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CURRENT AFFAIRS 16-07-2018

Indian Judiciary & The Many Ongoing Crisis

Relevancy

  • GS Paper-2, Judiciary

What is the current crisis in Indian Judiciary?

  • The prevailing extraordinary socio-political situation has brought India’s judiciary in the midst of a crisis.
  • Of late the Indian judiciary is repeatedly being accused of overreach and it also presently facing unprecedented divisions among its ranks.
  • Notably, four senior judges went public in early 2018 with grievances against the Chief Justice of India (CJI) and even seemed to question his neutrality.
  • The issues substantively raised concerns about the CJI’s alleged bias in allocating benches for cases autocratically and nefarious manner.
  • Subsequently, a motion of impeachment was moved against the CJI and the integrity of the institution stood to critical scrutiny.
  • Presently, a compromise is said to have reached and the CJI has apparently commissioned a more inclusive approach for allocation of cases to judges.

Why the tussle regarding the appointment of judges?

  • The collegium system was constituted to end government’s control over judicial appointments and to insulate the institution from executive bias.
  • Nonetheless, as collegium has been very opaque, it isn’t constitutionally prudent to demand the acceptance of all judicially recommended names.
  • The current system has hence inherently led to tensions between the government and the judges due to this structural flaw.
  • But, the NJAC (National Judicial Appointments Commission), which was proposed to replace the collegium, was struck down by the Supreme Court.
  • Notably, there was near unanimity in the political class that judges should not have absolute power to appoint other judges.
  • A “Memorandum of Procedure” for appointments is now being drawn by the courts to replace collegium, but the delay is eroding the credibility of judges.

How was the judiciary-executive relationship during the initial years after the independence?

  • During the initial years of our republic, most of the MP’s were freedom fighters and the government reposed faith in their intent and vision.
  • But over the years, as there was a clear erosion of nobility in law making, the courts had to step in to protect constitutional values.
  • In the Golaknath case in 1967, Supreme Court categorically stated that the parliament can’t amend the fundamental rights.
  • But the subsequent Sankari Prasad case and Sajjan Singh case restored parliament’s right to alter any part of the constitution.
  • These judgements stress the need for constitution to remain a dynamic document across ages, which can be changed as per the needs of the time.
  • But nonetheless, as a consequence, this implicitly provided room for parliamentary dictatorship to emerge.
  • These tensions finally culminated in the evolution of a “basic structure doctrine”, which was a compromise between extremes.
  • The courts upheld the power of the parliament to amend anything in the constitution as long as it didn’t violate the Basic Values and Structures in it.
  • Interestingly, the Basic Structure was defined broadly by the judges, and has thus far proved robust to judge issues on a case by case basis.
  • In other words, it means, while adhering to the constitution (the letter), a government also needs adhere to constitutionalism (the spirit).

Why should judiciary be independent?

  • India has designed its polity as a federal democracy, with clear vertical division of power between the union government and states governments.
  • Additionally, there is also a horizontal division of power between different organs of the state like legislature, and executive.
  • In this context, disputes are bound to arise due to some overlapping domains and other aspects that are open to interpretation.
  • As these are disputes between constitutional authorities, there is an inherent need for a constitutionally protected independent judiciary to address them.
  • Also, people have some inherent rights and other constitutionally guaranteed rights, and the responsibility of protecting them is vested with the government.
  • An independent judiciary is also needed to ensure that people’s rights are protected and governments are held accountable for violations in this regard.
  • Independence of judiciary is vital for successful democracies and consequently, judges also need to be neutral and independent for the same.

 Why should the judiciary be empowered to block some policies and bills?

  • Independent judiciary constrains the functionality of democratically elected governments and hence the latter tends to curtail the former’s freedom.
  • Even our first PM Nehru, had iterated that judiciary can point of certain mistakes made by the government/parliament, but can’t dictate terms to it.
  • The “Kesavananda Bharati Verdict” that propounded the “Basic Structure Doctrine” was a significant landmark in judicial independence.
  • It sought to elevate judiciary’s right to strike down even popularly voted legislations, if it violated the basic contours of the constitution.
  • In essence, this safeguards minorities and politically under-represented and vulnerable sections from being subjected to authoritative majoritarianism.
  • Notably, in our “First Past the Post” election, there is always the risk of even parties that aggregate 30% votes to possibly secure full majority.
  • This being the case, it is important to force governments to build consensus (over and above mere numbers) for ensuring inclusive governance.
  • It is also to be noted that our very constitution was built through consensus and not through majority in the houses.

Why does judiciary need to be innovative?

  • Governments of the 1970s and 80s (when tensions began) sought a conformist judiciary that would merely tow the constitution in letter.
  • This implies, recognizing the right of the parliament to amend any part of the constitution at will and also to not interfere in government policy decisions.
  • But innovative judges of the time held steadfast to ensure that constitution was protected in spirit, even if it meant tweaking it a little in letter.
  • Their view was that, innovation in judiciary is indispensible for establishing a liberal social and democratic order in the Indian context.
  • Notably, in the aftermath of the national emergency in 1975, judiciary as an institution was strengthened greatly by enhancing its autonomy.
  • Importantly, the concept of “Public Interest Litigation” (PIL), which developed in the late 80s, was a vital judicial innovation that has helped further justice.
  • Nonetheless, it is vital to recognize the thin line between judicial activism (innovative outreach) and judicial adventurism.
  • Judicial adventurism would mean intruding into policy decisions of the government, and dictating legislative or executive action.

What are the other related issues?

  • There have been demands for multi-religious benches for matters related to religion and also separate boards for religious law related cases.
  • These demands are unfounded and there is considerable trust that our judges function independent of religious bias.
  • The possibility of being appointed as Governors after retirement could possibly influence judges during their tenure in office.
  • This is a genuine risk and it would be good if judges are kept out from such enticing appointments.
  • On the contrary, the appointment process for the “National Human Rights Commission” (NHRC) or Lokpal is a more inclusive.
  • Hence, judges can be considered for such appointments alone.

Road Safety In India And The Motor Vehicles Bill 2017

 

Relevancy

  • GS Paper-2, Government Policies

Why in news?

  • Motor Vehicles (Amendment) Bill (2o17) has been languishing in the Rajya Sabha since last year, and needs to be furthered for the greater good of the nation.
  • It seeks to better the quality of roads and improve safety standards.

Why we need to ensure road safety in India?

  • Potholes are a major cause for accidental deaths and between 2013 and 2016, official statistics says that 11,836 deaths due to it in India.
  • Madhya Pradesh, Uttar Pradesh, Tamil Nadu and Maharashtra have the dubious distinction for consistently causing potholes related accidents.
  • Significantly, pothole related deaths peak during monsoons and ironically.
  • While cases are to be booked against contractors (or officials) for poor roads, police reports often blame the victim for ‘negligence driving’.
  • The Indian Road Congress has prescribed over 100 sets of guidelines to ensure standardised road construction, maintenance and management.
  • The challenge lies in ensuring that these guidelines are implemented and no complying contractors and officials are brought to book.
  • The absence of a unified law on road construction, engineering and maintenance is making it hard to implement these guidelines.

What is the Motor Vehicles (amendment) Act about?

  • “Motor Vehicles Act” is the presently existing act for road safety.
  • This act has no provisions to ensure accountability of road authorities for defects in the engineering, design and maintenance of roads.
  • The Motor Vehicles (Amendment) Bill, 2017, which has been tabled in the parliament, has attempted to address this drawback.
  • It has provisions for rectify several systemic issues by providing a uniform driver licensing system, protecting children and vulnerable road users.
  • Rationalising penalties and creating a system of accountability in the construction of roads is another important aspect of the bill.
  • The bill envisions a monetary fine of up to 1 lakh on the authority responsible, for any road crash caused by defective road design/ maintenance.
  • While the fine is only a small amount, this is a step in the right direction.
  • Nonetheless, road contractors and engineers will still not be held criminally liable for causing deaths and injuries due to their sloppy work.

What are the problems that needs to be addressed?

  • Potholes are caused by the presence of heavy traffic and water on roads and improper drainage is found to have direct implications for roads.
  • Therefore, it becomes necessary to ensure the use of standardised methodology and good quality material when constructing roads.
  • There also needs to be regular maintenance and an effective system to ensure accountability in other aspects of town planning too.
  • Incorporating “Safe System Approach” in all aspects of road design, engineering and construction is another point to be considered.
  • This accounts for the possibility of human error and ensures that the surrounding environment and infrastructure are designed to save lives.
  • At a policy level, we need to create an enabling environment that weaves in different progressive aspects across all sectors that influence road quality.

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