25th December 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. An All India Judicial Service (AIJS) will help in further improving the state of judiciary in India. Comment.
- In its report, ‘Strategy for New India@75’, the NITI Aayog mooted the creation of an All India Judicial Service (AIJS) for making appointments to the lower judiciary through an all India judicial services examination conducted by the Union Public Service Commission (UPSC) in order to maintain “high standards” in the judiciary.
- Similar proposals were made by the Union Law Minister as a solution to the problems of vacancies in the lower judiciary and a lack of representation in the judiciary from marginalised communities.
- The creation of the AIJS and a centralised recruitment process will help the lower judicial services because the current federal structure, that vests the recruitment and appointment for the lower judiciary in the hands of State Governors, High Courts and State Public Service Commissions.
- Going by the latest figures published by the Supreme Court in its publication Court News (December 2017 and the last available figures), many States are doing a very efficient job when it comes to recruiting lower court judges. In Maharashtra, of the 2,280 sanctioned posts, only 64 were vacant. In West Bengal, of the 1,013 sanctioned posts, only 80 were vacant. Those are perfectly acceptable numbers. However, there are States such as Uttar Pradesh where the situation is shocking. Of the 3,204 sanctioned posts, 1,348 are vacant, i.e. 42% vacancies. So, more can be done to reach full potential.
- The centralisation of recruitment processes through the UPSC automatically leads to a more efficient recruitment process.
- The second argument in support of the AIJS is that its creation, along with provisions of reservations for the marginalised communities and women, will lead to a better represented lower judiciary. Dalit and tribal politicians are supporting the AIJS on these grounds.
- As originally enacted, Articles 233 and 234 of the Constitution vested all powers of recruitment and appointment with the State Public Service Commission and High Courts. During the Emergency, Parliament amended Article 312 of the Constitution to allow for the Rajya Sabha to pass a resolution, by two-thirds majority, in order to kick-start the process of creating an all India judicial service for the posts of district judge. Once the resolution is passed, Parliament can amend Articles 233 and 234 through a simple law (passed by a simple majority), which law will strip States of their appointment powers.
GS II: ELECTIONS
Q2. The orders by State Election Commissions of Maharashtra and Haryana implement NOTA in its full spirit. Comment.
- In People’s Union For Civil Liberties v. Union Of India (September 27, 2013), the Supreme Court had ruled that a None of the Above (NOTA) option “may be provided in EVMs” so that voters are able to exercise their “right not to vote while maintaining their right of secrecy”. On October 29 that year, the Election Commission of India (ECI) said that if a situation arose where the number of NOTA votes exceeded the number of votes polled by any of the candidates, the candidate with the highest number of votes would be declared winner. This, it said, was in accordance with Rule 64 of the Conduct of Elections Rules, 1961.
- This provision made the NOTA option almost redundant. While it ensured confidentiality for a voter who did not want to choose any of the candidates and yet wished to exercise her franchise, the provision clarified that a NOTA vote would not have any impact on the election result, which is what interests candidates, political parties, and voters.
- For democracy to survive, it is essential that the best available men should be chosen as people’s representatives.This can be best achieved through men of high moral and ethical values, who win the elections on a positive vote. Thus, in a vibrant democracy, the voter must be given an opportunity to choose NOTA
- Democracy is all about choice. This choice can be better expressed by giving the voters an opportunity to verbalize themselves unreservedly and by imposing least restrictions on their ability to make such a choice. By providing NOTA button in the EVMs, it will accelerate the effective political participation in the present state of democratic system and the
- The State Election Commission (SEC) of Maharashtra was the first to understand the spirit of the judgment. It issued a reasoned order on June 13 saying, “If it is noticed while counting, that NOTA has received highest number of valid votes, then the said election for that particular seat shall be countermanded and fresh elections shall be held for such post.” This was commendable, but it stopped short of giving NOTA the teeth that the court wanted. It meant that the same candidates could contest the new election, which meant that the result could be the same as earlier.
- It was not long before the final correction came forth. The SEC of Haryana, in an order dated November 22 2018, stated that if “all the contesting candidates individually receive lesser votes than… NOTA,” then not only would “none of the contesting candidates be declared as elected,” but “all such contesting candidates who secured less votes than NOTA shall not be eligible to re-file the nomination/contest the re-election.”
- The two SECs are within the ambit of the Constitution and various Supreme Court judgments to issue these orders for various reasons: they have powers identical to the ECI for elections that take place in their jurisdictions; they have plenary powers to issue directions in areas related to the conduct of elections where there is no specific legislation, till such time as Parliament or the State Assembly enacts such legislation; and there is no specific legislation pertaining to NOTA.
- With two SECs showing the way, the remaining SECs and the ECI should follow suit so that political parties are compelled to nominate sound candidates, and are forced to accept the will of the people, as desired by the highest court in the land.