31st JULY 2018
Answer questions in NOT MORE than 200 words each. Content of the answer is more important than its length.
Links are provided for reference. You can also use the Internet fruitfully to further enhance and strengthen your answers.
GS II: JUDICIARY
Q1. Do you agree that while adjudicating on cases related to cultural issues the Supreme Court must consider the transformative nature of the Constitution? Support your answer wih suitable arguments.
- When the court is called upon to settle a battle in the culture wars, the task is fraught with complexity. This is becausethese conflicts often represent deep, long-standing and irreconcilable divisions in society, touching issues of personal belief and conviction. Constitutional documents often consciously refrain from directly addressing them: for example, the framers of the Constitution deliberately placed the provision for a uniform civil code in the unenforceable “Directive Principles” chapter, thinking that it was too divisive to be made a fundamental right.
- There is a philosophy of constitutional adjudication, that the Constitution is a transformative document, whose goal is to erase and remedy long-standing legacies of injustice. A particular feature of these injustices is their deep-rooted, social and institutional character. In the Indian context, the most obvious example is that of caste. The pervasive and corrosive influence of caste-discrimination in our society not only prompted the inclusion of a specific article in the Constitution abolishing untouchability (Article 17), but over and above that, gave rise to a constitutional vision of equality that specifically included affirmative action.
- Consequently, where the narrow approach sees a culture war triggered by the disruption of a carefully-maintained accommodation of cultural difference, the transformative approach sees a long-suppressed protest against a system of hierarchy and subordination that has found its utterance in the language of constitutional rights. For the transformative approach, it would be a betrayal of the Constitution’s transformative purpose if the court were to retreat in the face of strident claims to cultural integrity, and duck deciding the “real” questions before it.
- In the 377 hearings, for example, the transformative approach was articulated by counsel representing mental health professionals, who argued that decades of social exclusion and ostracism of the LGBT community could not be remedied simply by “decriminalisation“. Rather, it would require a declaration by the court that no institution – public or private – would henceforth be permitted to discriminate on grounds of sexual orientation, or deny any person their civil rights. This would accomplish two crucial things: first, it would be a small step towards removing the structural and institutional barriers that continued to stand between the LGBT community and equal moral membership in the community; and second, it would serve as a public acknowledgement of a wrong that society had been complicit in, and which society was not determined to remedy. Similarly, in the Sabarimala case, counsel have urged the court to hold that religion cannot be invoked to shield a discriminatory practice from constitutional scrutiny; and that, at the end of the day, constitutional morality must prevail over precepts that are rooted in any particular religion.
GS II: GOVERNANCE
Q2. The recent Prevention of Corruption (Amendment) Bill has certain provisions which have weakened the bill. Comment.
- It is unfortunate that India has not been able to shed the image of a highly corrupt nation even after seven decades of Independence. The average Indian believes that he cannot get even the basic services to which he is entitled under the law without greasing the palms of one or more officials at the ground level. In the recent past, things have undoubtedly changed for the better – even if only marginally – when people try to obtain a passport, a driving licence, or a birth/death certificate. This is thanks to digitisation and the sensible pruning of prescribed procedures. The Centre and a few States deserve praise for taking some initiatives to reduce corruption. But this is small comfort. A lot more needs to be done before we can relax the fight against corruption among public servants.
- It is against this backdrop that Parliament has passed the Prevention of Corruption (Amendment) Bill. At least one of the amendments, which mandates prior government approval of the Central or State government to initiate investigation into corruption charges, is bound to evoke negative reactions from large sections of the public.
- One of the welcome amendments widens the definition of criminal misconduct to include the bribe giver too. In the past, the bribe giver had enjoyed immunity and that helped perpetuate corruption. There is, of course, the proviso that a person who had been coerced into giving a bribe cannot be proceeded against. It is incumbent on his part to report such coercion to the authorities within a week of the incident.
- The amendments include a stipulation for a day-to-day trial and completion of court proceedings within two years. Where this is not possible, the judge concerned will have to record reasons for prolongation of the trial and give himself an initial extension of six months. Given the overburdening of the judiciary, even fast-track courts may be unable to stick to this deadline.
- Protection to government servants from arbitrary and unilateral action by anti-corruption agencies without prior permission from the government was earlier available only to the higher echelons, from the rank of Joint Secretary and above, beforethe Supreme Court struck down the so-called ‘Single Directive’. The latest tweak extends this protection to all public servants.
- This is welcome but ambitious. The new directive that requires prior approval at the preliminary inquiry stage as well as before the registration of a regular case carries many imponderables, especially the risks involved in delegating authority to order commencement of investigations under the Act.
- We cannot fault anti-corruption agencies if they believe that this change in procedure would embolden dishonest government personnel. But this is debatable. Only the speed and honesty of administrative ministries while acting on requests for permission from the Central Bureau of Investigation (CBI), in particular, for initiating action against an erring official would give us an idea of the practical difficulties involved.
- Another major change is the deletion of the whole of clause (d) of sub-section (1) of Section 13, which defines ‘criminal misconduct’ as the acquisition of a ‘valuable thing’ or ‘pecuniary advantage’ in a dishonest manner. The deleted clause was the sole effective weapon against a misbehaving senior official. This deletion (without substituting it with any other clause) is disappointing because corruption in high places is sophisticated and takes place in a highly clandestine manner.
- A few experts believe that there is also a certain dilution of the definition of ‘known sources of income’ through the incorporation of the statement that this would include income received from any ‘lawful source’, an expression that has been left undefined. This is critical because of the misconception that as long as tax has been paid on income received from an undisclosed and illegitimate source, such income becomes lawful.
- One reasonable apprehension is that where a public servant causes performance of a public duty which is improper and against prescribed rules and procedures, and there is no proof of a transaction of bribery, he will go scot free. What if such improper performance is in lieu of future bribes or post-retirement jobs? There is a misgiving here that the latest amendments to Section 13(1) could be in conflict with the spirit of Article 19 of the United Nations Convention Against Corruption.
- It must be remembered that in handling misdemeanours of government officials, we are prone to committing excesses and ignoring human rights considerations. This is deleterious to the morale of public servants. The amendments are meant to balance overzealousness and apathy. As in the case of a common crime, we must consider whether conferring greater autonomy on investigating outfits, shortening trial procedures through mechanisms such as fast-track courts, and making penalties more stringent will introduce the much-needed deterrence to prospective offenders. It is an accepted criminal justice axiom that deterrence works only up to an extent; beyond the threshold, the incidence of crime only escalates. This is why there is support to the balanced stand that giving arbitrary and excessive authority to enforcement agencies could only lead to miscarriage of justice, without bringing about a corresponding reduction in criminal misconduct.
GS II: JUDICIARY
Q3. Increasing the age of retirement of judges in India will be helpful in many ways especially in dealing with the pendency of cases. Comment.
- The issue of increasing the age of retirement for judges featured in the Venkatachaliah Report (Report of the National Commission to review the working of the Constitution) as early as 2002. A half-hearted attempt was made in 2010 to bring in the Constitution (114th Amendment) Bill to raise the retirement age of High Court judges to 65 from 62 years. The amendment never came through. The idea of increasing the age of retirement, which has gained traction in recent times, has now been brought into sharp focus by Justice Kurian Joseph of the Supreme Court.
- A retirement age of around 70 for judges is commonplace in most Western liberal democracies. Some of them even opt for tenures for life. In the Supreme Court of the United States, and in constitutional courts in Austria and Greece, judges are appointed for life. In Belgium, Denmark, Ireland, the Netherlands, Norway and Australia, the retirement age for judges is 70 years. Judges in Canada and Germany retire at 75 and 68, respectively.
- For good reasons, the time has come for India to consider increasing the retirement age for judges of the High Courts and the Supreme Court to 70. This will have significant benefits. Senior serving judges will bring with them years of experience.
- It is also necessary to increase the number of judges in the pool to enable the judiciary to deal with the enormous pendency of cases. The Chief Justice of India, Dipak Misra, recently expressed concern over the backlog touching 3.3 crore cases. According to National Judicial Data Grid data, more than 2.84 crore cases are pending in the subordinate courts, 43 lakh cases are pending before the High Courts, and 57,987 cases are pending before the Supreme Court. The fact that judges in India are retiring at 62 and 65 years is not helping alleviate this problem either. We are losing judges who are trained by time and experience well before their prime. If legislations provide for retired High Court and Supreme Court judges to man tribunals till the age of 70, there is no reason why these judges should be retired so early.
- One aspect which has not been factored in is that as the Indian economy grows, the ratio of litigation to population will increase exponentially. Advanced economies such as Australia, Canada, France, the U.S., the U.K., and Japan have much higher litigation-to- population ratios.
- The issue of increasing the retirement age of judges thus requires serious and immediate consideration and must necessarily move beyond partisan politics. The time has come to deal with the lakhs of cases pending as arrears before the 24 High Courts in India for periods as long as 10-20 years. Pendency does not only debilitate the justice redress system; it also makes the rule of law a distant dream. More and more litigants now enter the justice redress system without the faintest hope of seeing closure in their lifetimes.
- Increasing the age of retirement for Supreme Court and High Court judges has significant advantages. One, it will ensure the continued presence of a strong talent pool of experienced judges. Two, new judges can be appointed without displacing existing judges. Three, it will address the problem of mounting arrears. Four, it will be a buffer against impending litigation explosion. Five, it will render post-retirement assignments unattractive and, as a consequence, strengthen the rule of law and the independence of the judiciary, both of which are crucial to sustain democracy.