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Subject: Polity

  • Internal Security Architecture Shortcomings – Key Forces, NIA, IB, CCTNS, etc.

  • Citizenship and Related Issues

    • What is citizenship?
    • What does constitution say about citizenship?
    • Special rights enjoyed by citizens
    • Legislations in this regard
    • Termination of citizenship
    • What are OCI and PIO?
    • Merger of OCI and PIO
    • Other changes to citizenship provisions
    • Legislation to give citizenship to minorities
    • Bill to amend citizenship act, 1955

    What is citizenship?

    Citizenship is the status of a person recognized under the custom or law as being a member of a country. A person may have multiple citizenships and a person who does not have citizenship of any state is said to be stateless.

    What does constitution say about citizenship?

    The provisions of citizenship are covered by Articles 5 to 11 and are embodied in Part II of the Constitution.

     

    • Article 5 refers to citizenship not in any general sense but to citizenship on the date of the commencement of the Constitution.
    • Articles 6 and 7 deal with two categories of persons, namely, those who were resi­dents in India but had migrated to Pakistan and those who were residents in Pakistan but migrated to India.
    • Article 8 deals with Rights of citizenship of certain persons of Indian origin residing outside India
    • Under Article 9 of the Constitution, and person who voluntarily acquires the citizenship of any foreign State, even if qualified for Indian citizenship under any provision of the Constitution, may not be a citizen of India.
    • Article 10 says that every person who is or is deemed to be a citizen of India under any of the foregoing provisions of this Part shall, subject to the provisions of any law that may be made by Parliament, continue to be such citizen.
    • Article 11 deals with power of Parliament to regulate the right of citizenship by law and states that nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship.

    Special rights enjoyed by citizens

    Fundamental Rights provided in Indian constitution are available to citizens of India only; some of the fundamental rights which are not enjoyed by a non-citizen of India are:

    • Right to be discriminated on the basis of religion, race, sex, cast or birth of place
    • Equal opportunities in public employment
    • Right of six democratic freedoms (Article 19) + Cultural & educational rights

    Only citizens of India have the right:

    • To hold civil office
    • Right to vote
    • Right to be judges of courts

    Again, citizens alone have the right to hold certain high offices such as those of the President, Vice-President, Governor of a State, Judge of Supreme Court and High Courts, Attorney General, etc. the right to vote to elect a member of the Lok Sabha and a Vidhan Sabha and the right to become a Member of the Parliament and a State Legislature are reserved for citizens only.

    Legislations in this regard

    The legislation related to this matter is the Citizenship Act 1955, which has been amended by the Citizenship (Amendment) Act 1986, the Citizenship (Amendment) Act 1992, the Citizenship (Amendment) Act 2003, and the Citizenship (Amendment) Act, 2005.

     

    • Acquisition of Indian Citizenship as per Citizenship Act 1955: Indian Citizenship can be acquired under the following ways:
    1. Citizenship at the commencement of the constitution of India
    2. Citizenship by birth
    3. Citizenship by descent
    4. Citizenship by registration
    5. Citizenship by naturalization.

    Termination of Indian Citizenship as per Citizenship Act 1955: One can lose citizenship of India in 3 ways – Renunciation, Termination and Deprivation

    There are 3 situations under which a citizen of India may lose his Indian Nationality.

    • By Renunciation: If any citizen of India who is also a national of another country renounces his Indian citizenship through a declaration in the prescribed manner, he ceases to be an Indian citizen of registration of such declaration.
    • By Termination: Any person who acquired Indian citizenship by naturalisation, registration or otherwise,, of he or she voluntarily acquired the citizenship of another country he shall have ceased to be a citizen of India from the date of such acquisition.
    • By Deprivation: The Central Government is empowered to deprive a citizen of his citizenship by possible grounds of a citizenship certificate by means of fraud, false representation, concealment of any material fact; disloyalty of disaffection towards the Constitution shown by act or speech; assisting an enemy with whom India is at war.

    What are OCI and PIO?

    source

    Merger of OCI and PIO and how it will help

    The government has decided to merge the two cards of PIO and OCI and go ahead in this direction.

    • Merging PIO and OCI will lead to simplification of the rules under a single umbrella.
    • It was envisaged that merger of the card would facilitate visa-free travel to India, rights of residency and participation in business and educational activities in the country.
    • This is aimed at simplifying the visa-free entry for people of Indian origin into India.
    • The merger of the two cards could make PIO cardholders eligible for benefits already enjoyed by OCI cardholders.
    • Merging of the two cards will facilitate travel of Indians staying abroad and their participation in various activities in India.

    Other changes to citizenship provisions

    The Union Cabinet has approved proposals for extending several benefits to ‘persecuted’ minorities from Pakistan, Afghanistan and Bangladesh living in India on long-term visas. Many members of the Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities have come to India fearing persecution in their home countries.

    • The beneficiaries can buy property for self-occupation or use in self-employment.
    • They are allowed free movement within the State of their stay, and can get their long-term visa papers transferred from one State to another.
    • The government has permitted them to apply for long-term visas from the place of their current residence, even if they have moved to the present place without seeking permission.
    • The government has waived the penalty on late application for extension of their short- or long-term visas. The registration fees for citizenship will be reduced to Rs. 100 from Rs. 3,000-15,000.

    Soon, the Citizenship Rules, 2009, will be amended to help such persons get citizenship.

    Legislation to give citizenship to minorities

    • In other legislation People belonging to minority communities of Pakistan, staying in India on a Long Term Visa, will soon be able to get citizenship.
    • The Centre will set up a 4-day camp here to grant Indian citizenship to those who migrated to India from Pakistan between 1971 and 2009. The application process is divided into three categories to bucket them according to their year of migration.

    Bill to amend citizenship act, 1955

    • The government is also likely to introduce a Bill in the monsoon session of Parliament to amend the Citizenship Act, 1955
    • Amendment: Definition of “illegal migrants” to be changed that will enable the government to grant citizenship to minorities
    • The minorities aimed are at mostly Hindus, from Pakistan, Bangladesh and Afghanistan, who have fled their country fearing religious persecution

    Read all details about this bill and associated issues here:

    [Burning Issues] Citizenship Amendment Bill (CAB) 2016

    References:

  • Delhi Full Statehood Issue

    source

    Should Delhi be given statehood?

    • Why in news?
    • Background
    • What is the present status of Delhi?
    • Arguments favoring statehood in Delhi
    • Why not to give statehood?
    • The way ahead

    Why in news?

    Recently Supreme Court has sought more clarity on the scope and boundaries of the relationship between the Delhi government and the Centre as at times, both the Centre and Delhi government contest each other’s right to administer and govern the National Capital and demands have been raised to give statehood to Delhi.

    Background

    The elected governments have time and again felt crippled in decision-making as the assembly does not have powers like other state assemblies. All political parties that have been in power in Delhi have lamented this and raised the demand for full statehood for the national capital.

    What is the present status of Delhi?

    • Presently, Delhi enjoys the character of a special Union Territory that has some unique institutions like an elected Legislative Assembly and a High Court.
    • In 1991, the Parliament, through the 69th amendment, introduced Article 239AA (Special Provisions with respect to Delhi) and conferred the right upon the people of the NCT of Delhi to elect their own legislature and government to make laws under certain entries of the state list of the Seventh Schedule of the Constitution and execute these laws respectively.
    • This amendment, however, did not confer full statehood upon Delhi and powers with respect to public order, land and police remained with the Union government.

    Argument favoring statehood to Delhi

    • Two power centres create confusion

    In the current system, power is divided between the chief minister and the Central government through the LG. This dual control creates an inherent tension between the two power centres.

    • Union government exercises immense authority

    Though Delhi Assembly is given the powers to govern and make laws on all but three subjects – public order, police and land but the Union government has been violating this constitutional provision and has been exercising authority on several subjects.

    • Law & order should be the state government’s responsibility

    Delhi Police reports to the Union Home ministry and this ties their hands in ensuring maintenance of law and order in the capital. To avoid the tussle, the Centre can create and deploy a central police force for guarding its buildings and for diplomatic duties. For law and order duties, Delhi’s elected government must be in full command.

    • Delhi’s land cannot be under Centre’s control

    The Delhi government cannot decide on its own the use that the city’s land should be put to. This leads to conflict at times.

    • Delhi does not have its own officers

    Each state of India has its own Public Service Commission that recruits bureaucrats to run the state government’s administrative machinery. Delhi, being a Union territory, does not have a cadre of officers of its own and is part of a common cadre shared with other UTs.

    • It is argued that if Delhi had its own cadre, like all states have, the impasse between the offices of the CM and the LG would not have arisen.
    • National capitals all over the world have sufficient powers
    • Experts say even if some national capitals like Washington DC, London and Paris are not states, all of them have a governance structure that gives the local government legislative, financial and administrative powers. Delhi has none of these.
    • As Delhi expands, clarity over jurisdiction of the local government will become increasingly imperative.
    • Some experts have argued that the assembly should be dissolved and the Centre be given full charge of the national capital. However, the abolition of an assembly once created will mean taking away the democratic rights of the people.

    Why not to give the statehood?

    • Delhi is different than other UTs because as the nation’s capital, it must reflect the best that the country offers. And that is only possible if land-use, zoning plans and building regulations are managed in consonance with the standards expected of a capital city. Parallels cannot be drawn with state capitals like Mumbai, Bangalore or Chennai (although that is constantly being done).
    • Statehood would bring land allocation under the city government, whose concern for the country’s capital would yield to satiating local demands.
    • In the national capital, the protection of dignitaries and the maintenance of public order are the highest priorities. The upkeep of maximum standards of security is how the safety of the capital is judged. An attack on a Union minister or diplomat would guarantee an ‘unsafe’ tag not just for Delhi but the country. So, police cannot be kept solely in the hands of state government.
    • An important point against the grant of statehood to the Delhi is the inability of its city government to bear the cost of police salaries and the pension liabilities of all city government employees, which are today borne entirely by the Centre.
    • It would weaken the case for delegation of authority under various statutes which is feasible and a necessity.

    What’s the way ahead

    • Full statehood will definitely bring better opportunities for the residents of Delhi and financial increments for the government’s budget but not without its own share of responsibilities like provision of top security infrastructure for law & order and internal security
    • From the point of view of the citizens of Delhi, what matters is that systems are transparent and day-to-day work is attended to. This does not need statehood—only good governance

    References:

  • Land Reforms

    Land Reforms In India: An Unfinished Business

    The Traditional Land Reforms

    The Britishers in India were not at all keen in adopting progressive land reforms measures for the rural farmers. So, after independence, we adopted several measures to usher in long stalled land reforms.

    1. Abolition of Intermediaries

    Intermediaries like Zamindars, Talukdars, Jagirs and Inams had dominated the agricultural sector in India by the time the country attained independence. Soon after independence, measures for the abolition of the Zamindari system were adopted in different states.

    Reason: This kind of system was exploitative for tenants and Zamindars never invested in agriculture because their rights were not permanent, which ultimately led to low production.

    Outcome: Tenants came in direct contact with government, though he continued to pay rent which was very nominal. This was the most successful land reform in the country, but it benefited only one class of tenants, who were owners of land prior to British land revenue system

    1. Tenancy Reforms

    This reform sought to provide security of tenure to tenants, so that land owners cannot evict them arbitrarily along with regulation of rent. This reform sought to prevent exploitation and giving security of tenure so that they could invest in land. This reform required tenants to legally register with the govt. in order to get protection.

    Outcome: This reform was not very successful, except in states of West Bengal and Kerala, because of lack of political will at the state level. Moreover, since landowners were politically active, they didn’t allow the tenants to register with govt. 

    3. Ceiling on Land holdings and Redistribution of Surplus land

    The third important step of land reforms relates to the imposition of ceiling on land holdings. Ceiling on land holdings implies the fixing of the maximum amount of land that an individual or family can possess.

    This reform sought to bring parity in terms of distribution of land through two aspects: one, the fixation of ceiling limit and two, the acquisition of surplus land and its distribution among the small farmers and landless workers. This reform was accompanied by Bhoodan movement, (launched by Acharya Vinoba Bhave)

    Outcome: Actually, the limit on ceiling was kept very high and the redistributed land was mostly infertile land

    4. Consolidation of Land Holdings

    Consolidation of Holdings means bringing together the various small plots of land of a farmer scattered all over the village as one compact block, either through purchase or exchange of land with others.

    Reason: The average size of land holdings in India is very small. The size of the holdings is decreasing but number of holdings is increasing over time. This is due to the inheritance laws. If farms are small and scattered, we cannot go for mechanization, etc.

    Oucome: Not very successful, because the owners did not had conclusive rights so there was fear among farmers that they may lose land ownership. Moreover, there is mix of fertile and non-fertile land, so it was difficult to get same quality of land.

    5. Cooperative Farming

    It has been advocated to solve the problems of sub-division and fragmentation of holdings. In this system, farmers pool their small holdings for the purpose of cultivation and reap benefits of large scale farming.

    Reason: Economies of scale can reduce input cost

    Outcome: This was the least successful land reform in the country due to inconclusive ownership rights.

    Current Scenario

    Now, the land ceiling cannot be implemented because landholdings are small, but, land consolidation and tenancy reforms are more relevant now.

    Market-led Land Reforms

    These reforms come into picture after the 1991 economic reforms, which gave private sector larger role to play. Post-1991 reforms, land became important for industrial and infrastructure as well, along with agriculture.

    1. Modernization of Land Records

    This reform seeks to solve the issue of inconclusive land ownership rights. This includes survey of land holdings in the country and digitization of land records and revenue records, so there is less subjectivity in terms of ownership rights. It is significant reform because it will facilitate land consolidation.

    National Land Records Modernization Program –  It was launched in 2008, to modernize management of land records, minimize scope of land/property disputes, enhance transparency in the land records maintenance system, and facilitate moving eventually towards guaranteed conclusive titles to immovable properties in the count.

    This will facilitate easy purchase and selling of land.

    2. Facilitating Land Leasing

    There should be compulsory registration for all the land owners and lease holds. Registration of landowners will ensure security of land ownership. They can lease their land to landless/tenants and settle in urban areas. The idea is that, since there is massive rural-urban migration and those who are well-settled in urban areas can lease their land to their village counterparts.

    At present, NITI Aayog is preparing a model agricultural land leasing law, to formalise leasing of agricultural land.

    3. Land Acquisition for Public Purpose

    In 2013, govt. enacted “The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013″, to provide just and fair compensation to farmers while ensuring that no land could be acquired forcibly.

    There was a big debate on this issue over the last year, when NDA govt. brought an amendment bill, which sought to remove all necessary checks (such as consent clause, social impact assessment, minimum consent requirement, etc) in land acquisition for 5 sectors namely – defence, rural infrastructure, affordable housing, industrial corridors and infrastructure where central govt. owns land.

    Suggested Readings

    1. Indian Express: Farmer needs a new deal
    2. Indian Express: Land Titling

    Published with inputs from Pushpendra

  • Freedom of Speech – Defamation, Sedition, etc.

  • Temple entry for women : Gender Equality v/s Religious Freedom

  • Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.

     

    What is the idea behind a Uniform Civil Code for India?

    Currently, believers of various religions can marry, adopt, inherit property and divorce under their own customs.

    Under a Uniform Civil Code, it is believed, personal laws and sanctioned practices of different religions will be largely harmonised with accepted fair practices for all citizens, under guidelines laid down by Constitution.

    Does the Constitution mention a Uniform Civil Code?

    Article 44 of the Constitution, which is one of the Directive Principles of State Policy, says: “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”

    Directive Principles are not justiciable or mandatory, only a guideline.

     

    Then, what is the debate about?

    Articles 29 and 30 guarantee minorities the right to conserve their culture and script, and run their own educational institutions.

    It was understood that minorities could practise their religion and follow their customs and traditions.

    The Supreme Court asked the central government, whether it was willing to bring a Uniform Civil Code to ride over inconsistent personal laws in different religions.

    There was “total confusion” over the incoherent stipulations about marriage, divorce, adoption, maintenance and inheritance.

    Currently, different laws regulate these aspects for adherents of different religions.

    Is the debate over Uniform Civil Code just a Hindu-Muslim issue?

    Far from it. Parsis, Jains, Sikhs, Christians, apart from of course Hindus and Muslims, have their own civil codes.

    While the Muslim Personal Law is yet to be codified (because of deep divisions within), Christian and Parsi codes were specified before Independence.

    The personal laws of Hindus, Jains, Sikhs and others were codified in the 1950s.

    So, What does our secular Constitution say?

    Article 25, which guarantees the freedom to practise, profess and propagate any religion. By the 42nd Amendment of 1976, India was declared a secular nation.

    The understanding of Article 25, the State and its institutions have not interfered with religious practices, including in relation to various personal laws.

    There is a view that this principle runs contradictory to the idea of secularism which requires the State to be inert to religious considerations, and not tacitly support them by following a practice of non-interference, no matter what.

    Clause (2) of Article 25 empowers the State to frame any law to regulate or restrict “secular activity which may be associated with religious practice”, therefore, it is argued, Article 25 is no bar to having a Uniform Civil Code.

    The inconsistency in personal laws has been challenged on the touchstone of Article 14, which ensures the right to equality.

    Historical Judgements

    Litigants have contended that their right to equality is endangered by personal laws that put them at a disadvantage.

    The first prominent case founded on Article 14 was Shah Bano case (1985) in which the apex court ruled that a Muslim woman was entitled to alimony under the general provisions of the CrPC, like anybody else.

    Following protests from Muslim leaders, Rajiv Gandhi’s government in 1986 got the Muslim Women (Protection of Rights on Divorce) Act passed in Parliament, which nullified the ruling.

    In effect, the verdict did a balancing act between the Shah Bano judgment and the 1986 law.

    In Githa Hariharan vs RBI (1999), the top court adjudicated upon the constitutional validity of certain provisions of the Hindu Minority and Guardianship Act, 1956 and the Guardian Constitution and Wards Act, on a petition claiming they violated Articles 14 by treating the father as the natural guardian of a child under all circumstances.

    It ushered in the principle of equality in matters of guardianship for Hindus, making the child’s welfare the prime consideration.

    That’s some history! what is today’s scenario ?

    The BJP, kept the Uniform Civil Code in its 2014 election manifesto. The BJP and RSS have long demanded it, and cited the example of Goa, which has a common law called the Goa Civil Code.

    What the government tells the court next month will be a test of its political will , and mark the next chapter in the evolution of this debate.

    So, do we really want a Uniform Civil Code? Is there a way forward ?

    Yes, you say? Well, there seems only one way to see through this crazy fog.
    Every aspect of the personal laws must be examined in the light of constitutional guarantees to every Indian, equality, justice, right to life.

    Laws that fail to uphold these basics must be thrown away, Isn’t it ?

    Published with inputs from Arun

  • Judicial Pendency

    Overcoming the backlog of cases: Judicial reform

    A British citizen, Will Pike was paralysed during the 2008 Taj Hotel blasts in 2008. Suing the hotel group for compensation, he wanted the trial to take place in London rather than in India. Accepting his contention, the London court allowed the matter, specifically stating that the trial in India could take some ‘twenty years’. This is a befitting example of the pendency in Indian judicial system and how it needs to be urgently addressed.

    THE MAGNITUDE OF THE PROBLEM

    The graphic below states the number of cases pending before the Courts in India. Currently, about 3.25 crore cases are pending in the Indian courts and Judges fear that this number might escalate to about 4 crore cases by the end of 2016. This problem gets escalated due to the crunch of Judges at all levels of Judiciary as seen in the graphic below.

     

    Timely justice is an integral part of access of justice and this huge backlog of cases amounts to denial and derailment of justice. This article will look into the proposed reforms for addressing this systemic problem.

    10 REFORMS FOR ADDRESSING JUDICIAL PENDENCY

    The 245th Law Commission Report on “Arrears and Backlogs: Creating Additional Judicial (W)omanpower has recommended the following measures

    1. Calculating Adequate Judge Strength through a more scientific analysis of data – In this context, the Commission has negated a simplistic method like Judge-Population ratio (Number of judges required per million people) in favour of a Rate of Disposal Method.

    In the Rate of Disposal Method, one looks at the current rate at which judges dispose of cases. Then, given that the institutions and disposal rate remain the same, the Courts would need how many more additional judges to keep pace with the new filings in Court so that the newly instituted cases do not add to the existing backlog.

    2. Judges to be appointed on a Priority basis: India currently has 1/5th of the number of judges it needs and thus, the Judges need to be appointed on a priority basis.

    3. Increasing the age of retirement for Subordinate Court Judges to 62 years.

    4. Creation of Special Courts for traffic/police challan cases: They constitute about 37.4% of the existing pendency before the subordinate courts.

    5. Provision for staff and infrastructure

    6. Periodic Needs Assessment by High Courts: Monitoring the rate of institution and disposal of cases and revising the adequate strength of Judges since a High Court is equipped with all the information relating to the subordinate courts in the State. The Malimath Committee had recommended setting up of Vigilance Cells in each district by the High Court to monitor the performance of subordinate judicial officers.

    7. Uniform data collection and data management methods : to bring in greater transparency.

    8. Need for a system-wide reform: The Commission has recommended the following:
    ● Greater encouragement to Alternative Dispute Resolution (ADR) and Lok Adalats <Can you tell us the difference among various types of ADRs, mediation, arbitration and conciliation? Answer in comments>
    ● Setting up non-mandatory time frames and performance benchmarks for resolution of different types of cases based on rational criteria.

    OTHER RECOMMENDATIONS

    9. Use of Technology : Has been recommended by the 230th Law Commission Report and the Malimath Committee Report to
    (a) Club cases filed on similar points of law, which can be decided on the basis of a single judgment.
    (b) Track old cases, which have become infructuous and dispose them off quickly
    (c) Setting up E-Courts and ushering in E-filing. Has received a major boost under the e-Courts Integrated Mission Mode Project.

    10. Creation of All-India Judicial Service: Provided for under Article 312 of the Indian Constitution. The idea has been mooted by various bodies including the First Judicial Pay Commission and accepted by the Supreme Court. Art 2012 proposal regarding creation of this service has not received responses from all States and this proposal continues to be hanging in the air <can you tell us the procedure of creation of new all India service? Answer in comments>.

    CONCLUSION:

    Many steps are currently being taken by the Government and the Courts to address this problem.

    • Monthly National Lok Adalats are carried out for expeditious disposal of claims.
    • In March 2016, the Monthly Lok Adalat disposed of about 1.5 lakh cases and settled claims worth Rs. 100 crores <Where can one appeal against the decision of Lok Adalats. Also tell us about the jurisdiction of Lok Adalats. Answer in comments>
    • In criminal cases, the setting-up of fast-track Courts and “plea bargaining” have further expedited matters <Can you tell us what’s plea bargaining? Answer in comments>
    • The e-courts project, aimed at providing better Court management and a database of all pending cases with easier filing of important documents is underway.
    • Moreover, the National Litigation Policy 2015 is awaiting ministerial approval and seeks to reverse the trend of Government being the biggest litigant <did you know one of the argument for rejecting NJAC was that govt was the biggest litigant, therefore can have no role in appointment of judges>.

    However, in view of the burgeoning backlog and urgency of reducing backlog, the efforts need to be severely expedited.

    P.S. This article is published with inputs from a CD user  Joyousjojo (name changed on request).

    P.P.S. If you want to write explainers for CD, mail us your explainer at hello@civilsadily.com

  • Alternative Dispute Resolution Mechanism – NCA, Lok Adalats, etc.

    Do we really need a National Court of Appeal?

    The Supreme Court recently admitted an SLP (Special Leave Petition) under Article 136 of the Constitution on the setting up of a National Court of Appeal (NCA) with regional benches which will act as final courts of appeal in civil, criminal, revenue and labour matters <Can you tell us, what is SLP in comments>.

    In 1987, in the case of Bihar Legal Support Society v. the Chief Justice of India, the proposal to set up the National Court of Appeal was mooted and welcome by the then Chief Justice P N Bhagwati. The current petition by Chennai based lawyer has once, again brought the issue to the fore.

    The Supreme Court will set up a Constitution Bench to decide on the proposed NCA as primarily, it raises the following question related to the interpretation of the Constitution Answer in comments>.

    As of now, the Supreme Court is the final court of appeal in all cases. With the NCA, the role of the Apex Court would be restricted to hearing only constitutional and public law cases. Would this amount to tinkering with the ‘basic structure’ of the Constitution?

    REASONS WHY NCA COULD BE A WELCOME PROPOSITION?

    Given the never-ending and ever –increasing case-load on the Apex Court, the NCA could be a welcome change on the following grounds:
    (a) Clearing the massive backlog: With the huge pendency of cases in all three levels of Judiciary, the National Court of Appeal with its regional benches may prove to be crucial in clearing the massive backlog of cases. About 98% of the Apex Court’s time is wasted on routine matters like bail pleas, dishonor of cheques, traffic violations, correcting errors in HC judgments.

    With the NCA hearing matters pertaining to civil, criminal, labour and revenue laws, Supreme Court would be able to concentrate on the more important public law concerns.

    (b) Restoring the Apex position of the Apex Court: With the Supreme Court getting an opportunity to hear exclusively on constitutional and public law matters, its position as the final arbiter on constitutional cases and on developing the law will be further strengthened.

    This is in tune with the scenario in England, UK and Wales where the Supreme Court only rules on matters of constitutional importance or sets a new legal precedent.

    (c) Greater access to justice: Access to justice is a fundamental right for all under the Indian Constitution. In the Indian scenario, this is proportionate to the distance from Supreme Court. As per a recent survey, majority of cases come from northern states like 14% from Delhi High Court in comparison to southern states like only 2.5% of cases from Kerala High Court and even fewer from North-eastern States. Setting up NCA with regional benches will help in reducing travelling expenses, with a better cost-benefit ratio.

    WHY SHOULD THE STATUS QUO BE MAINTAINED?

    The Centre has been challenging the move to set up the NCA on the following grounds:

    (a) Dilution of the powers of Apex Court: Currently, many citizens resort to Article 136 of the Constitution in any sort of matter. With the subject matter of disputes being divided amongst NCA and the Supreme Court, Supreme Court’s exclusive power to entertain appeals under Article 136 will be significantly diluted.

    (b) Compromise the unified structure of the Judiciary: Currently, there is one Apex Court with the High Court in states followed by subordinate courts. This integrated structure will suffer a backseat with NCA somewhere in the middle between High Courts and Supreme Court Answer in comments>.

    Moreover, earlier proposals to set up Regional Benches of the Supreme Court with one bench in each region have been rejected by the Supreme Court on the ground that it will affect the unitary character of the Judiciary and that there can be only one Supreme Court.

    For providing greater access to citizens from far-flung areas, it has been proposed that there could be dedicated courtrooms with video conferencing facilities for litigants and lawyers from far-flung areas. This will avoid the need of setting up regional benches and even NCA to a great extent.

    (c) Large-scale Constitutional amendments required: For bringing the NCA into existence, several provisions of the Constitution related to independence of Judiciary, hierarchy of Courts, powers of Supreme Court etc. will have to be amended. Moreover, Article 136 of the Constitution is a part of the basic structure and in view of the decision in Keshvananda Bharati case, limiting the powers of Supreme Court through NCA will be extremely difficult.

    The solution does not lie with creating courts of appeal because it would not bring down litigation. The Supreme Court has to exercise restraint on the manner of interference under its constitutional power. Today people take chances and come to Supreme Court on every issue, including challenging an adjournment order – Attorney General

    Law Commission Recommendation 

    • Law Commission in its 229th report submitted to the government in 2009 recommended setting up of four regional benches at Delhi, Chennai/Hyderabad, Kolkata and Mumbai to deal with appeals arising out of high courts. Earlier 125th report had recommended setting up of NCA Answer in comments>.
    • It said, if necessary Article 130 may be amended to implement its suggestion that Cassation Benches may be set up in four regions, while the Constitution Bench sits in Delhi . < Is Law commission a constitutional or statutory or executive body? Answer in comments>

    But the Supreme Court rejected it in 2010, saying dividing the Supreme Court would affect the country’s unitary character. A Full Court comprising all SC judges reiterated its earlier resolutions passed in 1999, 2001, 2004 and 2006 in this regard.

    CONCLUSION: The burgeoning backlog of cases plaguing all the three levels of judiciary demand more resources and institutional reforms to deal with the problem. However, any proposals to set up institutions like the NCA will require Constitutional amendments and major Legislative will to go through. This at present is not forthcoming. The idea of a National Court of Appeal requires consideration, but in a manner that would not undermine the undoubted authority of the Supreme Court of India. The next hearing for the matter is slated up for April 4.

    P.S. This article is published with inputs from a CD user  Joyousjojo (name changed on request).

    P.P.S. If you want to write explainers for CD, mail us your explainer at hello@civilsadily.com

  • Euthanasia Mercy Killing