1. Primacy of the judiciary in judges’ appointments is embedded in the basic structure of the Constitution. Do you agree? Critically analyse
The Supreme Court in October 2015, struck down the 99th constitutional amendment of the National Judicial Appointments Commission (NJAC) as null and void since it impedes into the tenet of Judicial Primacy which it said was a part of the basic structure of the constitution laid down by it in the historic pronouncement in Kesavananda Bharati case (1973)
EVOLUTION OF JUDICIAL PRIMACY:
The Constitutional bench in the verdict in ThreeJudgecase (1998) established the collegium system overturning the previous judgement of 1981 where even the executive had a say in appointment of the judges to the higher judiciary.
The SC interpreted the word consultation used in articles124 and 217 as concurrence and the court then held that executive is bound by the advice of the CJI in making appointments to the higher judiciary in the second judge case (1993) which later evolved into the collegium system. Thus the Judicial assertion and lack of contest by the executive turned this into the Doctrine of Judicial primacy (a judicial innovation).
WHETHER IT IS A PART OF BASIC STRUCTURE:
The court in its judgement asserted that Judicial primacy is non-negotiable in order to maintain the Independence of the judiciary which is an inalienable part of the Basic structure thus by extension even the Doctrine of Judicial primacy is a part of basic structure.
The proponents of the primacy doctrine also assert that it is a must in order to maintain a clear cut separation of powers enshrined in Article50 of the constitution.
Many Constitutional experts however said that the concept of primacy as a part of basic structure is misplaced. Even Dr.BRAmbedkar opined that primacy of CJI in appointments is a dangerousproposition.
In no constitution of the world is there any provision of judges having a decisive voice in appointing judges of superior courts. No such feature is found in any democratic country. It is not found in the appointments of judges in the US, UK, Australia, Canada, New Zealand and South Africa. Nobody has suggested these democratic states do not have independent judiciaries because judges are not appointed by the primacy of judges.
The five-judge bench in UnionofIndia v. SankalchandSheth, (1977) has held, through Justice VRKrishnaIyer’s majority opinion, in the context of transfers of high court judges under Article 222 that the word “consultation” used therein does not mean “concurrence.
The fear that the executive might use the authority vested on it to appoint pliant judges favourable to its government’s outlook is well founded. But, the National Judicial Appointments Commission, established through the 99th Constitutional Amendment, does not permit such excessive authority. It’s a six-member commission heavily tilted in favour of according the judiciary a significant say in matters of appointment. It not only comprises the three most senior judges of the Supreme Court, but it also accords the Chief Justice of India a vote in determining the two eminent persons to be nominated on the commission.
Though the pragmatic view of SC in ensuring that Judicial primacy as a part of basic structure has to be seen as a Judicial Innovation but the NJAC does not comprehensively try to neither effect the Independence nor affect the Basic structure Doctrine thus the Evolution of Primacy need not be a part of Basic structure doctrine
2. The Supreme Court has augmented its moral authority and acquired a new credibility with the people through judicial activism and judicial creativity. Critically comment.
Judicial activism is a legal term that refers to court rulings that are partially or fully based on the judge’s political or personal considerations, rather than existing laws.
Judicial Creativity is where legislations are interpreted by judge’s creative skills by introducing new principles and ways for implementation of laws.
Legislative and executive Vacuum: It evolved due to void created by executives and to establish rule of law.
PIL: In form of Public interest litigations, court passed orders for executives.
Pollution: Banning certain vehicles like SUV above 2000CCto preserve environment.
Black Money: Forming SIT to recovered black money.
Under trials: Release of under trials having served half there sentence if pronounced.
Doctrine of Basic Structure: This new concept was created due to creativity which has no constitutional or statutory basis.
Liquor ban from High ways: Banning liquor from 500m of National Highways.
Art 21: various interpretations like Menaka Gandhi Case, Right to environment etc.
Middle Income group scheme: For affordable settlement of cases for underprivileged.
Issues with these steps:
Judicial overreach: Judiciary has taken control of executive and playing role of God father when they are equals with other institutes.
Separation of power: Erosion of this concept with their high handedness.
Excessive power: With no control and accountability, there are becoming super administrators.
Their involvement is very much appreciated to preserve rule of land and control the other two organs when they go rogue but they are going beyond reach of any authority. They have assumed super powers like collegium system, where nobody can question or control them which are a bad precedent. They should stick to their role given by constitution.
3. Discuss the role of Cabinet in the Indian polity. Also bring out the distinction between the Cabinet and the Council of Ministers?
Cabinet is the supreme directing authority, the magnet of policy, which co-ordinates and controls the whole of the executive government of the Union and integrates and guides the work of Parliament.
Role of cabinet in Indian polity:
Cabinet is a deliberative and policy formulating body. It discusses and decides all sorts of national and international problems confronting the country.
The Cabinet Ministers formulate policies, make decisions and draft Bills on all significant matters which in their judgement require legislative attention.
It is their responsibility to see that Parliament meets at the most suitable time and the work of both the Houses is so conducted that it remains busy throughout the session.
The Cabinet is the supreme executive body. It superintends, supervises and directs the work the civil servants do all over the Union.
The essential function of the Cabinet is to co-ordinate and guides the functions of the several Ministries and Departments of Government.
· Judges of the Supreme Court and the High Courts, and members of the Union Public Service Commission etc. are selected by the Cabinet, and their appointments; are announced by the President on the recommendation of the Cabinet.
Distinction between the Cabinet and the Council of Ministers:
Council of Ministers is a wider body of which the Cabinet is a small but most powerful part. All ministers constitute the Council of Ministers whereas the Cabinet consists of the top 15-20 ministers only.
Cabinet ministers are the part of council of ministers. Council of ministers is divided into three parts: cabinet ministers, ministers of state with independent charges and ministers of state.
In the Indian Constitution, the provisions relating to the council of ministers are described in detail, in the Article 74 and 75. In contrast, the term cabinet is mentioned only once in the article 352, and that was also inserted through the 44th amendment act, in the year 1978.
Policy-making is performed by the Cabinet and not by the Council of Ministers. Union Cabinet is the highest decision-making executive in India while Council of Ministers the highest political functionaries of India.
The cabinet takes decisions relating to policies and monitors its implementation by the council of ministers. On the contrary, the council of ministers implements the decisions of the cabinet.
Only the Cabinet ministers take part in the meetings of the cabinet. Other ministers attend only when specially asked by the Prime Minister. A full meeting of the council of ministers is rarely held.
The Council has no collective functions; while the Cabinet performs a number of collective functions.
Thus, in the words of M.V. Pylee “the Cabinet the formulator of national policies the highest appointing authority, the arbiter of inter-departmental disputes and the supreme organ of co-ordination in the Government”. However, both cabinet and council of ministers help the government to function smoothly.
4. The permanent executive in India is led by civil servants most of whom are generalists. Do you think it is high time that area experts should be given lateral entry into the executive machinery? Critically analyse.
In India permanent executive is lead by civil servants which are recruited by UPSC which examines the overall knowledge of something of everything.
Earlier this year, the Prime Minister’s Office had asked the Department of Personnel and Training (DoPT) to prepare a proposal for considering the lateral entry of professionals into the middle levels of the civil services in ministries relating to economy and infrastructure. The need for lateral entry into the civil services has been debated for quite some time with even the Second ARC Report recommending the need for formalised procedures for such entry. But this has been met with resistance from many quarters particularly from civil servants themselves. This article discusses the issue of lateral entry into the civil services from both perspectives.
The idea that the Indian civil services is in need of institutional reform is not a new one. Allegations of corruption, mediocrity, stagnation and inefficiency have been made against the services. There is also a shortage of officers particularly in the middle levels. The Baswan Committee report said that large states like Madhya Pradesh, Rajasthan and Bihar have a shortfall of 75 to 100 officers. Lateral entry is suggested to cover up this deficit and also avoid the difficulties of large-scale initial recruitment.
Another belief is that lateral entry will bring in people with experience of the private sector. This can infuse the system with fresh energy and outlook. This can also bring in people with specialized knowledge and expertise. Civil servants are said to be jacks of all trades with mastery in none. This is in part due to the varied nature of their jobs, but the truth is, there are many sectors that need officers with specific domain knowledge. The career progression of a career civil servant is such that there is not much scope for him/her to develop specialised knowledge. The frequent transfers to different places and departments also don’t help. Thus, lateral entry can help bridge this gap of individuals with domain expertise. In addition, lateral entry can also bring in people with corporate exposure in the private sector with inherent advantages like faster turnaround of projects and better efficiency due to their target-oriented nature.
However, a move by the government to usher in lateral entry will not be easily welcomed by most of the current civil servants. Although the government has frequently roped in private sector individuals to head committees and projects, such a move into the mid-levels of the bureaucracy will affect the existing balance of officers. This can also demotivate current officers who would have struggled hard to get through to the services in the first place after clearing the tough UPSC civil services exam.
People hostile to the idea of lateral entry also say that it is not the individual but the enabling environment that can bring out the best in him/her. They say that even successful private-sector professionals can falter in an environment riddled with red tape and political interference. So what is needed is to reform the system from within first before looking for solutions outside. It is also said that this move can deter people from applying for the civil services because of a perceived slacking of promotional avenues.
There is no doubt that the civil service, which forms the backbone of Indian administration, needs reforms. The country’s progress and development depend on this. Even if lateral entry is introduced, it must follow a strictly defined procedure and not give way to nepotism and further corruption. Many developed countries like the UK and Australia follow lateral entry to suit their needs. The need of the hour is to have internal reforms to improve systemic efficiency, and also have a defined structure in place to allow lateral entry of professionals into the civil services.
5. Judiciary isn’t devoid of corrupt practices. It is in this light that enforceable standards of conduct for the judges must become a reality in India. Discuss.
Socrates had said, four things should belong to a Judge; to hear courteously, to answer wisely, to consider soberly and to decide impartially.
Problems with the current system of judiciary:
Judge Selection: The current system of Judge selection i.e., the collegium system is opaque and inefficient. People of the country whose rights the courts are supposed to protect, are unaware of the mode of selection and the efficiency of the judges
Judges arriving late: It has become a common practice has the proceedings of the court starts after the Judge, who are never on time.
Uncle Judge syndrome: The law commission in its 230th report has criticized this practice of Uncle Judges. people who have practiced in the High courts for 20-25 years get elevated to the posts of Judges and are hearing the cases from their erstwhile Colleagues, friends and family members. This compromises the impartiality of the Judge. The equity demands that the justice shall not only be done but should also appear to have been done.
Removal procedure: The Constitution-makers only provided for the removal from office of Supreme Court and High Court judges by means of joint action by the two Houses of Parliament, for proved misbehavior or incapacity. Till today, no judge has been removed according to this procedure.
Punishment practice: Current practices are that of transferring the errant judges to other state’s High Court. This does not solve the core problem i.e., of correcting the wrongs made by the judge, rather only transfers the problem from one High Court to another
The U.S. Constitution has the method of removal by impeachment of federal judges, but there is a supplemental law to consider complaints of misbehavior by federal court judges and discipline them, short of their removal. This has to be adopted in India too, so that disciplinary actions short of removal can be taken.
Create a dedicated investigative agency to investigate the matters relating to allegations against the judges.
judiciary must have a known system to govern and Court hours should not be judge centric.
The judges, whose kith and kin are practicing in a High Court, should not be posted in the same High Court. This will eliminate “Uncle Judge”
need to develop a uniform court procedure and eliminate the personality driven functioning of Judges.