over as Chief Election Commissioner.

    Chief Election Commissioner

    • The Chief Election Commissioner (CEC) of India heads the Election Commission of India.
    • The ECI is a body constitutionally empowered to conduct free and fair elections to the national and state legislatures and of President and Vice-President.
    • This power of the Election Commission of India is derived from Article 324 of the Constitution of India.
    • CEC of India is usually a member of the Indian Civil Service and mostly (not necessarily) from the Indian Administrative Service.

    His/ Her Removal

    • It is very difficult to remove the authority of the Chief Election Commissioner once appointed by the president.
    • The two-thirds of the Lok Sabha and the Rajya Sabha need to present and vote against him for disorderly conduct or improper actions.

  • What is Durbar Move?

    A tradition of a century and a half is set to be broken in Jammu and Kashmir, with only “sensitive records” being taken from Jammu to Srinagar this summer during the “Durbar Move”.

    Discuss the feasibility, benefits and constraints caused by multiple administrative capitals in Indian states with special context to Jammu and Kashmir and the state of Andhra Pradesh. (250W)

    Durbar Move

    • Durbar Move is a bi-annual shifting of the Civil Secretariat and other offices of the state government from Jammu to Srinagar in summer, and vice versa in winter.
    • This is done as Jammu & Kashmir has two capitals: Kashmir during summer and Jammu during winter.
    • In Jammu, offices shut on the last Friday and Saturday of April and reopen in Srinagar on the first Monday after a gap of a week.
    • In Kashmir, offices shut on the last Friday and Saturday of October, to reopen in Jammu on the first Monday after a week’s gap, in November.

    The reasons why

    • Durbar Move is a tradition started 149 years ago started by the erstwhile Dogra rulers who hailed from Jammu but had expanded their boundaries to Kashmir including what is now Pakistan-occupied Kashmir, and Ladakh.
    • Jammu, Kashmir and Ladakh are very different from one another geographically, linguistically and culturally, and in those days were poorly connected by road.
    • It is generally understood that the Durbar Move was started to take the administration to the doorstep of the people of Kashmir which is closer to Ladakh.
    • During summer, ruling from Kashmir also helped in ensuring adequate supplies to Ladakh, which is closer to Kashmir than Jammu, before the winter snowfall would cut off Ladakh.
    • The practice also enabled greater interaction and bonding among the people of Jammu, Kashmir and Ladakh.

    The effort

    • Until 2019, the administration used to engage hundreds of trucks and buses for carrying office records and officials from one capital city to another.
    • For safe transportation, the Jammu & Kashmir police and paramilitary forces would dominate the entire Jammu-Srinagar national highway.
    • Apart from the expenses incurred on hiring trucks and buses, the moving staff also used to be paid TA and DA, besides arrangements for their accommodation.

    The criticism

    • Voices of protest started during the late 1980s, over the amount of money and time spent on the exercise.
    • However, the practice also enjoyed public support.
    • In recent years, many criticised the government for spending nearly Rs 200 crore on this exercise every year when it did not have enough funds even to pay salary to its employees.
    • Last year, the Jammu & Kashmir High Court observed that there was no legal justification or constitutional basis for the Darbar Move tradition.
    • The court recommended that in case the practice was rationalized, the resources and time saved could be utilized towards the welfare and development of the UT.
    • The money saved could also be used to address Covid-related issues like food shortage, unemployment and healthcare.

    What next?

    • The UT government has decided to switch to e-governance, will all office records converted into digital format.
    • As a result, while the Secretariat employees and some offices will move from Jammu to Srinagar, as usual, this year, only sensitive records will be shifted from one place to another.

  • Central Vigilance Commission (CVC)

    The CVC has modified the guidelines pertaining to the transfer and posting of officials in the vigilance units of government organisations, restricting their tenure to three years at one place.

    Revise all statutory and constitutional bodies from your Polity Book at least 2-3 times before the prelims.

    Central Vigilance Commission (CVC)

    • CVC is an apex governmental body created in 1964 to address governmental corruption.
    • In 2003, the Parliament enacted a law conferring statutory status on the CVC.
    • It has the status of an autonomous body, free of control from any executive authority, charged with monitoring all vigilance activity under the Central Government of India.
    • It advises various authorities in central Government organizations in planning, executing, reviewing and reforming their vigilance work.

    Its establishment

    • It was set up by the Government Resolution on 11 February 1964, on the recommendations of the Committee on Prevention of Corruption, headed by Shri K. Santhanam.
    • N Srinivasa Rau was selected as the first Chief Vigilance Commissioner of India.

    Composition

    • The Commission shall consist of:
    1. A Central Vigilance Commissioner – Chairperson;
    2. Not more than two Vigilance Commissioners – Members.
    • The CVC and other VCs shall be appointed by the President on the recommendation of a Committee consisting of the PM (Chairperson), the Minister of Home Affairs (Member) and the Leader of the Opposition in the House of the People (Lok Sabha).

  • Supreme Court Portal for Assistance in Court’s Efficiency (SUPACE)

    The Supreme Court has unveiled its Artificial Intelligence (AI) portal SUPACE, designed to make research easier for judges, thereby easing their workload.

    SUPACE

    • A pet project of the former Chief Justice of India S A Bobde, the SUPACE is a tool that collects relevant facts and laws and makes them available to a judge.
    • The Supreme Court’s system is not designed to take decisions, but only to process facts and to make them available to judges looking for input for a decision.
    • The CJI had then said that AI is to the intellect, what muscle memory is to the mind.

    Its’ utility

    • SUPACE will produce results customized to the need of the case and the way the judge thinks.
    • This will be time-saving. It will help the judiciary and the court in reducing delays and pendency of cases.
    • AI will present a more streamlined, cost-effective and time-bound means to the fundamental right of access to justice.
    • It will make the service delivery mechanism transparent and cost-efficient.

  • Lok Adalats

    The article highlights the important role played by the Lok Adalats in dispute resolution and raises concerns over underminig of justice for the sake of speedy disposal.

    Background of Lok Adalat

    • The Constitution (42nd Amendment) Act, 1976, inserted Article 39A to ensure “equal justice and free legal aid”.
    • To this end, the Legal Services Authorities Act, 1987, was enacted by Parliament and it came into force in 1995.
    • The Act seeks “to provide free and competent legal services to weaker sections of the society” and to “organise Lok Adalats to secure that the operation of the legal system promotes justice on a basis of equal opportunity”.
    • As an alternative dispute resolution tool, Lok Adalats are regularly organised to help parties reach a compromise.
    • Motor-accident claims, disputes related to public-utility services, cases related to dishonour of cheques, and land, labour and matrimonial disputes (except divorce) are usually taken up by Lok Adalats.

    Significance of Lok Adalats

    • As per the National Judicial Data Grid, 16.9% of all cases in district and taluka courts are three to five years old.
    • For High Courts, 20.4% of all cases are five to 10 years old, and over 17% are 10-20 years old.
    • Furthermore, over 66,000 cases are pending before the Supreme Court, over 57 lakh cases before various HCs, and over 3 crore cases are pending before various district and subordinate courts.
    • Moreover, Lok Adalats are economically affordable, as there are no court fees for placing matters before the Lok Adalat; finality of awards, as no further appeal is allowed.
    • As a result, litigants are forced to approach Lok Adalats mainly because it is a party-driven process, allowing them to reach an amicable settlement.

    Why Lok Adalats are fast

    • When compared to litigation, and even other dispute resolution devices, such as arbitration and mediation, Lok Adalats offer parties speed of settlement.
    • Cases are disposed of in a single day.
    • The speed is due to procedural flexibility, as there is no strict application of procedural laws such as the Code of Civil Procedure, 1908, and the Indian Evidence Act, 1872.
    • More importantly, the award issued by a Lok Adalat, after the filing of a joint compromise petition, has the status of a civil court decree.

    Some figures about cases disposed

    • In 2015 and 2016, ten National Lok Adalats (NLAs) were held each year that disposed of 1,83,09,401 and 1,04,98,453 cases respectively.
    • In 2017 and 2018, the number of NLAs dropped to five, with 54,05,867 and 58,79,691 cases settled respectively.
    • In 2019, four NLAs were organised, and they disposed of 52,93,273 cases.
    • In 2015, the average number of cases settled per NLA was 18,30,940, which came down to 10,81,174 in 2017, but rose to 11,75,939 in 2018, and 13,23,319 cases in 2019.
    • This throws up questions about the efficiency of NLAs.
    • The data show that the average number of cases disposed of per NLA since 2017 has gone up even when the number of NLAs organised each year has reduced.
    • This proves that on average, the system is certainly efficient.

    Concerns

    • The Supreme Court, in State of Punjab vs Jalour Singh (2008), held that a Lok Adalat is purely conciliatory and it has no adjudicatory or judicial function.
    • As compromise is its central idea, there is a concern that in the endeavour for speedy disposal of cases, it undermines the idea of justice.
    •  In a majority of cases, litigants are pitted against entities with deep pockets, such as insurance companies, banks, electricity boards, among others.
    •  In many cases, compromises are imposed on the poor who often have no choice but to accept them.
    • Similarly, poor women under the so-called ‘harmony ideology’ of the state are virtually dictated by family courts to compromise matrimonial disputes under a romanticised view of marriage.
    •  Even a disaster like the Bhopal gas tragedy was coercively settled for a paltry sum, with real justice still eluding thousands of victims.

    Consider the question “Examine the significance of Lok Adalats as an alternative dispute resolution tool. What are the concerns with speedy disposal of cases by Lok Adalats?”

    Conclusion

    A just outcome of a legal process is far more important than expeditious disposal, so what we need is concrete and innovative steps in improving the quality of justice rendered by National Lok Adalats.

  • Need to remove the secrecy around the electoral bonds

    The article highlights the issues with the electoral bond scheme and suggests an alternatives.

    Secrecy in donations

    • Before the electoral bond scheme, every transaction of more than Rs 20,000 was reported to the Election Commission.
    • Now even Rs 20 crore or Rs 200 crore could be donated anonymously. 
    • Why should donors want secrecy? To hide return favours, like contracts, licences and bank loans.
    • Both the RBI and ECI, standing up to their mandates, had registered their strong protest.

    How electoral bond scheme led to changes in provisions of other Acts

    • To make way for electoral bonds amendments were introduced in the Reserve Bank of India Act, Companies Act, Income Tax Act, Representation of the People Act and Foreign Contribution Regulations Act.
    • There were three serious changes which did not receive the deserved attention.

    1) Limit of 7.5 per cent removed

    • First, the limit of 7.5 per cent of its profits which a company could donate was not just increased but completely done away with by amending section 182 of the Companies Act, 2013.
    • Thus a company could donate 100 per cent of its profits to a political party.
    • Even a loss-making company could make political donations.
    • This is a sure step to legitimise and legalise crony capitalism.

    2) Requirement of resolution removed

    • The requirements for a resolution by the board of directors for a company to make donations to political parties and to declare the political donations in the profit and loss accounts were also removed.
    • This would allow keeping the donations secret not only from the public but the owners of the company, the shareholders — ironically, all in the name of transparency.

    3) Secrecy in contribution from foreign source

    • Section 29B of the Representation of the People Act, 1951 prohibits all political parties from accepting any contribution from a “foreign source.”
    • Section 3 of the 2010 Foreign Contribution (Regulation) Act bars candidates, legislative members, political parties and party officeholders from accepting foreign contributions.
    • When the High Court of Delhi in 2014 found Congress and BJP having accepted foreign funds in violation of the FCRA 1976, the government passed a retroactive amendment through a 2016 Finance Bill which repealed the 1976 Act and replaced it with the modified 2010 statute.
    • If any foreign country is financing our elections, it will now be a protected secret.

    Way forward

    • The Supreme Court’s concern about the possibility of misuse of funds is very pertinent.
    • The EC has been demanding that a law be passed to make political parties liable to get their accounts audited by an auditor from a panel suggested by the CAG or EC.
    • If the government don’t want to abolish the electoral bond scheme it should just make changes to it to disclose the donor and the recipient.
    • Another alternative is to do away with private fund collection altogether and replace it with public funding of political parties.
    • This is not likely to be more than Rs 10,000 crore every five years, if we were to go by the entire collection all the parties make together.
    • Another feasible option is to establish a National Election Fund to which all donations could be directed.
    • This would take care of the imaginary fear of political reprisal of the donors. 

    Consider the question “What were the changes introduced in various Acts for the introduction of the electoral bond scheme? What are the issues with these changes?”

    Conclusion

    We must not forget the finance minister’s opening statement in the 2017 Budget speech that “without transparency of political funding, free and fair elections are not possible”.