Insights Daily Current Events, 07 May 2015
Government Disagrees with SC Verdict Giving Primacy to the CJI
The Centre recently said that the 1993 judgment of the Supreme Court, which led to the creation of the Collegium System for appointment of judges to the higher judiciary, was not correct as it created an empire within an empire.
What has the Attorney General said?
- The Attorney Genreal representing the centre has said that 1993 majority judgment (Second Judges case) by a nine-judge Bench managed to upset the delicate equilibrium achieved by the Constitution makers by giving the CJI primacy over judicial appointments.
- He also argued that the Second Judges case and the Presidential Reference of 1998 (popularly called the Third Judges case) effectively made the CJI the final word on judicial appointments.
Arguments regarding the Primacy given to CJI:
- The AG has said that the nine judge-bench judgment then was based on wrong premises since neither the Constitution nor the Constitution framers ever intended to give primacy to the CJI in appointment of judges or make it a part of basic structure. Collegium was never envisaged under the Constitution. While independence of judiciary forms the basic structure, primacy of the CJI does not.
- Since the 1993 Judgement needs reconsideration, the A-G said a larger Constitution Bench should hear the batch of petitions challenging the National Judicial Appointments Commission law replacing the Collegium system.
Observations made by the Supreme Court:
- Calling it a dangerous proposition, the Supreme Court has questioned the government for demanding a reconsideration of its two-decade-old judgments, which had established collegium as the system for appointing judges and gave primacy to the Chief Justice of India.
- The Bench also said that it would be dangerous to let the Centre seek review of a verdict now and told the AG the real test was going to be whether the new system was better and whether it ensured independence of judiciary.
What is Collegium System:
It is a system under which appointments and transfers of judges are decided by a forum of the Chief Justice of India and the four senior-most judges of the Supreme Court.
- It has no place in the Indian Constitution.
What the Constitution says?
- Article 124 deals with the appointment of Supreme Court judges. It says the appointment should be made by the President after consultation with such judges of the High Courts and the Supreme Court as the President may deem necessary. The CJI is to be consulted in all appointments, except his or her own.
- Article 217 deals with the appointment of High Court judges. It says a judge should be appointed by the President after consultation with the CJI and the Governor of the state. The Chief Justice of the High Court concerned too should be consulted.
Evolution of the Collegium System:
The collegium system has its genesis in a series of three judgments that is now clubbed together as the “Three Judges Cases”.
- First Judge Case: The S P Gupta case is called the “First Judges Case”. It declared that the “primacy” of the CJI’s recommendation to the President can be refused for “cogent reasons”.
- Second Judge Case: However, after 12 years in 1993, came a nine-judge bench decision in the Supreme Court Advocates-on Record Association vs Union of India case — the “Second Judges Case”. This was what ushered in the collegium system. The verdict said “justiciability” and “primacy” required that the CJI be given the “primal” role in such appointments. It overturned the S P Gupta judgment, saying “the role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter.
- Third Judge Case: In 1998, President issued a presidential reference to the Supreme Court as to what the term “consultation” really means in Articles 124, 217 and 222 of the Constitution. In reply, the Supreme strongly reinforced the concept of “primacy” of the highest judiciary over the executive. This was the “Third Judges Case”.
Sources: The Hindu, IE, Wiki.
MPs want India to reclaim Katchatheevu
Few Rajya Sabha members recently asked the Centre to renegotiate with the government of Sri Lanka to reclaim the island of Katchatheevu.
- Buoyed by the passage of the Constitution Amendment Bill to ratify the land border agreement with Bangladesh, these MPs said the government must reconsider the exchange of Katchatheevu as it was not done through a constitutional amendment and has not served India’s interest.
What is the need?
- These MPs have said that the ceding of Katchatheevu to Sri Lanka without any constitutional amendment, has adversely affected the livelihood of fishermen of Tamil Nadu.
- And it is also being said that the ceding of Katchatheevu is in total violation of the views given by the Supreme Court in a Presidential reference in the Berubari case.
Background:
The island of ‘Katchatheevu’ was ceded to Sri Lanka, in the year 1974. It was done in order to maintain good relationship with Sri Lanka.
It was argued that as a result of this hand over, the Tamil Indian Fishermen lost their rights which they exercised over the island and the surrounding seas for over thousand years. However, the government then had said that fishing and navigation rights were safeguarded for the future.
According to the agreement on the island, which falls in the Sri Lankan territory, Indian fishermen can rest and dry their nets during fishing in international waters.But this has often been violated by the SL Coast Guards.
Sources: The Hindu, Wiki,
Whistle Blowers Act amendment cleared
The Union Cabinet recently approved amendments in the Whistle Blowers Protection Act, 2011
Why is it being done?
This is being done with a view to incorporate necessary provisions aimed at strengthening safeguards against disclosures which may prejudicially affect the sovereignty and integrity of the country, security of the State, etc.
Aims and objectives of these amendments:
- The amendments would address concerns relating to national security.
- This would strengthen the safeguards against disclosures which may prejudicially affect the sovereignty and integrity of the country, security, strategic, scientific or economic interest of the State, relations with a foreign State or leads to incitement of an offence.
- Safeguard have also been provided in respect of such disclosures which have been exempted under section 8(1) of the Right to Information Act, 2005.
However, Anti-corruption activists have argued that the new provisions could weaken the fight against corruption in key sectors like defence. In the past, several dubious deals like the Bofors, Scorpene, Tatra truck and AgustaWestland scams have been exposed by whistle blowers.
Background:
In order to give statutory protection to whistle blowers in the country, the Public Interest Disclosures and Protection to Persons making the Disclosures Bill, 2011 was introduced in the Lok Sabha in August, 2010. The said Bill was passed by the Lok Sabha, in December, 2011, as the Whistle Blowers Protection Bill, 2011 and was passed by the Rajya Sabha on 21.02.2014. The Bill has received the assent of the President on 9th May, 2014.
Whistle Blowers Protection Act, 2011:
Whistle Blowers Protection Act, 2011 provides a mechanism to investigate alleged corruption and misuse of power by public servants and also protect anyone who exposes alleged wrongdoing in government bodies, projects and offices.
Salient features:
- The Act seeks to protect whistle blowers, i.e. persons making a public interest disclosure related to an act of corruption, misuse of power, or criminal offense by a public servant.
- Any public servant or any other person including a non-governmental organization may make such a disclosure to the Central or State Vigilance Commission.
- Every complaint has to include the identity of the complainant.
- The Vigilance Commission shall not disclose the identity of the complainant except to the head of the department if he deems it necessary. The Act penalizes any person who has disclosed the identity of the complainant.
- The Act prescribes penalties for knowingly making false complaints.
This Act aims to balance the need to protect honest officials from undue harassment with protecting persons making a public interest disclosure.
Sources: The Hindu, IE, PIB, Wiki.
U.S. sounds caution as India inks port deal with Iran
India and Iran recently signed an inter-Governmental Memorandum of Understanding (MoU) regarding India’s participation in the development of the Chabahar Port in Iran.
- With the signing of this MoU, Indian and Iranian commercial entities will now be in a position to commence negotiations towards finalisation of a commercial contract under which Indian firms will lease two existing berths at the port and operationalise them as container and multi-purpose cargo terminals.
Concerns raised by the US:
However, the US has cautioned India against rushing in with investments as the nuclear deal being negotiated was not final and said there was need to maintain the international solidarity that has brought this hard fought diplomatic victory.
Why is India interested in Chabahar Port?
- Chabahar is located close to the strategic Persian Gulf. It will impart significant strategic leverage to India giving it access to Afghanistan and to the energy-rich Central Asia bypassing Pakistan. It also cuts down transit time by a third accruing significant time and cost savings.
Further plans:
India, which has invested over $2 billion in Afghanistan, plans to link the Chabahar port with the Zaranj-Delaram road, the garland highway, India built in Afghanistan by upgrading the Chabahar-Milak road opening alternative access to sea port for Afghanistan’s connectivity to regional and global markets. India has already committed $100 million to develop the port.
The Chabahar deal has been long pending due to U.S. pressure on India in light of the severe sanctions imposed on Iran.
Sources: The Hindu, Wiki.
Pollution: particulate matter in India higher than WHO limit
A recent study by the WHO shows that a significant population of Indian subcontinent breathes air with much higher particulate matter that is lesser than 2.5 micrometre (PM2.5) in size than the limit set by the WHO.
- The Report says, in 2010, air pollution killed nearly 600,000 people in India. The situation has not changed in the last five years.
- Outdoor air pollution as a whole, especially the particulate matter, has been declared as class-1 cancer-causing agent (carcinogen) in 2013 by the International Agency for Research on Cancer (IARC) which is part of the WHO. Besides, it causes other respiratory and heart diseases.
- The PM2.5 is particularly dangerous and can cause adverse health effects owing to its greater penetrability into the human respiratory system and eventual accumulation in human organs and blood.
Vulnerable Section:
- Rural women, children and elderly population are more prone to diseases caused by air pollution. Rural women, in particular, face a greater risk from indoor pollution — locally made mud stoves fuelled by solid biofuel emit a far greater amount of finer particulate matter.
- Compared with peninsular India and coastal regions, the situation is far worse in the Gangetic Basin, especially during winter months. The Himalayas act as a barrier to dissipation of pollution plumes emanating from the cities located in the Basin. As a result, cities in the Basin are more prone to sustained bad air quality.
Why pollution level rises during winter?
- Air quality of any area depends on local emissions, long-range transport, local and regional weather patterns, and to some extent the topography of the region. Due to increased buoyancy and efficient ventilation in summer, pollution plumes rise effortlessly to the free atmosphere. This leads to a reduced level of surface level PM2.5 concentration in our breathing zone.
- The problem gets aggravated during winter. Adverse conditions during winter help trapping of pollution leading to elevated level of surface PM concentration.
Recent initiatives:
- India has begun taking steps in the right direction. The National Air Quality index, introduced recently, has created greater awareness of air pollution amongst the people. Recently, plying of diesel vehicles older than 10 years has also been prohibited.
- But the situation demands more action in order to restore good air quality and clear visibility. The economic gain due to avoidable loss of human life is too huge to be ignored.
What else can be done?
- Technical intervention through efficient cooking stoves can significantly improve the lives of rural women.
- Improved power situation, especially in cold days, together with better handling of municipal waste and trash, can also help in achieving better air quality in the cities.
- Central Pollution Control Board can be divested into various regional air boards that will be responsible for securing the environment in a more proactive manner. If mandatory, more laws need to be enacted and strictly enforced to accomplish these goals.
Sources: The Hindu.
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