1.CJI rues ‘sorry state of affairs’ in lawmaking
‘Ambiguity in laws triggering litigation and causing inconvenience to citizens’
Chief Justice of India N.V. Ramana on Sunday lamented the “sorry state of affairs” of lawmaking and Parliamentary debate in the country, saying there was “a lot of ambiguity in laws” which was triggering litigation and causing inconvenience to citizens, courts and other stakeholders.
Speaking on the occasion of the 75th Independence Day celebrations held at the Supreme Court lawns, Chief Justice Ramana rued how the standards of lawmaking had fallen over the years.
“Now it is a sorry state of affairs. There is a lot of ambiguity in the laws. We don’t know for what purpose they are made. They are causing a lot of litigation and inconvenience to the people, courts…” Chief Justice Ramana said.
The observations by the CJI follow closely after Parliament cleared the Tribunal’s Reforms Bill of 2021, which has sought the abolishment of as many as nine appellate tribunals, including the Film Certificate Appellate Tribunals, despite the Opposition charge that the legislation undermined the independence of the judiciary.
The Bill has also revived provisions of tenure and service of members of tribunals which were earlier struck down by the Supreme Court in a judgment.
The CJI, in his speech on Sunday, mentioned how lawyers had led the nation, right from the struggle for Independence to being the first legislators of the country.
“Then the debates and discussions in the House were constructive. They could elaborately discuss the legislation taking place… Laws used to be discussed and deliberated… Unfortunately, over a period of time… you know what is happening in the House. In the absence of quality debate, courts are unable to fathom the intent and object of the new laws,” the CJI addressed an audience of judges and lawyers. He said the lack of intellectual heft witnessed in the House could be remedied if more lawyers actively participated in public life rather than confine themselves to their legal practice and homes.
He said the leaders of the Independence struggle were lawyers, such as Mahatma Gandhi and Jawaharlal Nehru.
“They sacrificed not only their professions but also their families and property for the struggle…” the CJI exhorted.
The contributions of the Supreme Court to democratic rights enshrined in the Constitution had been immense over the years, he said.
Chief Justice Ramana also noted that the fundamental right of access to justice was evident from the fact that India’s legal services aid machinery catered to 75% of its total population.
Why in News
Recently, the President promulgated Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance 2021 through which the Appellate authorities under nine laws have been replaced with High Courts. The Ordinance has amended the Finance Act 2017 to include provisions related to the composition of search-cum-selection committees, and term of office of members in the Act itself.
The Finance Act 2017: It empowered the central government to notify rules on qualifications of members, terms and conditions of their service, and composition of search-cum-selection committees for 19 tribunals (such as Customs, Excise, and Service Tax Appellate Tribunal).
Search-cum-selection committees: The Chairperson and Members of the Tribunals will be appointed by the central government on the recommendation of a Search-cum-Selection Committee. The Committee will consist of: Chief Justice of India, or a Supreme Court Judge nominated by him, as the Chairperson (with casting vote), Secretaries nominated by the central government, The sitting or outgoing Chairperson, or a retired Supreme Court Judge, or a retired Chief Justice of a High Court. The Secretary of the Ministry under which the Tribunal is constituted (with no voting right).
Term of Office: The term of office for the Chairperson of the tribunals will be of four years or till the attainment of the age of seventy years, whichever is earlier. For other members of the tribunals, the term will be of four years or till the age of sixty-seven years, whichever is earlier.
The Nine Laws (Replacement of Appellate Authorities/Tribunals):
The Cinematograph Act, 1952.
The Trade Marks Act, 1999.
The Copyright Act, 1957.
The Customs Act, 1962.
The Patents Act, 1970.
The Airports Authority of India Act, 1994.
The Control of National Highways (Land and Traffic) Act, 2002.
The Geographical Indications of Goods (Registration and Protection) Act, 1999.
Reason for Replacing Tribunals: Poor Adjudication & Delay: The quality of adjudication has been underwhelming in most cases, the delays have been substantial because the government has struggled to find competent persons willing to accept positions on these tribunals, and litigation has actually become more expensive, as these tribunals added another layer to it. Litigations Against Them: There has been incessant litigation since 1985 by advocate bar associations against the tribunals over serious questions of their independence from the executive. Related Concern: The cases with High courts could increase.
It is a quasi-judicial institution that is set up to deal with problems such as resolving administrative or tax-related disputes. It performs a number of functions like adjudicating disputes, determining rights between contesting parties, making an administrative decision, reviewing an existing administrative decision and so forth. The term ‘Tribunal’ is derived from the word ‘Tribunes’, which means ‘Magistrates of the Classical Roman Republic’. Tribunal is referred to as the office of the ‘Tribunes’ i.e., a Roman official under the monarchy and the republic with the function of protecting the citizen from arbitrary action by the aristocrat magistrates. A Tribunal, generally, is any person or institution having an authority to judge, adjudicate on, or to determine claims or disputes – whether or not it is called a tribunal in its title.
Constitutional Provisions: Tribunals were not originally a part of the Constitution.
The 42 Amendment Act 1976 introduced provision for tribunals in accordance with the recommendations of the Swaran Singh Committee. The Amendment introduced Part XIV-A to the Constitution, which deals with ‘Tribunals’ and contains two articles: Article 323A: It deals with Administrative Tribunals. These are quasi-judicial institutions that resolve disputes related to the recruitment and service conditions of persons engaged in public service.
Article 323B: It deals with tribunals for other subjects such as Taxation, Industrial and labour, Foreign exchange, import and export, Land reforms, Food, Ceiling on urban property, Elections to Parliament and state legislatures, Rent and tenancy rights.
2.India’s fate is tied to the rest of the world
It was through its global interactions that the country defined itself across its history as an independent nation
Ever since Independence, India’s fate has been closely tied to the rest of the world. In some sense, it had no choice. A large, newly independent, impoverished, and impossibly diverse country required active engagement with a variety of partners for its survival, security, and development.
But a constantly evolving international environment presented India not just with opportunities but numerous challenges. Its frontiers were initially poorly demarcated and poorly integrated. India came to have two nuclear-armed neighbours with which it competed for territory. Several sources of domestic insecurity benefited from support from neighbouring countries. And India often found itself at odds with the great powers, ploughing a lonely furrow when it felt its greater interests were threatened, as on intervention in Bangladesh, nuclear non-proliferation, or trade.
Today, the troubles may seem plenty leading with the raging COVID-19 pandemic and its adverse effects on economic growth prospects, especially when coupled with intensifying competition with China and turmoil in Afghanistan. At the same time, India has greater means to tackle them: it is by some measures the sixth largest economy in the world, boasts a well-trained and professional military, and has a growing network of international strategic and economic partners. This brief overview suggests that India’s future, too, will remain intertwined with global affairs.
The long and winding road
India had to adopt a foreign and security posture even before August 15, 1947. Independence and Partition left behind a messy territorial legacy. India’s first leaders opted for flexible and friendly relations with both the U.S. and the Soviet Union and their respective allies. In fact, India initially received the bulk of development and military assistance from the West; it was only from the mid-1950s onwards that the Soviet Union extended support. India also played an activist role in the decolonising world, extending diplomatic and (in some cases) security assistance to independence movements in Asia and Africa and sending military missions to Korea and the Congo.
India’s early efforts were arguably successful in consolidating territorial gains, in accelerating economic growth, and in positioning itself in a leadership role in the post-colonial world. But all these efforts suffered following the 1962 war with China. Despite that immense setback, the world came knocking at India’s door throughout the 1960s. Pakistani military adventurism picked up, resulting in the 1965 war. The question of Indian nuclear weapons acquired greater urgency following China’s test, even as Indian forces pushed back against China in Sikkim in 1967. There were also important economic strides made, including the Green Revolution, undertaken with considerable foreign technical and financial assistance.
The 1970s and the 1980s presented India with a more contained canvas. The Indo-Soviet Treaty of Friendship and Cooperation and the Bangladesh war altered India’s relations with both superpowers and shifted the dynamics of the rivalry with Pakistan. The Indian economy remained relatively closed at a time when other Asian economies had begun to liberalise. This period saw security challenges come closer to home: the peaceful nuclear explosion, the annexation of Sikkim, competition with Pakistan over Siachen, a stand-off with China, an intervention in Sri Lanka, and a countercoup in the Maldives. Domestic security challenges also assumed an external angle, whether in Punjab, Jammu and Kashmir, Tamil Nadu, or the North-east. Some efforts at resetting relations with the United States, liberalising the economy, and pursuing the nuclear option were made, but the outcomes were inconclusive.
After the Cold War
The post-Cold War era, therefore, presented India with a range of challenges. The 1991 Gulf war resulted in a balance of payments crisis and the liberalisation of the economy. India then adopted a range of reforms to liberalise the economy, but it faced more than just economic turmoil. The assassination of Rajiv Gandhi, the 1993 Mumbai bombings, and the insurgency in Jammu and Kashmir presented grave new security challenges. Yet, the period that followed witnessed some important developments under the prime ministership of P.V. Narasimha Rao: the advent of the Look East Policy and relations with the Association of Southeast Asian Nations; the establishment of diplomatic ties with Israel; the signing of a border peace and tranquility agreement with China; initial military contacts with the U.S., and preparations for nuclear tests.
The Atal Bihari Vajpayee government built further upon these developments, conducting a series of tests in 1998, negotiating a return to normal relations with most major powers within two years, and concluding an important set of agreements with China in 2003. At the same time, efforts at normalising ties with Pakistan were frustrated by the Kargil war, the hijacking of Indian Airlines flight IC-814 to Kandahar (Afghanistan), and the 2001 attack on India’s Parliament. These years also witnessed a rapid growth of the Indian economy, fuelled by a boom in information and communication technology companies, the services sector, and a rising consumer market.
After 2004, the Manmohan Singh government worked extensively to resolve the outstanding question of India’s nuclear status. By eliminating barriers to ‘dual use’ technologies and equipment, as well as a host of associated export controls, India had the opportunity to establish robust defence relations with the U.S. and its allies. Yet, the global financial crisis in 2008-09 presaged a slight change in approach, whereby India sought to partner with China and other rising powers on institutional reform, financial lending, climate change, and sovereignty. Coupled with an economic deceleration after 2011, India’s relations with the U.S. and Europe grew more contentious over the next three years.
Beginning in 2013, a more assertive China began to test India on the border and undermine Indian interests in South Asia and the Indian Ocean Region. After the second such border crisis in late 2014, a more competitive India-China relationship emerged. With further stand-offs at Doklam and Ladakh between 2017 and 2021, India opted to boycott China’s Belt and Road Initiative, raise barriers to Chinese investment, ban some Chinese technology, and consult more closely with other balancing powers in the Indo-Pacific. Security relations and understandings with the U.S. and its allies (Japan, France, Australia) accelerated after 2014. A greater emphasis on neighbourhood connectivity was adopted. While efforts were made to engage with Pakistan between 2014 and 2016, a series of Pakistani provocations resulted in a deep freeze in India-Pakistan relations, further reinforced by the terrorist attacks at Uri and Pulwama and Indian reprisals. Meanwhile, India’s relations with West Asian partners assumed greater importance.
An international India
India’s objectives have been broadly consistent: development, regional security, a balance of power, and the shaping of international consensus to be more amenable to Indian interests. At the same time, India’s means and the international landscape have changed, as have domestic political factors. This necessitated different approaches to international engagement between 1947 and 1962, between 1971 and 1991, and between 1991 and 2008.
As India enters its 75th year of independence, there are plenty of reasons for cautious optimism about its place in the world. Yet, the ravages of COVID-19 and growing international competition also underscore the difficulties that India will likely face as it attempts to transform into a prosperous middle-income country, a secure polity, and a proactive shaper of international norms. What is certain is that India will not have the luxury to turn inwards. In fact, it was through its global interactions that India defined itself throughout its history as an independent nation.
3.Rising judicial vacancies pose challenge
The SC has said that the government’s ‘recalcitrant attitude’ has affected resolution of important cases
Justice Rohinton Nariman’s retirement and the entry of Justice L. Nageswara Rao into the five-judge Supreme Court Collegium, headed by Chief Justice of India N.V. Ramana, come at a crucial time when judicial vacancies in the Supreme Court are set to climb to 10 with the retirement of Justice Navin Sinha in three days.
The present Collegium of Chief Justice Ramana and Justices U.U. Lalit, A.M. Khanwilkar, D.Y. Chandrachud and Rao will remain intact for about 10 months and could even script history by appointing a woman judge who could one day be India’s first woman Chief Justice of India.
Justice Rao, a direct appointee from the Bar, may evince interest to have more direct appointments from the Supreme Court Bar to the Bench of the highest court, given the exhortations from the Bar. Justice Rao will also be the first to exit the Collegium with his retirement in June 2022, followed by Justice Khanwilkar in July and Chief Justice Ramana himself in August the same year.
Justice Lalit will then take over as the top judge as per seniority. His tenure as the Chief Justice of India will, however, be of just a little over two months till November 2022. Justice Chandrachud, again as per seniority, will succeed Justice Lalit as CJI till November 2024.
Frozen since 2019
Judicial appointments to the Supreme Court have remained frozen since September 2019. That year saw 10 appointments to the Supreme Court in three batches. Justices Dinesh Maheshwari and Sanjeev Khanna were appointed in January 2019. Justices B.R. Gavai, Surya Kant, Aniruddha Bose and A.S. Bopanna were appointed in May 2019. The last batch of Supreme Court appointments in September 2019 were of Justices Krishna Murari, S. Ravindra Bhat, V. Ramasubramanian and Hrishikesh Roy. The oldest vacancy is that of Chief Justice Ranjan Gogoi, who retired in November 2019.
The tenure of Chief Justice S.A. Bobde did not see a single judicial appointment to the Supreme Court, though frequent discussions were held by the Collegium.
The present Collegium can remedy the drop in judicial strength in the Supreme Court. Proportionate representation from the High Courts and seniority, though only conventions and not constitutional or legal mandates, carry weight during the appointment process. Merit is a dominant criterion.
According to the Law Ministry records of August 1, the senior-most Chief Justices of High Courts, as per their initial appointments in 2003, 2004 and 2005, are Karnataka Chief Justice A.S. Oka in 2003, followed by Delhi Chief Justice D.N. Patel and Tripura Chief Justice A.A. Kureshi. Both Chief Justices Patel and Kureshi share the same date of initial appointment — March 7, 2004. Gujarat Chief Justice Vikram Nath was initially appointed in September 2004 while Uttarakhand Chief Justice R.S. Chauhan, Punjab and Haryana Chief Justice Ravi Shanker Jha and Sikkim Chief Justice J.K. Maheshwari were all initially appointed in 2005. The parent High Courts of these judges, except in the cases of Chief Justices Jha and Maheshwari, are already represented in the Supreme Court. The parent High court of the two judges is Madhya Pradesh.
On the criterion of proportionate representation, according to the Ministry records, Patna Chief Justice Sanjay Karol’s parent High Court of Himachal Pradesh is not represented in the Supreme Court. Similarly, Rajasthan Chief Justice Indrajit Mahanty’s parent High Court of Orissa is not represented in the top court. There will be no representation from the Patna High Court in the Supreme Court after the exit of Justice Navin Sinha on August 18. Jharkhand Chief Justice Ravi Ranjan’s parent High Court is Patna.
Telangana Chief Justice Hima Kohli is the sole woman High Court Chief Justice now. The name of Justice B.V. Nagarathna from the Karnataka High Court was reported some months ago to be under consideration to replace Justice Indu Malhotra’s vacancy in the Supreme Court.
An equally serious issue is the fading judicial strength in the 25 High Courts. Ministry figures of August reveal 455 judicial vacancies in the High Courts where the total sanctioned strength is 1,098.
A few days ago, a Supreme Court Bench led by Justice S.K. Kaul lashed out at the Centre’s delay, for years on end, to act on the recommendations of the Collegium and appoint judges to High Courts. The Bench said that the government’s “recalcitrant attitude” has affected the adjudication of important cases, especially high-stake commercial issues.