Editorials/Opinions Analysis For UPSC 10 December 2022

Editorials/Opinions Analysis For UPSC 10 December 2022

Contents

1. A scathing attack on court  
2. IPO-ization of political manifestos prior to elections

A Scathing Attack On Court

Context

• India’s Vice President recently stated that the Supreme Court’s 2015 decision, which invalidated the NJAC and the 99th Constitutional Amendment, 2014, severely harmed parliamentary sovereignty and ignored the will of the people.
• Previously, Union Law Minister said that the Collegium system of appointing judges was “opaque,” “unaccountable,” and “incompatible” with the Constitution.
• The article emphasises how disturbing these attacks on the Collegium system and the SC verdict are, as well as the National Judicial Appointments Commission’s shortcomings (NJAC).

Relevance

GS Paper 2: Separation of powers between various organs dispute redressal mechanisms and institutions.

Mains Question

“Recently, there has been a growing voice in support of reintroducing the NJAC Bill.” Examine the NJAC Act 2014 in light of this statement. (150 Words)

The Constitution (99th Amendment) Act of 2014

• It purchased the following changes to replace the collegium system and introduced three primary Articles, which are as follows:
  • Article 124A: It established the National Judicial Appointments Commission (NJAC) to replace the collegium system.
  • Article 124B: It gave the NJAC the authority to make appointments.
  • Article 124C: It gave Parliament the authority to regulate the NJAC’s operations.
• The NJAC Act was passed unanimously by the Parliament in 2014, replacing the collegium system with the NJAC.

Appointment procedure

• •: The NJAC was supposed to recommend the Chief Justice of India and Chief Justices of the High Courts based on seniority.
  • The SC and HC judges were to be chosen based on their ability, merit, and other factors.
    • NJAC Panel: It was a six-member panel chaired by the CJI and comprised of two of the Supreme Court’s most senior judges.
  • The other three were the Union Law Minister and two “eminent persons.” One of the eminent members had to be nominated by someone from the SC, ST, OBC, or be a woman.
  • A recommendation can be vetoed by any two members of the panel.

Why was NJAC challenged?

• In 2015, the Supreme Court Advocates on Record Association (SCAORA) filed a petition against NJAC, claiming that it devalued the judiciary’s collective opinion by allowing its recommendation to be vetoed.
  • The petitioner also claimed that NJAC “severely” harmed the Constitution’s basic structure (judicial independence).
  • 4th Judge Case 2015: The NJAC and the 99th Amendment were overturned by the Supreme Court on the grounds of jeopardising judicial independence.
    • This resulted in the restoration of the collegium system, in which appointments and transfers of judges are decided by a forum comprised of the CJI and the Supreme Court’s four senior-most judges.

NJAC-related articles and content

• No casting vote for CJI: The NJAC had an even number of members under Article 124A, but the Chairperson – the CJI – had no casting vote. Because there was no clarity on a tie, a deadlock was obvious.
  • Eminent persons may lack expertise: Unlike other Central Acts, which require “eminent persons” appointed as members of a committee to have expertise in the subject matter covered by the statute, the NJAC does not.
    • It implied that one-third of the NJAC could be constitutionally unaware of how the SC or the HCs operate and still decide the fate of our higher judiciary.
  • Veto provision: Under the NJAC Act, the NJAC could not make a recommendation if two of the six members disagreed. This could have caused havoc in the appointment process, giving the executive complete control of the judiciary.
  • An unusual selection procedure for HC judges: The Chief Justice and two senior-most judges from each HC were required to nominate individuals to the NJAC for appointment as HC judges.
    • The NJAC could also nominate individuals for appointment as HC Judges at the same time. The split could have occurred if the two sets of nominees were different.
    • In addition, the NJAC was required to “elicit in writing” the Governor’s and Chief Minister’s views on the appointment of HC judges. If these two held opposing viewpoints, it was unclear who would win.
  • NJAC determining suitability criteria: The 99th amendment gave NJAC the authority to draught regulations establishing suitability criteria and the procedure for appointing judges to the SC and HCs.
    • These regulations had to be tabled before both Houses of Parliament, which had the authority to nullify or modify them, making the appointment process inefficient.

The Supreme Court’s response to recent criticism of the Collegium system

• Under the Constitutional scheme, the power of Parliament to enact a law is subject to scrutiny by the courts, which serve as the “final arbiter” of the law.
• The Collegium’s average clearance rate is around 50%, indicating that the government’s opinion is taken into account when appointing judges.

The way forward

• NJAC reform: The NJAC should be amended to ensure that the judiciary maintains independence in its decisions and reintroduced with judges constituting a clear majority in the Commission.
  • Detailed guidebook: The SC should issue a written manual that should be followed during appointments.
  • Collegium Minutes: The Collegium’s deliberations could be videotaped and archived, and all meetings should be open to the public to ensure transparency and a rule-based process.
  • Specified criteria, such as regional representation, seniority, gender, and so on, to elevate judges and advocates to the SC rather than relying solely on the Collegium’s unanimity, could help avoid future disagreements.
  • UK Model: A special selection commission selects the various applicants for the position of judge, based on the qualifications and procedure prescribed.
    • The chosen nominees are reported to the Lord Chancellor, who recommends a name to the Prime Minister, who then advises the King on the appointment.
  • US Model: Under the US Constitution, the President has the authority to appoint a Supreme Court nominee, and the Senate has the responsibility to confirm a nominee in order to enforce the concept of checks and balances.

Conclusion

• India must restore the credibility of the higher judiciary by making the process of appointing judges transparent and democratic (the Supreme Court stated in its 2015 verdict that “all is not well with the Collegium”).

• It is time to consider establishing a permanent, independent organisation to institutionalise the process while ensuring judicial primacy, diversity, professional competence, and integrity.

IPO-Ization of Political Manifestos Prior To Elections

Context

In an effort to crack down on the political practise of announcing “freebies” to entice voters, the Election Commission of India mandated that political parties explain the financial implications of their promises and how they will be fulfilled. However, ECI’s proposal to ask parties to quantify poll promises, explain ab initio (from the start), and assess fiscal impact is being compared to the “IPO-isation” of a political manifesto.

Relevance

GS Paper 2: Important aspects of governance, transparency and accountability, e-governanceapplications, models, successes, limitations and potential; citizens charters, transparency & accountability and institutional and other measures.

Mains Question

What exactly are election manifestos? Explain the significance of election manifestos in Indian democracy and the challenges they pose. (250 Words)

Background

• In 2015, the ECI issued guidelines through an amendment to the Model Code of Conduct (MCC) in response to the Supreme Court’s directions in the Subramaniam Balaji Case and Article 324 of the Constitution.
  • Article 324 of the Constitution mandates the Election Commission to conduct elections to the Parliament and State Legislatures, among other things
• These amendments require political parties and candidates to follow through on promises made in their manifestos.
• The ECI has requested that political parties and candidates respond with their positions as soon as possible.
• If no response is received, ECI will assume that the parties or candidates have nothing to say about the proposed amendments to the MCC.

Concerning ECI notices/directives

• Reprimanding (criticising) parties: In a letter to political party officials, ECI chastised the parties for offering freebies without explaining how they would be fulfilled.
• Pro-forma: The proposed’standardised disclosure pro-forma’ for recognised National and State Political Parties includes sections that political parties must fill out in order to reflect the rationale for the promises and provide possible ways and means to fulfil them.
  • The ECI also suggested that the parties disclose the impact on the fiscal sustainability of the State’s or Central Government’s finances, as the case may be.
• Roadmap: The ECI also asked political parties to explain how they planned to raise funds for the freebies promised in the manifesto.
• Unwanted consequences: The ECI also noted that the consequences of inadequate disclosures by political parties are attenuated (diminished) by the fact that elections are held frequently, giving political parties opportunities to engage in competitive electoral promises.
  • This is especially noticeable in multi-phase elections, and most political parties do not submit declarations on time.

The Importance of the ECI Move

• Right to accurate information: According to ECI’s letter, eligible voters have the right to vote freely and with access to accurate information at all stages of the electoral process.
• Democratic right: According to ECI, the right to vote, the most precious gift of democracy, is inextricably linked to timely and reliable information.
  • As a result, the timely availability of data points to assess the financial viability of election manifesto promises becomes critical.
• Unviable poll promises: This ECI action will assist in avoiding making undue poll promises that are likely to taint the integrity of the election process or exert undue influence on voters in exercising their franchise.
•  Level playing field: The freebie culture in politics affects the level playing field for all political parties and candidates, as well as the conduct of free and fair elections.

ECI move criticism

• No standard definition: It is impossible to define freebies, and labelling any promise as a “irrational freebie” is fraught with controversy
  • In an affidavit to the Supreme Court, the ECI stated that the terms “irrational” and “freebie” are subjective and open to interpretation. A promise made by one political party may be considered a freebie by another, and vice versa.
• Vision document: It is a manifesto that includes more than a few financial promises and serves as a document with both subjective and objective elements in a democracy.
• Welfare politics: In today’s Indian scenario, where poverty is high, unemployment is widespread, and inequality is extreme, welfare politics will drive the political economy.
  • For example, Oxfam’s 2022 annual report on Inequality in India revealed that the number of poor doubled to 134 million as the wealth of the country’s dollar billionaires doubled.
  • The richest 1% have amassed 51.5 percent of total wealth, while the bottom 60% of the population has only 5%.
• No specified criterion: The election watchdog cannot specify parameters for promises that do not have a financial cost. Like reservations in community jobs.
• Overstepping boundaries: The Election Commission of India is constitutionally tasked with conducting free and fair elections, not with limiting political and economic imagination.
• Institutional overreach: Making such disclosures a part of the MCC may eventually place the onus of evaluating proformas submitted by political parties on the poll watchdog, which could be an example of ECI’s institutional overreach.
• Election contestation: Even if the promises are unrealistic or absurd, it is the responsibility of the opposing parties and the media to expose them.
• Voter mandate: It is ultimately up to the voter to assess the economic and fiscal implications of freebie policies, as well as to reward good performance and punish non-delivery by political parties.
• Policy domain: Because economic policy is in the hands of elected representatives, ECI has no role to intervene in the legislature’s purely political domain.

SBI issues a warning about freebies.

• About the report: In a recent report, Soumya Kanti Ghosh, the State Bank of India’s group chief economic advisor, warned against the growing trend of offering freebies during elections.
• Demonstration: Three poor states, Rajasthan, Chhattisgarh, and Jharkhand, were cited as examples, with pension liabilities totaling three lakh crores.
  • According to the report, these states’ pension liabilities were quite high, at 217, 190, and 207 percent, respectively.
• Raising loans: According to the report, state off-budget borrowing had reached 4.5% of GDP, and the extent of freebies or welfare schemes had reached a significant portion of GDP in many states.
• Freebie expenditure: According to the report, cash transfers, utility subsidies, loan or fee waivers, and interest-free loans announced by states in their latest budgets range from 1% to 2.7% of GSDP in several states.
• For example, in the case of Punjab and Andhra Pradesh, both of which are heavily in debt, freebies have exceeded 2% of GSDP.