1.Income and quotas

SC lays bare the limits of using economic criterion to determine reservation eligibility

The Supreme Court’s ruling that economic criterion alone cannot be used to classify a member of a Backward Class as belonging to the ‘creamy layer’ adds an interesting nuance to the jurisprudence of affirmative action. There was a time when backwardness was primarily related to the inadequate social and educational advancement of a group. Ever since the Court, in Indra Sawhney (1992), introduced the concept of ‘creamy layer’ — a term describing the well-off among the Backward Classes — and declared that this section should be denied reservation benefits, the original idea of including groups based on social backwardness was matched by a parallel exercise to exclude the more advanced among them. This position has crystallised into law. Many support the formulation that once caste is accepted as a basis for determining backwardness, there is nothing wrong in excluding the affluent among the eligible castes. The Union government has unreservedly accepted the ‘creamy layer’ rule, and formulated criteria for identifying those who fall under the category. The proponents of economic criteria feel that genuine social justice means reservation benefits should be restricted to the poorer among the backward; while sections championing Backward Class assertion disfavour any dilution of the social basis for reservation.

The Court’s latest judgment in a Haryana case corrects a grave error by the State. It has struck down a notification fixing an annual income of ₹6 lakh as the sole criterion to identify whether a family belongs to the creamy layer. It was contrary to Indra Sawhney that had spoken of different criteria, including being the children of high-ranking constitutional functionaries, employees of a certain rank in the Union and State governments, those affluent enough to employ others, or with significant property and agricultural holdings and, of course, an identified annual income. The Court has found that the Haryana criterion based on income alone was contrary to its own law that specifies that the creamy layer would be identified through social, economic and other factors. The Constitution permitted special provisions in favour of ‘socially and educationally backward classes’ through the first Amendment, as well as reservation in government employment for ‘backward classes’. Judicial discourse introduced a 50% ceiling and the creamy layer concept as constitutional limitations on reservation benefits. However, the 103rd Constitution Amendment, by which 10% reservation for the ‘economically weaker sections’ (EWS) has been introduced, has significantly altered the affirmative action programme. With the current income ceiling being ₹8 lakh per annum for availing of both OBC and EWS quotas, there is a strange and questionable balance between the OBC and EWS segments in terms of eligibility, even though the size of the respective quotas vary.

Why in News

Recently, some MPs have raised the issue of defining Creamy Layer in the ongoing Monsoon Session of Parliament.

• Further, the Justice Rohini committee is considering the sub-categorization of OBC quota and if any particular community or group of communities are benefiting most from the OBC quota and how to iron out anomalies.

Key Points

• Background:
  • Based on the recommendation of the Second Backward Classes Commission (Mandal Commission), the government in August, 1990 had notified 27% reservation for Socially and Educationally Backward Classes (SEBCs) in vacancies in civil posts and services that are to be filled on direct recruitment.
  • After this was challenged, the Supreme Court in November, 1992 (Indira Sawhney case) upheld 27% reservation for OBCs, subject to exclusion of the creamy layer.
• Definition:
  • It is a concept that sets a threshold within which OBC reservation benefits are applicable.
  • While there is a 27% quota for OBCs in government jobs and higher educational institutions, those falling within the “creamy layer” (various categories based on income and parents’ rank) cannot get the benefits of this quota.
  • Other than the income limit, the current definition of the creamy layer remains the same.
• Categories defined under Creamy Layer:
  • Income beyond 8 lakh:
    • For those not in government, the current threshold is an income of Rs 8 lakh per year.
    • The income threshold is supposed to be raised every three years. It was last revised in 2017 (more than three years now).
  • Parents’ rank: For children of government employees, the threshold is based on their parents’ rank and not income.
    • For instance, an individual is considered to fall within the creamy layer if either of his or her parents is in a constitutional post; if either parent has been directly recruited in Group-A; or if both parents are in Group-B services.
    • If the parents enter Group-A through promotion before the age of 40, their children will be in the creamy layer.
    • Children of a Colonel or higher-ranked officer in the Army, and children of officers of similar ranks in the Navy and Air Force, too, come under the creamy layer. There are other criteria as well.
• Government’s Proposal:
  • A draft Cabinet note has stated that the creamy layer will be determined on all income, including salary calculated for income tax, but not agriculture income.
  • The government is considering a consensus on Rs 12 lakh, whereas Parliament Committee has recommended to raise upto 15 lakh per year.
    • It also recommended excluding salary and agricultural revenue while calculating the annual income ceiling for the creamy layer category of OBCs

2.Negotiating the new global climate policy

Reducing per-person emissions to the global average as a first step to national net-zero requires a human rights frame

The policy significance of the recent report of the United Nations (UN) Intergovernmental Panel on Climate Change (IPCC) is that reaching net zero alone is not enough as it is the cumulative emissions up to net zero which determine the temperature that is reached, and that a global policy which considers only current emissions will not limit global warming and its adverse effects.

Restricting well-being

For 30 years, climate negotiations have struggled with a frame that created an imbalance between countries sharing global carbon space, the only limited natural resource. Development depleted carbon space causing the climate problem and developing countries are being pressured to limit their use of the remaining space as the solution. At the G20 Climate and Energy Ministerial meeting in July, India proposed that major economies bring down their own per capita emissions to the global average by 2030.

Reframing negotiations in terms of bringing per-person emissions, or human well-being, as the essential first step highlights that merely achieving net zero of current emissions by 2050 — the proposal of the G7 — restricts well-being and is unacceptable as global policy. Varying levels of per-capita emissions converging to a common point will allow those who have already used more than their fair share of the carbon space a larger share of the remaining space than countries such as India which need the remaining carbon space to grow to comparable levels of well-being.

Per capita emissions

The policy significance of the imbalance becomes clear when per-capita emissions are compared. The world’s per capita greenhouse gas emissions are 6.55 tonnes of carbon dioxide. India’s per capita emission at 1.96 tonnes is less than one-third; emissions of the United States, Canada and Australia are more than two-a-half times; Germany, the United Kingdom and France are above, and China, at 6.4 tonnes, is just below the global average. Accepting ‘net zero’ emissions by 2050 effectively prevents India’s urbanisation and shift of the rural population into the middle class.

India is rightly objecting to the obfuscation, as the Objective of the Climate Treaty is “stabilization of greenhouse gas concentrations”. By contributing over 60% of global cumulative emissions, with just one-fourth of the global population, North America and Europe are responsible for nearly 970 billion tonnes of carbon emissions.

Whereas, the world’s remaining carbon budget — the total amount we can emit to have a chance of limiting warming to 1.5° C — is only 400 gigatonnes of carbon dioxide, and the U.S. alone has contributed this amount for its high standard of living. For a global consensus, such countries will need some flexibility in the new climate policy.

Emission sources

The reframing should stress ‘essential’ emissions to justify the flexibility and the need. Infrastructure, or construction, essential for urbanisation and quality of living is responsible for two-fifths of global carbon dioxide emissions from fuel combustion and 25% of emissions overall. These emissions arise from energy intensive cement production and half of the steel produced which is used in construction, both having no substitutes.

The varying levels of per capita emissions are accounted for by expressways and the urban boom in the U.S. and Europe between 1950 and 2000, before China began its infrastructure push, leading to per-capita material use that is four times that of China. The U.S. first recognised the implications of its way of life preparing for the Stockholm Summit in 1972, but then shaped the global agenda in terms of current emissions which were going to grow in developing countries as they urbanised, rather than the scientifically correct stabilisation of cumulative emissions, to draw attention away from its own urbanisation and lifestyle.

Ideas and implications

New ideas such as ‘climate justice’, coming from India have three strategic implications. First, a focus on drivers and patterns of natural resource, not just anthropogenic emissions, highlights that as against measuring emissions when considering solutions, the causes become important, in particular, the shift of the human population from rural to urban areas. Second, the IPCC report has reiterated that impacts such as a rise in sea level, variability of rainfall and temperature increases will not be reversible for some time even after emissions fall. The adverse effects of climate change, or adaptation, are no longer a local but a global concern. Third, consequently, multilateral cooperation will shift from common rules monitoring emissions based on international environmental law to common goals of human well-being as a universal human right based on a policy consensus.

Shifting from environmental damage and its implications for well-being to comparable levels of well-being within global ecological limits provides a very different conceptual frame to understanding climate change and the negotiations. First, there is a need for a debate on what society values and whether societal priorities or market exchange and pricing mechanisms determine what is to be valued, produced, and consumed. Second, with consumption of the urban middle class now more important than production in terms of GDP, it has become clear that the rising prosperity of the poor and its need for infrastructure is not endangering planetary life support systems as stress on population and national emissions suggests. Third, with different civilisational values, consumption of the middle class in developing countries is less wasteful than in the first phase of urbanisation. These socio-economic trends are not captured in the models based on natural sciences designed for countries whose emissions have peaked with questionable global policy relevance.

For a new policy objective

It took 25 years for the ‘Paris Agreement’ to reverse the defining feature of the ‘Framework Convention’, the division of countries into ‘annexes’, while providing for a ‘common cause’ instead of commitments. India’s proposal supports this evolution. Moving away from regulating emissions to recognising ecological limits makes the subsidiary bodies for scientific advice and implementation review established to ratchet-up commitments redundant. Sharing prosperity should be the objective of new intergovernmental mechanisms, with the involvement of the private sector, for example, supporting solar energy, joint research in new crop varieties and exchanging experiences on infrastructure viability. We now know that climate change is not just an environmental or sustainable development concern involving trade-offs. It requires a civilisational transformation in what we value, the way we live, and how we interact with one another.

3.Probe agencies too hit by lack of manpower: CJI

Bench was hearing plea about hundreds of criminal cases pending against MPs and MLAs, both sitting and former

The Supreme Court on Wednesday said probe agencies such as the Central Bureau of Investigation (CBI) suffered from the dearth of manpower and infrastructure that the judiciary too faced. Both were overburdened.

“Everybody says ‘CBI, CBI…’ We don’t want to demoralise the investigative agencies. They are overburdened… Similarly, one trial court handles 1,000 cases. How do you expect them to function? We had asked for special courts to hear exclusively cases under specific legislation… but nothing,” Chief Justice of India (CJI) N.V. Ramana, heading a Special Bench of three judges, remarked orally.

Pending cases

The Bench, including Justices D.Y. Chandrachud and Surya Kant, was hearing a petition about the hundreds of criminal cases pending against MPs and MLAs, both sitting and former, for years together. Some of these cases, investigated by agencies such as the CBI and the Enforcement Directorate (ED), have been pending for over a decade.

A report submitted by the court’s amicus curiae, senior advocate Vijay Hansaria, assisted by advocate Sneha Kalita, said 51 MPs and 71 MLAs were accused of offences under the Prevention of Money Laundering Act (PMLA), 2002.

Similarly, out of the 121 cases pending trial against MPs and MLAs before the CBI courts across the country, 58 were punishable with life imprisonment. In 45 cases, even the charges have not been framed, though the offences were alleged to have been committed several years ago.

A total of 37 CBI cases against legislators were continuing in the stage of investigation for years on end now. One of these cases, according to the CBI, was “expected” to be completed by 2030, the report said.

“In some cases, you have not filed a chargesheet in 10 or 15 years… In one case, you have attached assets worth over ₹200 crore, but not filed a chargesheet. Simply attaching property will not serve any purpose,” Chief Justice Ramana addressed Solicitor-General Tushar Mehta, who appeared for both the CBI and the ED.

“The information given by the ED and CBI present a really, shocking, disturbing and gloomy picture,” Mr. Hansaria submitted.

The Chief Justice reasoned with Mr. Mehta to complete the trial in these cases quickly rather than have them hanging over the heads of the accused like a Damocles sword.

Plea for directive

The Solicitor-General urged the Bench to pass a judicial order directing lower courts to complete the pending trial proceedings in a “mandatory time-bound manner”, possibly within the next six months.

He submitted that in some cases, the High Courts intervened and granted stay of the trial.

But the CJI did not agree, saying the High Courts had stayed trial in only seven cases and the Supreme Court in one.

Mr. Mehta then said ED cases were held up because they spanned to tax havens abroad, which refused to cooperate with investigations.

The CJI stated efforts would be made to “rationalise” the number of cases before each trial court. The judiciary was slowly but surely dealing with the problem of scarcity of judges — High Courts have 455 judicial vacancies as on August 1. Besides, lower courts also have other urgent cases of bail, custody matters and so on to hear and decide.

The Bench said a mechanism would be put in place soon to monitor the progress of criminal trials involving legislators soon. This would include special courts.

In the previous hearing, the apex court questioned the Centre’s commitment towards the speedy trial and prosecution of criminal politicians. It also directed that a criminal case against an MP or MLA could be withdrawn only after getting the consent of the High Court concerned.

“We deem it appropriate to direct that no prosecution against a sitting or former MP or MLA shall be withdrawn without the leave of the High Court… Various State governments have resorted to withdrawal of numerous criminal cases pending against MP/MLA by utilising the power vested under Section 321 CrPC. The power under Section 321 CrPC is a responsibility which is to be utilised in public interest, and cannot be used for extraneous and political considerations. This power is required to be utilised with utmost good faith to serve the larger public interest,” a three-judge Bench led by the CJI had directed in its last order.

Supreme Court History

The Federal Court of India was created as per the Government of India Act 1935.

This court settled disputes between provinces and federal states and heard appeals against judgements of the high courts.

After independence, the Federal Court and the Judicial Committee of the Privy Council were replaced by the Supreme Court of India, which came into being in January 1950.

The Constitution of 1950 envisaged a Supreme Court with one Chief Justice and 7 puisne Judges.

The number of SC judges was increased by the Parliament and currently, there are 34 judges including the Chief Justice of India (CJI).

Supreme Court of India – Functions

It takes up appeals against the verdicts of the High Courts, other courts and tribunals.

It settles disputes between various government authorities, between state governments, and between the centre and any state government.

It also hears matters which the President refers to it, in its advisory role.

The SC can also take up cases suo moto (on its own).

The law that SC declares is binding on all the courts in India and on the Union as well as the state governments.

Supreme Court Jurisdiction

The jurisdiction of the SC is of three types:

Original – Read in detail about Original Jurisdiction of the Supreme Court in the linked article.

Advisory – Notes on Advisory Jurisdiction of the Supreme Court are given in the linked article.

Appellate

Supreme Court Composition

Including the CJI, there are 34 judges in the Supreme Court.

The judges sit in benches of 2 or 3 (called a Division Bench) or in benches of 5 or more (called a Constitutional Bench) when there are matters of fundamental questions of the law is to be decided.

The Procedure of the Supreme Court of India

The Supreme Court of India has powers to consult the President to regulate the practice and procedure of the Court.

The Constitutional Cases are usually decided by a bench consisting of five judges whereas other cases are decided by a bench of at least three judges.

The seat of Supreme Court

As per the Constitution of India, Delhi is declared as the seat of the Supreme Court of India. However, the Chief Justice of India has the power to assign another place (s) as the seat of the Supreme Court. This is only an optional provision and not mandatory.

SC Judge Eligibility

As per Article 124, an Indian citizen who is below 65 years of age is eligible to be recommended for appointment as a judge of the SC if:

he/she has been a judge of one or more High Courts, for at least 5 years, or

he/she has been an advocate in one or more High Courts for at least 10 years, or

he/she is in the opinion of the President, a distinguished jurist.

Independence of Judiciary

The Constitution has many provisions to ensure the judiciary’s independence. They are discussed below:

Security of tenure: The judges of the SC are given security of tenure. Once appointed, they will retain their office until the age of 65 years. They can be removed only by a presidential order on grounds of proven misbehaviour and/or incapacity. This requires a Special Majority according to Article 368. Read more about the types of majorities in Parliament in the linked article.

Salaries and allowances: The judges of the SC enjoy good salaries and allowances and these cannot be decreased except in the case of a financial emergency. The expenses of the High Court are charged on the Consolidated Fund of the State, which is not subject to vote in the state legislature.

Powers and Jurisdiction: The SC’s powers and jurisdiction can only be added by the Parliament and not be curtailed.

The conduct of any judge of the Supreme Court in the discharge of his/her duties cannot be discussed in the legislature.

The SC has the power to punish any person for its contempt, as per Article 129. (Read about Contempt of Court in India in the linked article.)

Separation of the Judiciary from the Executive: A Directive Principle of State Policy says that the state shall take steps to separate the judiciary from the executive in the public services of the state. According to Article 50, there shall be a separate judicial service free from executive control.