NOTE: Please remember that following ‘answers’ are NOT ‘model answers’. They are NOT synopsis too if we go by definition of the term. What we are providing is content that both meets demand of the question and at the same time gives you extra points in the form of background information.
Q1. Debating the efficacy of the collegium system, evaluate if there is a need for the reintroduction of the National Judicial Appointments Commission (NJAC) Bill. 10M
Collegium system is the result of interpretation of Article 124 of the Indian Constitution, which says that every judge of the Supreme Court shall be appointed by the President in consultation with judges/Chief Justice of India in the three judges’ cases spanning from 1981 to 1999.
It was the Second Judges Case (Supreme Court Advocate on Record Bar Association VS Union of India), 1993 resulted in the birth of the collegium system. This judgment:
EFFICACY OF COLLEGIUM SYSTEM:
- Independence of Judiciary: was upheld since there was no executive interference.
- Room for Criticism: was created since the President could send back a nomination with valid reasons.
- Principle of separation; It upholds the seniority of candidates and is supposed to abide by the principles of separation of powers in the Constitution.
- Competency; Only judicial trained mind can judge who is capable and competent in law to become a judge of court.
- Alleged Favoritism: where the judges were appointing their friends and favorites.
- Alleged Nepotism: Family members and relatives were chosen above merit.
- Alleged Casteism: where members of one’s caste and religion were chosen above merit.
- Lacks Transparency: since it was a closed door affair.
- Exclusivity: where talented junior judges were not selected.
- Administrative Burden: on background assessment of the nominees.
- Concentration of Powers: which is against democracy which resulted due to judges appointing judges, creating a state within a state.
- Violates Principles of Separation of Powers: where one organ of State acts as check and balance for the other.
- Violates Global Best practice: where appointment of judges is left to the Executive as in case of democracies like the USA.
Due to the above weak efficacy reasons, there is a need to reintroduce the National Judicial Appointments Commission. Below are the ways in which NJAC would resolve the above issues:
- Non-Judicial Members: Avoids the creation of State within the State and concentration of powers.
- Nomination of juniors: can be proposed by eminent persons as well.
- Transparency: since minutes of meeting would be published. This would also hinder nepotism, casteism and favoritism.
- Reduced Administrative Burden: as the Executive is involved in the process.
However, the NJAC was struck down under the condition that it violates the basic structure doctrine of independence of Judiciary in Supreme Court Advocate on Records VS Union of India case, 2015, due to the below reasons:
- The Majority decision would rest with the non-judicial members. The Judges would need the help of non-judicial members to push a name.
Now the collegium system is reinstated. But, it needs to be replaced with a new NJAC body, where the will of the judiciary would be upheld. The following changes can be introduced in the new bill:
- If all the Judicial members agree on a name, that nomination should be done.
- The nominations can be made an open affair, like done in other democracies like Australia.
The first judge case – S.P. Gupta v. Union of India (1981)
- In this case of S.P. Gupta v Union of India, the matter regarding the appointment of Judges for the second time came in highlights. This case is also known by the name of First Judges Case also.
- It ruled that the process of consultation with the CJI and other judges did not require a consensus about recommendations. Essentially, the ruling gave the central government “primacy in judicial appointments.”
2nd Judge case
- Interpreted the word “consultation” in Article 124 as binding consultation on the President.
- The consultation would be given by a new body of Judges called the collegium.
- The collegium after this case consisted of only the Chief Justice of India.
- The collegium would make the nomination to the SC judges, but the President had the power to reject the nomination once with valid reasons. But, if the collegium returns back its recommendation, the appointment must be made.
In the Third Judges Case (Presidential Reference under Article 143 by President KR Narayan), 1999 clarified the composition and function of the collegium as:
- The Collegium would be a multi-member body with 5 judges – 4 SC judges and the Chief Justice of India.
- If even 2 of them have reservations regarding a nomination, the judge won’t be appointed.
NJAC – National judicial Appointments Commission:
- This was created by the 99th Constitutional Amendment Act, 2014. It amended Article 124 and created Article 124 A – the President would nominate the SC judges based on the consultation by NJAC.
- NJAC is a 6 member body. There are 3 judicial and 3 non-judicial members. The Union Law Minister is the compulsory member among non-judicial members. The other 2 members were called the eminent persons who would be selected by a 3 member body – Chief Justice of India, Leader of opposition in Lok Sabha and the Prime Minister of India.
NEED OF COLLEGIUM:
- to protect the independence of the judiciary enshrined under Article 50. This was declared as the part of basic Structure Doctrine by the Kesavananda Bharati Case, 1973.
Q2. Discuss the impact of centrally sponsored schemes on the autonomy of the states. Does it violate the seventh schedule of the constitution? Analyze. 10M
Centrally Sponsored Schemes are jointly implemented by Center and States. Usually these schemes are made on subjects on Concurrent List under Seventh Schedule of the Indian Constitution.
Centrally Sponsored Schemes are of three types – Core schemes, Core of the Core schemes and Optional Schemes. Some of the Centrally Sponsored scheme are:
IMPACT OF CENTRALLY SPONSORED SCHEME ON STATES AUTONOMY:
- Violates Financial Autonomy: since the States have to share the burden of finances of the Centrally Sponsored scheme to around 10-40 percent.
- Violates Executive Autonomy: since many centrally sponsored schemes are brought out in the elements of the State list.
- Eg: Ayushman Bharat Yojana on Health.
- Violate Political Autonomy: especially in States where the ruling party at center and States are different. Implementation of such centrally sponsored schemes would enhance the political mileage of the central ruling party.
- The Seventh Schedule of the Indian Constitution has three lists. It gives the federal distribution of powers into State List, Central List and Concurrent List.
- This demarcates the Executive and legislative competencies of the Central and State government. The Center can make laws on both the central list and the Concurrent List.
- The State can make laws on State and Concurrent List. But if the laws made in a concurrent list are in conflict, the Central law would prevail.
Reason for violation of the seventh schedule of the constitution by Centrally Sponsored Scheme:
- Violates executive domain; – Center can make schemes on the subjects listed on the State list like health. This violates the executive domain demarcation under the 7th schedule.
- Increase in financial burden; – Financial burden of the State would be increased which makes it less capable of executing the scheme listed on the State list.
- Violates legislative demarcation;- Some Centrally Sponsored Schemes have legislative backing. This violates the legislative demarcation made under the seventh schedule.
- Financial commission;- The Finance Commission doesn’t deal exclusively with Centrally Sponsored schemes and grants under Article 282 of the Indian Constitution. Hence, it fails to defend the rights of the State under the Seventh schedule.
- Colonial legacy;- Such intrusion into Seventh Schedule represents colonial legacy and the colonial style use of the Seventh Schedule where the State list was made for eyewash under Government of India Act, 1935.
According to Bibek Debroy, Chairman, Economic Advisory Council to the PM, there should be a review of the Centrally Sponsored scheme and the Seventh Schedule itself. The review is required to bring it out of the colonial legacy. He also suggests that the Centrally Sponsored scheme must be based on Zero Budgeting and must be made outcome based.
The States must be given option to come up with their own schemes with the objectives listed out from Centre.
Q3.In the context of domestic violence, how can people be made aware of the consequences of their actions? 10M
Domestic violence is a pattern of abusive behavior in any relationship that is used by one partner to gain or maintain control over another intimate partner. Domestic violence includes Physical abuse, Emotional abuse, Psychological abuse, Sexual abuse etc.
- People indulging in domestic violence are unaware of the violation of their partner’s rights, they have lower emotional intelligence. They will also not be aware of the consequences of their actions, as they are simply doing domestic violence because of their gains or short-term satisfaction.
People can be made aware of the consequences of their actions through,
- Persuasion – Persuasion through highly credible, attractive, trustworthy persons can be made aware of their consequences. When people receive messages from them, they are likely to accept them and make attitudinal changes.
- Identification/liking – Identification is when people are influenced by someone who is liked and respected such as a celebrity, politician, teacher etc. When these personalities raise awareness about the negative effects of domestic violence in their films or through their personal lives, people are likely to be aware of the real consequences.
- Authority – People are more willing to be influenced by authority figures. One reason authorities are influential is that they are often experts and by following an authority’s directives, people can usually choose correctly without having to think hard about the issue themselves.
- Informational influence (or social proof)- When a person is in a situation where they are unsure of the correct way to behave, they will often look to others for clues concerning the correct behaviour.
- People conform because they believe that other’s interpretation of an ambiguous situation is more accurate and will help them to choose an appropriate course of action.
- Socialization – Through which people learn the values and norms of a given society. A person learns to control his impulses. It helps to control human behaviour. Educational institutions, peer groups, religion, and family play an important role in socialization.
- Media – When a person receives new information from the media, they are more likely to change their cognitive attitude towards other people i.e, knowledge of ethical rules and judgments of what is good and what is bad.
- Legal authority – When the state imposes legal punishment for domestic violence and acts are implemented non-partially, then people are more likely to understand the consequences of their actions.
Domestic violence cases in India are more inclined toward women compared to men. This is a direct reflection of a lack of compassion, humanity, and love towards women. Men need to be aware of the consequences of their actions and need to change their attitude towards women and their rights.