Who are the 19 lakh excluded from Assam NRC, and what next for them?

Headline : Who are the 19 lakh excluded from Assam NRC, and what next for them?

Details :

In News:

  • The recently published final list of people in updated National Register of Citizen (NRC) has stripped nearly 19 lakh people in the north-eastern state of Assam of their citizenship.

About: NRC

  • The NRC for a state is the list of Indian citizens of that state.
  • It was created in 1951 to determine who was born in Assam and is therefore Indian, and who might be a migrant from neighbouring Bangladesh.
  • It is a list of people who can prove that they came to Assam before 24 March 1971, a day before India’s neighbouring country Bangladesh declared independence from Pakistan.
  • Objective: to control unabated migration from Bangladesh.
  • The Register is meant to establish the credentials of a bona fide citizen as distinguished from a foreigner.
  • Assam is the country’s only state to create such a document.
  • The NRC has been updated for the first time.

Background of the NRC updation:

  • The NRC updating exercise started in 2013 under the Supreme court’s watch.
  • The process of NRC update in Assam differs from the rest of the country and is governed by Rule 4A and the corresponding Schedule of the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003.
  • These rules were framed as per the cut-off date of the midnight of March 24, 1971, enshrined in the Assam Accord of 1985.
  • First draft of Assam NRC:
    • In accordance with the top court’s direction, the Registrar-General of India published the list on the night of 31-December-2017 to distinguish Indian citizens living in Assam from those who illegally entered the State.
    • Names of 1.9 crore people out of the 3.29 crore applicants were incorporated then.
  • Second draft:
    • In July 2018, a draft was published in which 2.89 crore residents were included as Indian citizens, while 40 lakh were left out.
    • Those who were left out were allowed to file claims for inclusion and citizens could object against anyone who they felt was wrongly included.
  • Excluded in additional list:
    • In June 2019, another 1 lakh, originally among the 2.89 crore included in that draft, were removed after subsequent verification.
  • Claims filed against exclusions:
    • As many as 36 lakh of those excluded filed claims against the exclusion, while four lakh residents did not apply.
  • Final NRC:
    • The latest NRC is the result of all those included and excluded.

What will happen to those 19 lakh people excluded from the NRC?

  • The excluded people will have to appeal against it at Foreigners’ Tribunals (FT), a quasi-judicial court and subsequently in the high court or Supreme Court.
  • The government has given 120 days time to appeal in the court.
  • Those excluded from NRC will have to prove that they or their ancestors were living in Assam on or before March 24, 1971.
  • Various other documents such as birth certificates and land records are admissible, as long as these were issued before the cutoff date.
  • However, if a person looses to prove his/her identity in Foreigners’ Tribunal as well as in higher courts, he or she will face a possible arrest and can be sent to a detention centre (However, the prospects sending a large number of people to detention centres is low).
  • If not deported or detained in a camp, such people would officially be entitled as non-citizens.

Foreigners Tribunal: Foreigners Tribunal (FT) was set up in Assam in 1964 through the Foreigners Tribunal Order 1964. The tribunals have been mandated with identifying the legal status of suspected foreigners in Assam.

Key Challenge:

  • The courts , limited in numbers, will be burdened and get exhaustive as the appeal period is short and cases are far too many which may further clog the process.

What makes deportation so uncertain?

  • For a country to be able to deport a mass of individuals to another country, the second country has to accept that they were its citizens who entered the first country illegally.
  • However, Bangladesh has never officially acknowledged that any of its citizens migrated illegally to Assam.
  • Besides, India has no treaty with Bangladesh that would facilitate their deportation.
  • Also, there have been no visible recent efforts by India to push the matter with Bangladesh.

India’s Policy for “stateless” persons:

  • India has no fixed policy for “stateless” persons.
  • The only aspect which is clear is that “stateless” person will not have voting rights.
  • As of now, nothing is clear about their rights to work, housing and government healthcare and education.
  • In India, being “stateless” is not the same as being a refugee.

Refugees in India:

  • India has refugees from Tibet, Sri Lanka (Tamils) and West Pakistan.
  • Among them, only the refugees from West Pakistan has the right to vote in Lok Sabha elections but not in Assembly polls.
  • For Tibetans, the government allows Indian citizenship with a rider that they move out of Tibetan settlements and forgo refugee benefits.
  • Under the Tibetan Rehabilitation Policy, 2014, adopted in part by a few states, refugees are eligible for certain benefits under government schemes for labour, rations, housing and loans.

Road ahead: Citizenship (Amendment) Bill, 2019

  • The Citizenship (Amendment) Bill, 2019 provided for granting citizenship to immigrants of six non-Muslim faiths from three countries, including Bangladesh.
  • However, the Bill lapsed, but is expected to be reintroduced.
  • If the Bill passes Parliament, Hindus from Bangladesh would be eligible for citizenship, even if detected as illegal immigrants, while Muslims who illegally entered from Bangladesh would be treated as illegal immigrants.
  • The Bill has faced protests in Assam on the ground that it runs contrary to the NRC’s objective, which is to detect all illegal immigrants.
  • Whatever the fate of the Bill, a very long battle awaits those who are excluded from the NRC but claim to be Indian citizens.

About: Assam Accord, 1985

  • Assam witnessed a range of law and order problems and political turbulence driven by the anti-foreigners movement, in the early 1980s.
  • The Assam Accord (1985) was a Memorandum of Settlement (MoS) signed, signed by the Centre and the All Assam Students’ Union (AASU).
  • Accordingly, those foreigners who had entered Assam between 1951 and 1961 were to be given full citizenship, including the right to vote while the entrants between 1961 and 1971were to be denied voting rights for ten years but would enjoy all other rights of citizenship.
  • In addition to economic development, the Accord also had assured to safeguards the cultural, social, and linguistic identity and heritage of the Assamese people.

Section : Polity & Governance

Can Pakistan get the ICJ to undo India’s decision on J&K’s special status?

Headline : Can Pakistan get the ICJ to undo India’s decision on J&K’s special status?

Details :

In News:

  • Pakistan has decided to approach the International Court of Justice (ICJ) over the recent revocation of Jammu and Kashmir’s special status by India.

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Theme of the topic: The topic analysis the ICJ’s Jurisdiction over the Jammu and Kashmir case

About/; International Court of Justice (ICJ)

  • The International Court of Justice (ICJ) is the main judicial organ of the United Nations (UN), established in 1945, after World War II to resolve international disputes.
  • The seat of the Court is in The Hague (Netherlands).
  • Of the six principal organs of the United Nations, it is the only one not located in New York(USA).
  • The Court’s role is to settle, the cases in accordance with international law, legal disputes submitted to it by States.
  • It gives advisory opinions on legal questions referred to it, but is not a criminal court.
  • Composition: The Court is composed of 15 judges, who are elected for terms of office of nine years by the United Nations General Assembly and the Security Council.
  • Official Languages: English and French

Note: Only countries are eligible to appear before the ICJ, and  individuals, non-governmental organisations, corporations or any other private entities are not eligible .

ICJ’s jurisdiction:

  • The nature of the ICJ’s jurisdiction is twofold:
    • Jurisdiction in contentious Cases: Contentious jurisdiction involves States that submit the dispute by consent to the Court for a binding decision. It decides, in accordance with international law, disputes of a legal nature that are submitted to it by States.
    • Advisory Jurisdiction: It gives advisory opinions on legal questions at the request of the organs of the United Nations, specialized agencies or one related organization authorized to make such a request.

Basis of ICJ’s Jurisdiction:

  • The ICJ’s jurisdiction takes three forms: compulsory, special agreement, and treaty-based.
    • Compulsory Jurisdiction: Any international legal dispute involving the UN Member States that have accepted the ICJ’s compulsory jurisdiction may be submitted to the Court, provided that all the States party to the dispute before the ICJ have accepted its compulsory jurisdiction.
    • Special Agreement Jurisdiction: States may also submit a dispute to the ICJ by special agreement, accepting the ICJ’s jurisdiction only with regard to the specific dispute at issue.
    • Treaty-based Jurisdiction: States may accept the ICJ’s jurisdiction with regard to particular areas of international law when they join a treaty that specifically provides that disputes will be submitted to the ICJ for resolution, such as the Convention on the Prevention and Punishment of the Crime of Genocide.

Is the ICJ’s Jurisdiction compulsory in Jammu and Kashmir case?

  • India and Pakistan have filed compulsory declarations in 1974 and 2017, respectively.
  • Filing such a declaration means that the concerned country (which acknowledges the compulsory jurisdiction of the ICJ) has the right to move the ICJ against any other country, which also accepts the same obligation, by filing an application instituting proceedings with the ICJ.
  • However, it is not clear if the jurisdiction of the ICJ will be compulsory in the J&K case since India has repeatedly said that it is an “internal matter”.

Procedure for filing a case in the ICJ:

  • In case of a unilateral application, the applicant state (Pakistan, in this case) will have to specify the legal grounds for ICJ’s jurisdiction.
  • In addition, it will need to state the precise nature of the claim, “together with a succinct statement of the facts and grounds on which the claim is based”.
  • However, Proceedings cannot begin until the country, against whom the application has been made (India. in this case), consents to the ICJ’s jurisdiction over the matter.
  • Furthermore, to determine its jurisdiction in the early stages of the proceedings, the ICJ can request the parties concerned to “argue all questions of law and fact” and cite evidence about the issue.
  • The proceedings can be instituted by way of a special agreement as well, which is bilateral in nature and in which the application can be filed by either party.

What happens when the jurisdiction of the ICJ is disputed?

  • In case there is a dispute related to the ICJ’s jurisdiction, the matter is settled by the decision of the ICJ itself guided by provisions given under Article 36 of the statute.
  • The purpose of the statute is to “organise the composition and functioning of the court”.

Can the ICJ’s judgments be revised?

  • A judgment can be revised only if there is discovery of a fact important to the matter which was not known to the ICJ and the party claiming revision when the judgment was first delivered.
  • The party asking for a revised ruling needs to assure the ICJ that the presence of the fact wasn’t simply neglected.

Section : International Relation

Headline : Explained: Sikkim, from Chogyal rule to Indian state

Headline : Explained: Sikkim, from Chogyal rule to Indian state

Details :

In News:

  • Recently, Sikkim’s longest serving Chief Minister, Pawan Chamling, became the sole elected Opposition representative in the Assembly after the remaining 12 Sikkim Democratic Front (SDF) MLAs defected, with 10 joining the BJP and another two joining the ruling Sikkim Krantikari Morcha (SKM).

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Context of the topic:

  • The current political instability follows a unique event: the voting out of a government in power for the first time in Sikkim’s history.
  • However, since joining India in 1975, Sikkim has seen its government changed only twice and in both cases, the government had fallen before the new one was voted in.
  • The current events has been described as a departure from monarchic psychology to strengthening democracy.

Theme of the Topic: The topic gives a background on the transition of Sikkim from monarchy to full Indian statehood.

In Focus: History of Sikkim

Sikkim under Chogyal rule:

  • Sikkim was under the rule of Chogyals (or kings) of the Namgyal dynasty of Tibetan descent for 333 years before 1975.
  • The first ruler of Sikkim, Penchu Namgyal, was installed as king by Tibetan lamas in 1642.
  • At its zenith, the Sikkim kingdom included the Chumbi valley and Darjeeling. However, after 1706, there were a series of conflicts between the powers of the region, which included Sikkim, Nepal, Bhutan, and Tibet, resulting in a shrinking of Sikkim’s territorial boundaries.

Alliance with East India Company (EIC):

  • In 1814, Sikkim allied with the East India Company (EIC) in the EIC’s campaign against Nepal.
  • In reward, Company restored to Sikkim some of the territories that Nepal had wrested from it in 1780.

EIC purchased Darjeeling

  • In 1841, the Company purchased Darjeeling from the Namgyal rulers.

Treaty of Tumlong of 1861:

  • The Treaty of Tumlong effectively made Sikkim a de facto protectorate of the British India.

Anglo-Chinese Convention, 1890:

  • The Convention also known as Calcutta Convention demarcated the border between Sikkim and Tibet, and was signed by Viceroy Lord Lansdowne and Qing China’s Imperial Associate Resident in Tibet.
  • Later, the Lhasa Convention of 1904 affirmed the Calcutta Convention.

Indo-Sikkim Treaty, 1950:

  • Under the Indo-Sikkim Treaty of 1950, Sikkim was to become a protectorate of the Indian Government while maintaining its autonomy.

Formation of Sikkim State Congress:

  • The gaping income inequality and feudal control over key resources led to popular discontent against the Chogyal rulers.
  • In December 1947, diverse political groupings came together to form the Sikkim State Congress.
  • In 1949, the Chogyal agreed to appoint a five-member Council of Ministers, with three Congress nominees, and two of his own.

Introduction of a new Constitution and elections in the state:

  • In 1953, the Chogyal introduced a new Constitution, and four general elections were held based on separate electorates in 1957, 1960, 1967, and 1970.
  • However, plagued by distrust between the Chogyal and the Congress, none of these elections helped further democracy.

Break down of law and order:

  • In the early 1970s, violent protests took place in the state, demanding a more democratic constitution for Sikkim, as well as more powers for the elected representatives.
  • This led to a breakdown of law and order in the princely state.

May 8 Agreement of 1973:

  • This was an agreement entered into by the Chogyal, the Government of India and leaders of the political parties of Sikkim following complete breakdown of the law and order situation.
  • Both the demands of the agitators (i.e. “a more democratic constitution” and “greater legislative and executive powers for the elected representatives of the people”) were provided in the Agreement.
  • In addition, the Indian Government was “requested” to take “responsibility” for law and order and appoint a chief executive or head of administration in Sikkim.
  • Elections on the basis of one-man one-vote were introduced.
  • The Indian chief executive held complete administrative authority.
  • If any difference of opinion rose between him and the Chogyal, it was to be “referred to the political officer in Sikkim, who shall obtain the advise of the Government of India, which shall be binding”.

New Government in state:

  • In 1974, elections were held, in which the Congress led by Kazi Lhendup Dorji emerged victorious over pro-independence parties.

Abolition of institution of the Chogyal:

  • In 1974, a new constitution was also adopted, which restricted the role of the Chogyal to a titular post.
  • The Chogyal resented this, and refused to deliver the customary address to the elected Assembly.

Protectorate to associated State

  • Also, in 1974, India upgraded Sikkim’s status from protectorate to “associated state”, allotting to it one seat each in the Lok Sabha and Rajya Sabha.

Referendum in 1975:

  • The Chogyal was unhappy with this move, and sought to internationalise the issue. This did not go down well with Sikkim’s elected leaders, and a referendum was held in 1975.
  • A total 59,637 voted in favour of abolishing the monarchy and joining India, with only 1,496 voting against.
  • Subsequently, India’s Parliament approved an amendment to make Sikkim a full state.

Special Constitutional provisions regarding Sikkim:

  • Article 371(F) of the Constitution, provides special status to the Sikkim.

The important Special Provisions include:

  • It states that the Legislative Assembly shall consist of not less than 30 members.
  • In order to protect the rights and interests of the different sections of the population in the state of Sikkim, seats in the assembly are provided to people of these different sections.
  • The Governor shall have special responsibility for peace and equitable arrangement for ensuring the social and economic advancement of different sections of the population of Sikkim.
    • The Governor of Sikkim shall, subject to such directions as the President may, from time to time, deem fit to issue, act in his discretion
  • Neither the Supreme Court nor any other court shall have jurisdiction in respect of any dispute or other matter arising out of any treaty, agreement, engagement or other similar instrument relating to Sikkim.

Section : Polity & Governance

River water disputes: Disputes Resolution Committee (DRC), Inter State Water Dispute Act, 1956

Headline : One tribunal for all river water disputes: why the proposal, how it will work

Details :

In News:
  • The Inter-State River Water Disputes (Amendment) Bill, 2019 has been passed by Lok Sabha.
  • It seeks to streamline the adjudication of disputes relating to waters of inter-State rivers and river valleys.
News Summary:
  • The Bill cleared by Lok Sabha seeks to make amendments to the Inter-State River Waters Disputes Act of 1956, that provides for setting up of a separate tribunal every time a dispute arises.
  • Once it becomes law, the amendment will ensure the transfer of all existing water disputes to the single Inter-State River Water Disputes Tribunal with different Benches in states.
  • All five existing tribunals under the 1956 Act would cease to exist.
What changes after the amendment?
Dispute resolution system:
Earlier:
  • Under the 1956 Act, a separate tribunal was needed to be set up every time a dispute arises.
Now:
  • Once it becomes law, the amendment will ensure the transfer of all existing water disputes to the single new tribunal.
  • The current system of dispute resolution would give way to a new two-tier approach:
    • Disputes Resolution Committee (DRC):
      • Under the new system, the Centre would set up a DRC once states raise a dispute.
      • The DRC would be headed by a serving or retired secretary-rank officer with experience in the water sector and would have other expert members and a representative of each state government concerned.
      • The DRC would try to resolve the dispute through negotiations within a year (extendable by another 6 months) and submit a report to the Centre.
      • Only if the DRC fails to resolve the dispute will the matter be referred to the tribunal.
  • Bench constituted by the tribunal:
    • If the DRC fails to settle the dispute, it would be referred to the permanent tribunal.
    • The chairperson would then constitute a three-member bench that would consider the DRC report before investigating on its own.
    • It would have to finalise its decision within two years (extendable by another year).
  •  The decision of the tribunal would carry the weight of an order of the Supreme Court.
 
Time taken to settle the disputes:
Earlier:
  • Under the 1956 Act, nine tribunals have so far been set up. It has taken 17 to 27 years to resolve disputes by these tribunals.
  • Only four of them have given their awards.
  • Though the tribunal was supposed to give its award within three years (extendable by another two years), the tribunals have taken much longer to give their decisions.
    • For example, the dispute over Cauvery waters between Karnataka and Tamil Nadu took 28 years to settle.
    • The Ravi and Beas Waters Tribunal was set up in April 1986 and it is still to give the final award.
    • The minimum a tribunal has taken to settle a dispute is seven years, by the first Krishna Water Disputes Tribunal in 1976.
  • The multiplicity of tribunals has led to an increase in bureaucracy, delays, and possible duplication of work.
Now:
  • The amendment is bringing a time limit for adjudicating the disputes.
  • All disputes would now have to be resolved within a maximum of four-and-a-half years.
About: Inter State Water Dispute Act, 1956
  • The Parliament has enacted Inter-State River Water Disputes (ISRWD) Act, 1956 for adjudication of disputes relating to waters of inter-State rivers and river valley thereof.
  • Setting up of Tribunal: When any request under the said Act is received from any State Government in respect of any water dispute on the inter-State rivers and the Central Government is of the opinion that the water dispute cannot be settled by negotiations, the Central Government constitutes a Water Disputes Tribunal for the adjudication of the water dispute.
    • Note: The 2019 amendment Bill seeks to modify this to have a single permanent Tribunal with multiple benches constitutes as and when necessary to adjudicate the disputes.
  • Make recommendations to government: The Tribunal so constituted investigates the matters referred to it and forward to the Central Government a report setting out the facts as found by it and giving its decision on the mattes referred to it.
  • Sole body to adjudicate disputes: Notwithstanding anything contained in any other law, neither the Supreme Court nor any other Court shall have or exercise jurisdiction in respect of any water dispute which may be referred to a Tribunal under this Act.
  • Final and Binding: The Central Government shall publish the decision of the Tribunal in the Official Gazette and the decision shall be final and binding on the parties to the dispute and shall be given effect to by them.
    • Judicial Review: However, the Supreme Court, while hearing a civil suit in the Cauvery dispute, had said the decision of that tribunal could be challenged before it through a Special Leave Petition under Article 136 of the Constitution.
  • Implementation: The Central Government may establish any authority/body for the implementation of the decision or directions of the Tribunal.
Section : Polity & Governance

India and Global Innovation Index

Headline : India rises in global innovation ranking

Details :

The News
  • India has jumped five places to rank 52 in the Global Innovation Index 2019 (GII).
  • The GII is a global benchmark that helps policy makers better understand how to stimulate and measure innovative activity, a main driver of economic and social development.
 
News Summary:
  • The latest Global Innovation index rankings were released at an event organised by the Indian Commerce Ministry and World Intellectual Property Organization (WIPO).
  • The rankings put India at 52nd in the world.
  • Switzerland is the most innovative economy, followed by Sweden, US, Netherlands and United Kingdom.
  • China, which has invested heavily in research and development, moved up three positions to rank 14.
  • Israel secured the 10th rank, marking the first time an economy from the Northern Africa and Western Asia region broke into the top 10.
India’s GII ranking:
  • India improved its ranking consistently in the recent years, from 88 in 2015 to 57 in 2018 to 52 in 2019.
  • India is now the most innovative economy in the Central and South Asian region.
  • India will continue its efforts to breach the top 50 in the GII soon, with the ultimate aim of reaching the top 10.
Factors that helped India improve its ranking:
  • Strong information and communication technology services exports,
  • Scientific publications
  • Investment by its top three companies in research and development
  • Quality of some of its educational institutions, including some IITs and IIMs
  • The proportion of science and engineering graduates on offer globally
  • State of cluster development, especially the performance of Bengaluru, New Delhi and Mumbai
Major areas where India needs to improve include:
  • Proportion of women with advanced degrees in the workforce.
  • Overall quality of education
  • Access and use of information and communication technologies
  • Student to teacher ratio in secondary level education
What are the strengths of India which has helped in improving its ranking?
  • India’s human capital (graduates in science & engineering)
  • Growth rate of GDP per worker
  • Exports of information and communication technology (ICT) and services
  • Productivity growth
  • Creative goods exports among others
 
Global Innovation Index
  • The Global Innovation Index (GII) aims to capture the multi-dimensional facets of innovation and provide the tools that can assist in tailoring policies to promote long-term output growth, improved productivity, and job growth.
  • The global ranking is published by the World Intellectual Property Organisation (WIPO) – a specialized agency of the United Nations – in association with Cornell University and graduate business school INSEAD.
  • GII is published annually since 2007.
  • It is considered a leading benchmarking tool for business executives, policy makers and others seeking insight into the state of innovation around the world. It is being used by them to evaluate progress on a continual basis.
  • GII ranks 126 economies based on 80 indicators, ranging from intellectual property filing rates to R&D, mobile application creation, online creativity, computer software spending, education spending, scientific & technical publications and ease of starting business.
Section : Economics

Rau’s IAS: Indian Polity and Governance Social Issues (Final Merged)

Indian Polity and Governance Social Issues (Final Merged)

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Open up the Supreme Court Editorial 9th Apr’19 TheHindu

Headline : Open up the Supreme Court Editorial 9th Apr’19 TheHindu 

Details : 

Delhi HC judgement said RTI applicable to higher judiciary:

  • In 2009, the High Court of Delhi handed down a landmark judgment dealing with the Right to Information (RTI) Act.
  • It held that the Office of the Chief Justice of India (CJI) was a “public authority”, and therefore, subject to the provisions of the Act.
  • Information held by the CJI — including, in the context of the case, information about judges’ assets — could be requested by the public through an RTI application.

But SC stayed it:

  • When the case reached the Supreme Court, a stay was granted.
  • In April, 2019, a five-judge Bench of the apex court finally heard the case on merits, and reserved judgment.
  • Expansion of issues under consideration:
    • By this time, the issues under consideration moved beyong Delhi HC’s ruling on the status of the Chief Justice as a public authority and the disclosure of judges’ assets.
    • It also involved the question of whether the correspondence of the Collegium was subject to the RTI.

Various aspects:

  1. Office of CJI and higher courts should be subject to RTI:
  • The answer to the basic question, i.e. whether or not the Office of the CJI is subject to the RTI Act, is a clear yes.
  • The Delhi High Court judgment noted that, “all power — judicial power being no exception — is held accountable in a modern Constitution”.
  • A blanket judicial exemption from the RTI Act would defeat the basic idea of “open justice”.
  • The courts are powerful organs of state, and their workings have to be as transparent and open to public scrutiny as any other body.
  • Some private information could be withheld as per RTI Act itself:
    • It would be incorrect to say that bringing the judiciary under the RTI Act destroys the personal privacy of judges.
    • The RTI Act itself has an inbuilt privacy-oriented protection, which authorises withholding the disclosure of personal information unless there is an overriding public interest.
    • For example, disclosure of assets is arguably justified by an overriding public interest, but information related to medical details or marital status need not be revealed.
  1. Correspondence of the Collegium:
  • The most complex issue regarding information from the judiciary involved the disclosure of the correspondence of the Collegium.

Collegium and its working:

  • India is one of the few countries where judges have the last word on judicial appointments, through the mechanism of the Collegium.
  • The Collegium includes the five senior-most judges of the Supreme Court, who collectively constitute the selection panel for judicial appointments to the Supreme Court (and the three senior-most judges when it comes to the High Courts).
  • The Collegium itself is not mentioned in the text of the Constitution: it arose out of a judgment of the Supreme Court, and in response to increased executive interference in judicial appointments.
  • The Collegium system of appointments arose, therefore, as a tool to secure and guarantee the independence of the judiciary.

Collegium system facing criticism:

  • However, the Collegium has come under increasing criticism.
  • A major point of critique was its opacity: it was increasingly being perceived that judicial appointments were too often made in an ad hoc and arbitrary manner.
  • For example, certain lawyers were ruled out from being recommended to High Court judgeship because of being in a live-in relationship without being married.

More transparency promised:

  • In 2015, the Supreme Court struck down a constitutional amendment establishing a National Judicial Appointments Commission (NJAC), which would have replaced the Collegium.
  • However, the apex court vowed to evolve a system where concerns of transparency were addressed.
  • A small step towards this was made in the recent years, when the resolutions of the Collegium began to be published online.

Fears that disclosing correspondence of collegium would destroy Judicial Independence:

  • During the arguments of the case related to judiciary and RTI, the Attorney-General of India (AG), who represented the Supreme Court before the Constitution Bench, argued that disclosing the correspondence of the Collegium would “destroy” judicial independence.
  • The CJI who was hearing the matter also agreed, noting that disclosing the reasons for rejection of a judge would “destroy” his or her life or career.

Such fears are unjustified:

  • This line of argument is difficult to accept.
  • It was first argued that only collegium system can secure judicial independence by ensuring judicial primacy in the appointments process.
  • Once that is done, it is unacceptable to then argue that the only permissible way in which this system can work is by making it immune to transparency.

Court must be transparent and accountable as it controls all appointments:

  • If the SC has instituted a process of appointment that makes itself the final arbiter of judicial appointments, then it must also ensure that that same process meets the standards of accountability in a democratic republic.

Transparency in judicial appointments is a feature of all major democracies:

  • A look at judicial appointments elsewhere suggests that transparency in appointments is integral to the process.
  • In the United States, for example, candidates for judicial appointments in the federal judiciary are subjected to public confirmation hearings by the Senate.
  • In Kenya and South Africa, the interviews of candidates taken by judicial appointments commissions are broadcast live.
  • The public, thus, is in a position to judge for itself the selection process.
  • This is crucial to maintaining public faith in the impartiality of the institution.

Collegium cannot be above scrutiny:

  • The Collegium in India has immunised itself from any form of public scrutiny.
  • The nomination process is secret, the deliberations are secret, the reasons for elevation or non-elevation are secret.
  • This creates an extremely unhealthy climate, in which rumours are rampant about judicial integrity as well as executive interference.
  • What truly destroys an insititution like the SC is not transparency but erosion of trust due to lack of it.

Conclusion:

  • The Collegium’s recent decisions to recommend a set of names for elevation, and then hastily backtrack on them without any publicly stated reasons, dealt a serious blow to its reputation for impartiality and independence.
  • The only way to salvage this is to open up the court.
  • A judiciary that is confident of itself and of its place in the democratic republic should not be worried about subjecting judicial appointments to public scrutiny.
  • The occasional discomfort that might come from the harsh public scrutiny is more than outweighed by the cleansing value of transparency.

Importance:

GS Paper II: Polity

Section : Editorial Analysis 

Another look at fiscal transfers Editorial 25th Mar’19 TheHindu

Headline : Another look at fiscal transfers Editorial 25th Mar’19 TheHindu

Details :

Significance of federalism:

  • The origin of the concept of federalism is mainly political.
  • It is well known that the efficiency of a government depends on, among other factors, its structure.
  • In large countries, it has been felt that only a federal structure can efficiently meet the requirements of people from different regions, as preferences vary across regions.

Federalism in India with much centralisation:

  • In India, during the independence struggle, provincial autonomy was regarded as an integral part of the freedom movement.
  • However, after Independence, various compulsions like defence and internal security led to a scheme of federalism in which the Centre assumed greater importance.
  • Also in the initial decades following Independence, when the Centre and all States were ruled by the same party and when many of the powerful provincial leaders migrated to the Centre, the process of centralisation gathered further momentum.
  • Economic planning at a nation-wide level helped this centralising process.

Central government held responsible for all subjects:

  • Due to centralised planning for most of the period after independence,  the performance of the Central government came to be judged not only on the basis of actions taken which fall strictly in its jurisdiction (Union list) but also on initiatives undertaken in the areas which fall in the Concurrent and even State lists.
  • Also, through Centrally sponsored schemes, the Centre has often ‘encroached’ on the territory of States.
  • Today, the Central government is held responsible for everything that happens, including, for example, agrarian distress (though Agriculture is a state subject).

 

Fiscal federalism

  • Fiscal federalism is the economic counterpart to political federalism.
  • Fiscal federalism refers to the assignment of functions to different levels of government along with appropriate fiscal instruments for carrying out these functions.

Distribution of functions to various levels:

  • It is generally believed that the Central government must provide national public goods that render services to the entire population. A typical example cited is defence.
  • Sub-national governments are expected to provide goods and services whose consumption is limited to their own jurisdictions.

Distribution of fiscal powers:

  • Fiscal federalism also requires determination of the specific fiscal instruments that would enable the different levels of government to carry out their functions.
  • This is the ‘tax-assignment problem’ – determining the taxes that are best suited for use at different levels of government.
  • How to decide?
    • One basic consideration is in relation to the mobility of economic agents, goods and resources.
    • It is generally argued that the de-centralised levels of government should avoid non-benefit taxes and taxes on mobile units.
    • This implies that the Central government should have the responsibility to levy non-benefit taxes and taxes on mobile units or resources.

Various models on this:

  • Building these principles into an actual scheme of assignment of taxes to different levels of government in a Constitution is indeed very difficult.
  • Different Constitutions interpret differently what is mobile and what is purely a benefit tax.
  • US: For example, in the United States and Canada, both Federal and State governments have concurrent powers to levy income tax.
  • India: On the contrary, in India, income tax is levied only by the Central government though shared with the States.
  • Recognising the possibility of imbalance between resources and responsibilities, many countries have a system of inter-governmental transfers.

 

Finance Commission recommendations and other modes of revenue sharing:

  • The Indian Constitution lays down the functions as well as taxing powers of the Centre and States.
  • Unconditional Transfers: Correction of vertical (Centre vs States) and horizontal (State vs State) imbalances have been addressed by every Finance Commission, taking into account the prevailing set of circumstances.
  • Conditional/Discretionary transfers: However, Central transfers to States are not confined to the recommendations of the Finance Commissions.
    • There are other channels such as those through the Planning Commission until recently as well the discretionary grants of the Central government.

Revenue sharing between Centre and States moving towards greater share for States:

  • 2010-11:
    • In 2010-11, in the combined revenue receipts of the Centre and States, the share of the Centre was 64.68%.
    • After transfer, the share came down to 40.20%.
    • In the case of the States, their share before transfers was 35.32%. After the receipts of transfers the share of States went up to 59.80%.
    • Thus the shares got reversed.
  • 2016-17:
    • In 2016-17, the share of the Centre after transfers was 33.37% and that of the States was 66.63%.
    • In the case of total expenditures, the share of the Centre in 2014-15 was 41.14% and that of the States was 58.86%.

 

Modes of revenue sharing

  • While the current position on revenue sharing appears reasonable, the question remains on the mode of transfers.

Finance Commission now in control of unconditional transfers with Planning Commission disbanded:

  • Finance Commissions prior to the Fourteenth recognised that some transfers were being made by the Planning Commission; this was kept in mind while deciding on tax devolution.
  • But the Planning Commission was replaced by the NITI Aayog in 2014, with no powers of resource allocation.
  • Now all the unconditional transfers are being done by the Finance Commission alone, and the 14th FC greatly increased this devolution to the states.
  • 14th FC:
    • The Fourteenth Finance Commission has broken new ground in terms of allocation of resources.
    • One of its major recommendations has been to increase the share of tax devolution to 42% of the divisible pool.
    • This is a substantial increase by almost 10 percentage points.
    • The commission has argued that this does not necessarily affect the overall transfers but only enhances the share of unconditional transfers.

What happens if a future government brings back centralized planning?

  • The moot question is about what happens if any future government revives the Planning Commission with financial powers.
  • This will put the Central government in a fix.

 

Ways to ensure States’ revenues are not too dependent on the government at the centre:

  1. Fixing the proportion of shareable taxes:
  • One way to achieve this is for the Constitution to be amended and to fix the proportion of shareable taxes that should go to the States.
  • The shareable tax pool must also include cesses and surcharges as these have sharply increased in recent years.
  • Fixing the ratio at 42% of shareable taxes, including cesses and surcharges, seems appropriate.
  1. Powers to States to tax income:
  • Another possible route is to follow the practice in the U.S. and Canada: of allowing the States to levy tax on personal income, with some limitations.
  • Since one of the concerns is that resources do not match functions, this may be a way out.
  • But States’ powers must be limited:
    • But, as in the U.S., the scheme should be simple and ride on federal income tax, that is, just a levy on the income assessed by federal authorities.
    • The freedom given to the States must be limited.
    • It is important to note that the levy by the Centre and States together should be reasonable.
  • Tax sharing also needs to be adjusted:
    • Also once this power is given to the States, the transfers from the Centre need adjustment.

Option 1 more feasible:

  • As far as India is concerned, this is an area which needs a fuller study.
  • Adoption of any one of these alternatives will avoid friction between the Centre and the States.
  • Perhaps the first alternative of constitutionally fixing the ratio is the easiest.

 

Horizontal distribution also needs balanced criteria without taking too much from the richer states:

  • There are issues relating to horizontal distribution.
  • Equity considerations have rightly dominated the allocations. However, the ability of bringing about equalisation across States in India has limitations.
  • Even the relatively richer States have their own problems and they feel ‘cheated’ because of the overuse of the equity criterion.
  • An appropriate balancing of criteria is needed particularly in the context of the rise in unconditional transfers, and Finance Commissions will need to achieve that.

 

Importance:

GS Paper II: Polity

 

 

Section : Editorial Analysis

 Despite the consensus around the need for reforms, Indian prisons remain in a poor state as reflected in various issues including overcrowding and violation of prisoners’ rights. Discuss in light of the recently formed Amitava Roy committee. What measures must be taken to address this issue? (15 marks)

 Despite the consensus around the need for reforms, Indian prisons remain in a poor state as reflected in various issues including overcrowding and violation of prisoners’ rights. Discuss in light of the recently formed Amitava Roy committee. What measures must be taken to address this issue? (15 marks)

Approach:

  • Introduce with the recent SC decision to form a committee on prison reforms
  • Discuss the various issues in prisons including overcrowding, human rights violations etc.
  • Suggest measures including reforming justice system, bail reforms, prison conditions etc.
  • Conclude appropriately
Model Answer :

The issue of the need for prison reforms in India has once again come to light after the Supreme Court formed a committee on prison reforms under former SC judge, Justice Amitava Roy to look into the entire gamut of reforms to the prison system. Though a person is denied personal liberty in prison, the higher judiciary has always maintained his/her other fundamental rights remain protected.

Issues with prisons:

While marginal reforms have taken place over the years, these have not been enough to ensure that prison conditions are in tune with human rights norms. Various issues with Indian prisons include:

  • Overcrowding and large number of undertrials: There is a concern about growing numbers of prisoners and the woeful incapacity of governments to build more and larger prisons. As per NCRB data, there has been an average occupancy rate of 114% in most of the prisons.
    • A major problem is that due to slow justice system, undertrials are making up about 70% of all inmates.
    • For poor and marginalized, it is also difficult to meet the stringent demands of bail.
    • Over 60 per cent of arrests were unnecessary, and magistrates are also seen to be issuing mechanical remand orders.
  • Human rights violations: Prisoners also suffer the brutality and venality of prison officials, as well as at the hands of more violent fellow prisoners.
    • Unsatisfactory living conditions: Prison structures in India are in dilapidated condition. Further, lack of space, poor ventilation, poor sanitation and hygiene make living conditions deplorable in Indian prisons.
  • Shortage of staff: The ratio between the prison staff and the prison population is inadequate leading to rampant violence and other criminal activities inside the jails.

 

Way ahead:

State will suffer from limited capacity to protect prisoners’ rights in overburdened prisons unless following reforms are undertaken:

  1. Reform justice system:
  • In our justice system, delay remains the primary source of injustice. Expediting the trial process and revisiting criminal justice system through police reforms, amendments to IPC/ CrPC etc. are most important.
  1. Reform bail laws for undertrails to reduce crowding in prisons.
  • Bail conditions must be eased and needless arrests must be avoided. A separate Bail law, on the lines of Bail Act UK, can be formulated.
  1. Reform the prison system to ensure the basic rights of the prisoners.
  • Prisoners must be provided free and compulsory legal aid.
  • CCTVs, improvements in staffing and infrastructure, more humane conditions, and safeguards for women all need to be taken up.
  • The Union Home Ministry’s Model Prison Manual of 2016 must be followed.
  1. Formation of NPC: As Mulla committee suggested, a National Prison Commission may be formed to oversee the modernization of the prisons in India.

 

The Amitava Roy committee will look into all the issues and recommend measures for prison reform. It is hoped that the governments will implement them in earnest. The state is under an obligation to protect the residuary rights of prisoners after they surrender their liberty to a legal process.

Subjects : Current Affairs

Is the High Court’s power to issue writs wider than that of the Supreme Court of India? Examine. (10 marks)

Is the High Court’s power to issue writs wider than that of the Supreme Court of India? Examine. (10 marks)

Approach:

  • Introduce with the power of courts to issue writs under Article 32 and 226
  • Compare the writ jurisdictions of SC and HCs – wider jurisdiction of HC in some aspects and SC writ jurisdiction wider in other aspects
  • Conclude appropriately
Model Answer :

A writ is a directive issued by the Supreme Court (SC) and High Courts (HC) to carry out their directives for the enforcement of the fundamental right (FRs) or legal right of the affected person. The SC can issue writs under Article 32 of the Constitution, while the HC can issue writs under Article 226 of the Constitution. There are five types of writs, which can be issued by the SC/HC viz. Habeas corpus, Mandamus, Certiorari etc.

Comparing the power of SC and HCs to issue writs:

  1. The HC enjoys wider jurisdiction in respect of the issuance of writs, as can be seen from the following:
  • HC has wider subject matter jurisdiction: The HC can issue writs to enforce any other legal rights besides issuing the same for fundamental rights, whereas the SC can enforce only fundamental rights by issuance of writs.
  • HC has more discretion: As Article 32 is itself a FR and provides a guaranteed remedy for the enforcement of the FRs, therefore, the SC is bound to entertain petitions seeking protection against infraction of FR. But the HC may reject the writ petition on ground of res judicata, latches, availability of other rights etc.
  1. SC writ jurisdiction is wider as compared to HC in following sense:
  • Territorial limit: In matter of area wise jurisdiction, the SC has wide power whereas the HC’s jurisdiction is limited to a particular state.
  • HC order can’t be in derogation of SC: Further, Article 226(4) provides that the powers conferred on a HC shall not be in derogation of the powers conferred on the SC by Article 32(2). Thus, SC jurisdiction is wider than that of HC.

However, for enforcement of the FRs, a parallel writ jurisdiction has been conferred on the HC and on the SC. Thus, it cannot be explicitly said that either HCs or SC enjoy a wider jurisdiction. The writ jurisdiction of both the courts is interdependent and directed towards achieving same objective.

Subjects : Polity