Editorials, GS-2, Uncategorized

Civil Service Reforms: Few ‘Innovations’ By NITI Aayog, If One Can Call Them So

As civil service reforms go, the Niti Aayog’s Three Year Action Agenda: 2017-18 to 2019-2020, released recently, contains little that is new or innovative. The idea that policy making is a specialized activity and needs lateral entrant of specialists on fixed-term contracts to bring in competition into established career bureaucracy has been talked about for years and is a tautology today. The same goes for making the goals and progress available publicly to incentivize delivery and measure performance objectively, with high performance rewarded and poor performance reprimanded. Likewise, E-governance is no new beer, as is outsourcing of services; they’re old wine in new bottles.

The only innovation, if one can call it so, seems the plea for longer tenure of Secretaries. It creates two important inefficiencies. One, with a time horizon shorter than two years, the officer is hesitant to take any major initiatives. Two, and more importantly, to the extent that any misstep may become the cause for charges of favouritism or corruption post retirement, the officer hesitates to take decisions on any major project. This causes an inordinate amount of delay in decision-making. The inefficiencies are two-fold: (a) hesitation to take any major initiative; and (b) fear of misstep to take decisions on any major project.

It’s bemusing how these two inefficiencies can be overcome with longer tenures. For one, empirically, officers with tenures of more than 2 and going up to 3/4 years haven’t fared any better than the ones with shorter tenures. Lack of foresight and initiative aside, to be fair, they have been moved around to more than 2-3 departments/ministries, thereby not granting them the time needed to settle down and make salutary contributions. But it’s not fair to blame the system entirely for there are departments/ministries that are low/high in the mandarin’s perception/weight indices and with the long window available to them, there is the human urge for upward pecking mobility. Lobbying, jostling, networking (see the work-hours wasted here!), nepotism, and favouring the powers-that-be through subtle sleight of hand are rife. One has with growing frustration seen how people with no little knowledge/experience, but with the right “connect” and “networking”, go up and up the proverbial totem pole only because the new post figures high in the perception-cum-weighty index and is a better springboard for post-retirement sinecures. This is the nub.

Like statistics, the Niti Aayog’s eggheads conceal more than what they reveal; its platitudinous recipe is less relevant than what it shrouds: post-retirement sinecures. The heart of the problem is that no bureaucrat (apart from one-odd outliers) ever wants to retire. In a feudal mindset, retirement sucks: identity-loss after a lifetime of humongous ego-trips and condescension, vanishing into the woodwork is the hardest ask; retirement is sudden cold-blooded cremation. Hence exists the the intense urge to stay on somehow. It is also the reason why senior officers close to R-Days take calculated and “desperate” gambles to “oblige” political masters at the cost of their much vaunted “professional ethics”. In effect, the two “inefficiencies” stay. One wishes the Niti Aayog had provided answer to this endemic nettlesome syndrome that defeats every sanguine public motivation.

One wonders how practical and efficacious Niti Aayog’s suggestion for specialization and induction of lateral recruits for a fixed tenure is. No questions are asked on the need for specialists and domain experts in public policy, but the issue is: Given the bureaucratic construct, will this behemoth of bureaucracy easily admit and acknowledge the role and contribution of the newbie, especially when their own unimaginative low-performance and lassitude hitherto unquestioned will (inevitably) be shown in poor light in comparison. Though a fixed tenure might help shielding the laterals from being junked midway, will frustration not creep into their day-to-day efficiency, thereby nullifying the cross-pollination and cross-fertilization of their ideas? Will they be accorded their due for the contribution made to improve public policy and the same acted upon without bureaucratic machinations and legerdemain? Or will the ear of political masters earned by mandarins negate any such noble impulses making it a zero-sum game?Public policy issues are roiled – apart from the much-maligned and putative red-tape-worm – in time-worn vested interest, personal advancement, colonial baggage and mindset. Holistically, the answer is in tightening governance’s value system. Financial malfeasance is bad, but worse is intellectual dishonesty, subtly crafted under the guise of amnesic mnemonics, poor data analysis and obfuscating interstitial interpretation kept under wraps in grimy official records. Financial misgivings no matter how convoluted they are, still palpate; intellectual dishonesty covertly hemorrhages.

For a feudal society with a bespoke traditional mindset of grand reparative gestures to espouse and promote the biradiri cause and where the state is seen as omnipotent and where few realize power is but abuse of power, it is imperative to have an arm’s-length system.

But is that enough? Maybe not. There could be a need to actualize implication of Robert Klitgaard’s formula on dishonesty: Corruption = Monopoly + Discretion – Accountability (C=M+D-A). Even that too may not be enough. Proactive disclosure provided under Section 4 of the RTI Act 2005 will need to be sculpted into the e-governance platform. In this our Indian Gilded Age, the atmosphere is agog with ideas and impulses despite the consistent stonewalling of the established order. Citizen rants against diminishing public value are getting louder by the day.

True, in today’s battle of dialectics opacity wins, but then for how long? Over time and amid battling dialectics, society’s voice will inexorably tilt in transparency’s favour. The USA too went through the Gilded Age and the trauma of the robber barons. They came out of it triumphant through laws crafted in the teeth of opposition. For us the battle may be long and hard too but it’s time we had better see the future. I wish the Niti Aayog had the vision to sense a Eureka moment here and suggested measures to move in that direction.

GS-2, International Relations, Uncategorized

All about Vienna Conventions

Vienna Convention can mean any of a number of treaties signed in Vienna. Notable are:

What is Vienna Convention?

Inked in 1961,Vienna Convention on Diplomatic Relations (VCDR) is an international treaty accepted by 189 states. The VCDR refers to a framework for diplomatic relations between various independent countries. It specifies the privileges of a diplomatic mission that enable diplomats to perform their function without fear.

As per VCDR, certain individuals get diplomatic immunity depending on their rank and the amount of immunity they need without any legal harassment from the host nation.

How Pakistan violated Vienna Convention in Kulbhushan Jadhav’s case?

  • Without informing India about Kulbhushan Jadhav’s arrest: Pakistan clearly violated Vienna Convention by not informing of Jadhav’s arrest. Jadhav, a former Indian naval officer, had been sentenced to death last month by a Pakistani military court on grounds of spying. He was arrested last year but India was unaware about his arrest. On May 8, India contested the move and dragged Pakistan to the ICJ for refusing consular access to Jadhav and for violating the Vienna Convention on consular relations.
  • India was denied consular access 16 times by Pakistan: India is contending that Pakistan’s announcement of the death sentence was in contravention of Vienna convention on consular relations as India was denied consular access 16 times by Pakistan.

Vienna Convention on Consular Relations-

The Vienna Convention on Consular Relations of 1963 is an international treaty that defines a framework for consular relations between independent states. A consul normally operates out of an embassy in another country, and performs two functions:
(1) protecting in the host country the interests of their countrymen, and
(2) furthering the commercial and economic relations between the two states.

While a consul is not a diplomat, they work out of the same premises, and under this treaty they are afforded most of the same privileges, including a variation of diplomatic immunity called consular immunity.

GS-2, International Relations, Uncategorized

First cargo truck under BBIN pact reaches Delhi

First cargo truck under BBIN pact reaches Delhi

The first cargo truck under the Bangladesh, Bhutan, India and Nepal (BBIN) Motor Vehicle Agreement for cross border movement reached Delhi recently.

Key facts:

  • The cargo truck was dispatched from Dhaka on August 27 as part of a trial run and arrived at the Inland Customs Depot (ICD).
  • According to the Ministry for Road Transport and Highways (MoRTH), the trial was organised to develop the protocols for implementing the agreement.
  • In India the truck travelled for more than 1,850 km through the states of West Bengal, Jharkhand, Bihar, Uttar Pradesh, Haryana and Delhi to reach the customs depot at Patparganj.

bbin

http://www.insightsonindia.com/wp-content/uploads/2016/09/BBIN.jpg

 

Significance of this test run:

The trial run has demonstrated that time and cost can be saved through facilitation of seamless transport through the sub-region. Cargo trucks often had to be off-loaded at the border and also go through customs clearance. This led to delays and often also caused damage to the goods. The steps being taken to facilitate seamless movement of cargo vehicles will give a major boost to trade and business in the sub-region.

Background:

The BBIN agreement was signed on June 15 last year in Thimphu, Bhutan to facilitate cross border movement of both passengers and cargo vehicles. Protocols to implement the agreement are being negotiated by the four countries for passengers and cargo vehicles separately.

Big Picture, GS-2, International Relations, Uncategorized

Indo-US Strategic Ties: Where Is It Heading?

The relationship between India and USA which has been on an upward curve for some time is further seeing an upward trend. The crucial LEMOA (Logistics Exchange Memorandum of Agreement) recently signed by both the countries is a significant step towards strategic and defence ties.

What does the Agreement mean?

  1. It provides for automatic approvals process in place to militaries of both the nations to share each other’s bases for various operations. It establishes basic terms, conditions, and procedures for reciprocal provision of logistic support, supplies, and services.
  2. It covers logistics supplies during disaster relief efforts, joint exercises, port visits, joint training and humanitarian assistance along with other uses to be discussed on a case by case basis.
  3. The agreement does not create any obligation on either party to carry out any joint activity compulsorily and also does not provide for any basing arrangements.

Analysis:

The agreement is a strategic binding between India and the US. This is the final lap for Obama administration not only with respect to India but also with other countries. This is the time when Obama’s legacy is being finally summed up. From USA’s point of view this agreement is a tremendous success which was held back for several years.

By signing this agreement India does not agree to provide basing rights to USA or being a military ally to it. As per the agreement, it only facilitates the Indian military to fulfill its basic logistic requirements such as food, water, transportation, petroleum, oils, lubricants, clothing, communication services, medical services, storage services, training services, spare parts and components, repair and maintenance services, calibration services and vice versa. Since America is already a strong military power, at present India seems to have an edge as this agreement gives an enabling framework and will enhance its sustainability in different areas of humanitarian work.

This agreement has taken more than 14 years to be signed. America has put India as a defence partner and not an ally. It wants India to be a rising power and this is in interest of both the countries. In 2003 during Iraq war, India had provided logistic facilities to the US ships for refueling. Ships were escorted through the Malacca Strait. The agreement is more than logistics supplies and has to be looked in terms of trade, defence and technological initiative. For example: DTTI (Defence Technology and Trade Initiative) aims to strengthen India US cooperative research, co-production, and co-development of capabilities which are required for modernization of our military forces and for this US has set up an Arms Act as well specifically for India. An India Rapid Reaction Cell has been set up in Pentagon as well to speed up defence ties.

The key point is access to bases today and if India gets access to the US bases in South China Sea, South East Asia or Asia Pacific, then it would be a major plus point. India holds more joint military exercises with US than any other nation in the world. These exercises will become much easier to conduct.

Geostrategic Importance:

This is a kind of litmus test from America’s point of view. India has taken a leap of faith and has come much closer to US in strategic and geopolitical terms. While having its own strategic autonomy, India has identified itself with US strategies as well in a harmonious manner. However, this is a foundation agreement and there are many other agreements which are major ones yet to be signed. China may or may not be much concerned about this agreement because it already has it owns bases in Djibouti and access to Pakistani ports. So, China can take care of its requirements. If such agreements are signed by India, it cannot stop Sri Lanka in future to sign any pact with Chinese. The aim is basically to have a containment strategy against China. Russia has got access to our region through Iranian ports very recently. So, India has taken correct steps in its interest and there is no alternative to it.

Conclusion:

The non alignment era has ended now and this is the time for multi alignment. India has maintained good relations with Japan, US, China, Russia and other countries while talking of strategic autonomy. Indo-US relationship tends to work in bits and pieces as the role of US in South China Sea is still not clear and both countries have different views on Afghanistan. Now in the pretext of current events this diplomacy is something that needs to be maintained in future as well.

Big issues, GS-2, Uncategorized

Child Labour (Prohibition and Regulation) Amendment Act

Constitutional Provisions Relating to Child Labour:

  • Article 24 prohibits the employment of children below the age of 14 years in hazardous industries. Allows their employment in non hazardous industries . Subsequently , government passed Child Labour (Prohibition and Regulation) Act, 1986 which prohibited employment in 14 industries and regulated employment condition in the rest
  • Article 39(e) directs the state to ensure that health of workers be protected and children not to be exploited

Provisions of the Amended Bill

  • The Child Labour (Prohibition and Regulation) Amendment Bill, 2012 was introduced in the Rajya Sabha on December 4, 2012 by the Minister of Labour and Employment, Mallikarjun Kharge.
  • The Bill seeks to amend the Child Labour (Prohibition and Regulation) Act, 1986, which prohibits the engagement of children in certain types of occupations and regulates the condition of work of children in other occupations.
  • The earlier Act prohibits employment of children below 14 years in certain occupations such as automobile workshops, bidi-making, carpet weaving, handloom and power loom industry, mines and domestic work.  In light of the Right of Children to Free and Compulsory Education Act, 2009, the Bill proposes a blanket ban on employment of children below 14 years in all occupations except in “own account enterprises” i.e. family business and in entertainment industry provided education of child does not get hampered
  • The Bill adds a new category of persons called “adolescent”.  An adolescent means a person between 14 and 18 years of age.  The amended Act prohibits employment of adolescents in hazardous occupations as specified (mines, inflammable substance and hazardous processes).
  • The central government may add or omit any hazardous occupation from the list included in the Bill
  • The Bill enhances the punishment for employing any child in an occupation.  It also includes penalty for employing an adolescent in a hazardous occupation. The punishment for those employers, employing children for the first time, the fine has been increased from 20000 to 50000 Rs and 6months to 2 years imprisonment. For repeat offenders the offence is cognizable (i.e. arrest can be made without warrant) and proposes a punishment of 1-3 year
  • The Bill proposes relaxed penal provisions for parents. In case of parents being repeat offenders, it proposes a fine of 10000 rupees.
  • The government may confer powers on a District Magistrate to ensure that the provisions of the law are properly carried out.
  • The Bill empowers the government to make periodic inspection of places at which employment of children and adolescents are prohibited.
  • It also sets up a Child and Adolescent Labour Rehabilitation Fund to be set up under the Act for rehabilitation of children and adolescent employed

Data on Child Labour

  • There are 33 million child labourers in India, according to UNICEF. As per the 2011 census, 80 per cent of them are Dalits, 20 per cent are from the Backward Classes
  • According to Global Slavery Index, India has the 4th largest estimated prevalence of modern slavery in proportion to its population. 1.4% of India’s population live in condition of modern slavery including sex work, domestic work, child labour, manual labour or even forced marriages
  • According to SECC 2011, 4 million children in working children in age group of 5-14 years

child labour in india amendment act

Criticism of the Amended Act:

  • Firstly, it has slashed the list of hazardous occupations for children from 83 to include just mining, explosives, and occupations mentioned in the Factory Act. This means that work in chemical mixing units, cotton farms, battery recycling units, and brick kilns, among others, have been allowed. Further, even the ones listed as hazardous can be removed, according to Section 4 — not by Parliament but by government authorities at their own discretion.
  • Secondly, section 3 in Clause 5 allows child labour in “family or family enterprises” or allows the child to be “an artist in an audio-visual entertainment industry”. Since most of India’s child labour is caste-based work, with poor families trapped in intergenerational debt bondage, this refers to most of the country’s child labourers. The clause is also dangerous as it does not define the hours of work, it simply states that children may work after school hours or during vacations.
  • They also contravene the International Labour Organisation’s (ILO) Minimum Age Convention and UNICEF’s Convention on the Rights of the Child, to which India is a signatory. According to UNICEF, a child is involved in child labour if he or she is between 5 and 11 years, does at least one hour of economic activity, or at least 28 hours of domestic work in a week.
  • One-fifth of the child labourers rescued worked with their families. If the new law was in place they wouldn’t be rescued.
  • Regulation is going to be a big challenge, as it will be difficult to determine whether a particular family is running an enterprise, or whether some faceless owner has employed a single family to circumvent the law. The fallout will be a higher dropout rate. They may go to school for some years, concurrently work with their families, and graduate to being full-time adolescent workers, without completing elementary education
  • According to UN Convention on Rights of Child (CRC) every child has a right to be heard. In the International Working Group on Child Labour whi9ch came up with Kundapura declaration stated that children be consulted, their products recognized, work be regulated and made safe, education, health and security be provided. Unfortunately, this has not been the case in the current legislation. The Act follows the least resistance path which will open a pandora’s box

 

GS-2, Uncategorized

Pradhan Mantri Swasthya Suraksha Yojana (PMSSY)

Introduction

Prime minister laid the foundation stone for All India Institute of Medical Sciences (AIIMS) inGorakhpur in eastern Uttar Pradesh. The state where medical care is very poor. AIIMS will provide tertiary care for the people. Gorakhpur is a significant area, but always in news for one bad reason that is the Japanese encephalitis which takes many lives.

Pradhan Mantri Swasthya Suraksha Yojana (PMSSY)

  • The Pradhan Mantri Swasthya Suraksha Yojana (PMSSY) was announced in 2003 with objectives of correctingregional imbalances in the availability of affordable/ reliable tertiary healthcare services and also to augment facilities for quality medical education in the country.
  • Pradhan Mantri Swasthya Suraksha Yojana was approved in March 2006. The first phase in the PMSSY has two components – setting up of six institutions in the line of AIIMS; and up gradation of 13 existing Government medical college institutions.

Importance of AIIMS

  • Health care is a very important dimension of Good Governance. Quality health care has been lacking in Gorakhpur region. Having AIIMS in those area is to take the AIIMS level of quality to those places where previously people from all parts of the country use to come to AIIMS in Delhi.
  • AIIMS was considered the best in terms of what government can provide in terms of public health care. Todaymedical sciences have made lot of improvements and advancements. When it comes to availability to the people, it is the urban people who benefit invariably.
  • So the new project is very important in terms of providing high quality medical facilities to those places where there is no medical attention.
  • We have schemes for Ambulance services, primary health care etc. Having AIIMS in Gorakhpur is important for access to specialist services.
  • Sometimes there are complicated health cases. Providing specialist care along with basic health care facilities is very important. For specialists and diagnostics, people are forced to come to cities for treatment.
  • It is very difficult for poor villagers to come to city and stay for the purpose of availing medical treatment. So having a super speciality hospital with areas of excellence will benefit the people of Gorakhpur.
  • The basic idea of setting up AIIMS at various places was to provide quality and affordable care. Along with this quality medical education is also created.

State of Health care in India

  • In India 10 lakh people die every year due to lack of medical care facilities and 70 crore have no access to medical specialists. 80% specialists are in urban areas.
  • The world average is 3.96 hospitals per 1000 population. In India it is 0.7 hospital beds. 70% of state’s budget goes in paying salaries and wages. This is very dismal situation.
  • Life expectancy has gone up to 66 years as compared to 32 years when India got independence. Health care is going to be more significant aspect. In a country where social welfare and social development indicesare yet to grow, the new project shows some kind of commitment by the government for the welfare of the people.
  • The public funding for health care is 22%, while 78% is going to private hospitals. The share of the richest 20% of the population gets 31% of the total public subsidies. The real intended portion of benefits is not reaching the lower end of the ladder of population. This is a very grim picture.
  • The available medical facilities are not reaching the people who badly need them. In government hospitals there is apathy in terms of attending to patients, availability of facilities and availability of modern technology.
  • India has 0.7 doctors per 1000 population. In the present scenario even 7 doctors per 1000 population may not be sufficient, by looking at the lifestyle diseases (Non Communicable Diseases). The diseases we normally thought would affect only a particular section of the population like obesity is prevalent among low income people. The diseases are striking at every strata of the society. How people cope up with it is a big question.
  • According to Lancent report of 2015, in India 25,300 public health centres have no doctors, 80% of the community health centres do not have a specialist/ surgeon, 76% don’t have access to gynaecologist and 82% don’t have a paediatrician. At one hand we are expanding medical services, while the real staff to treat or diagnose and support staff, we have a long way to go.

Need of the Hour

  • The private health care can fill up that space. In recent times there are issues about quality health care provided by private sector. So government cannot leave healthcare completely to private sector.
  • Private healthcare is equally important because government alone cannot provide health services to the citizens. The government must supplement the services available by creating the centres of excellence.
  • 80% of the medical doctors work in urban centres. Government has tried to correct it by making rural service as compulsory. But things haven’t improved. The other side is doctors find it difficult to stay or have a hospitable living in area where they can move and stay with their family. The facilities for the doctors to stay in rural areas have to be created by the government.
  • In terms of developed countries, the quality medical facility we get in any part of that country is equal to what they get in the bigger cities. India should also aim for the similar system where the super speciality services are available at least at the district level.
  • India has 0.7 doctors per 1000 population, china has 1.5 and Pakistan has 0.8. Recently health minister said India need 7.5 lakh doctors where as the intake of medical colleges are 50,000 students. There is a huge gap in terms of availability of doctors and the need to provide quality medical care. This is to be addressed.

Conclusion

We need to have quality medical facilities at all places. They have to be at affordable prices. Only the government can make the high quality medical care affordable to the people.

38,000 to 45,000 doctors pass out every year. But in terms of post MBBS super specialisation there are not more than 17,000 seats. There is a need to fill this gap. The Medical Council of India and the Government of India have been looking at the issue. The foundation stone of AIIMS at Gorakhpur is a step in the right direction.

Big issues, GS-2, Indian Polity, Public Admin 2, Uncategorized

Prime Minister’s Address on Citizen Engagement portal MyGov.in

This is a first of its kind initiative, where Prime Minister interacted with citizens on governance and delivery related issue. This was modeled on Town hall kind of system, which we see abroad. Prime Minister also said “Bad politics loses to good governance“. This was also the celebration of 2 years of MyGov.in digital platform.

Prime Minister is making conscious effort to reach out to people and involve people in governance. Making use ofICT platforms and applications like emails, SMS, twitter etc.

Prime Minister wants to make India a Participatory Democracy by involving people in policy matters. Where people can share their opinion, make ordinary people reach out to Prime Minister and suggest ideas and opinions, so that they can help in governance. Even in Mann ki baat programme people are sharing their opinions with the Prime Minister.

But still it takes a long time for India to be an example of Participatory Democracy, as we still remain as aRepresentative Democracy.

Highlights of Prime Minister’s address.

  • Prime Ministers vision on Rural Development, culture, economy, and public grievance redressal system which should be very strong.
  • He emphasized on the government delivery system, how the government works, how at every stage accountability should be fixed, and how the policy initiatives taken by the government should reach out to the people meant for.
  • Prime Minister indicated Time bound Redressal of people’s problems.
  • Farmers should adopt alternative system of resource generation. Farmers should be trained in animal husbandry, fishery, e-mandi, use of seeds, fertilizers, and pesticides.
  • Laid stress on water conservation or water harvesting. Making available for the water to be channelized in water bodies in order to sustain our agriculture, life of animals etc. State government and district administration should respond to water conservation
  • Governance is a complex process for a vast country like India. It remains a challenge and Prime Minister admitted it. Last mile delivery is still a challenge.
  • Maximum governance and minimum government has been the motto of this government.

Issue of Accountability

  • Accountability should be held to the person, from whom we are seeking at, instead of pointing it on somebody else.
  • Prime Minister cannot be held responsible if state government is not working well. Similarly a state government cannot be held responsible if a municipal commissioner is not working well.
  • A mechanism of accountability should be ensured. This is a lacking feature of Indian Democratic system ever since its inception.
  • Accountability has been a week factor. What is missing is, incase people are unhappy with any component of governance, the right to complain, and the right to seek change.
  • If the state government is not working to the best satisfaction of the people, there is no mechanism for Right to recall that has been provided in our system.
  • If an MLA or MP is not performing his duty as an elected representative, there is no system of right to recall. So that people can seek replacement of that particular representative.

Role of Bureaucracy

  • This is a standard set by Prime Minister, for others to follow like state governments or local bodies.
  • The message would reach the bureaucracy in the best possible way. The system in India has the responsibility on bureaucracy for delivering what is decided at the political level. Bureaucrats are the tools of delivery mechanism.
  • The very weak point that has been there for a long time in our system is that the “Delivery mechanism has been the weakest” especially in the field of health, education, public distribution, etc.
  • If bureaucracy takes note of what Prime Minister said, then surely it will have an impact on the Delivery system and better mechanism will come in place.

Conclusion

Prime Minister launched PMO App, which is towards transparent governance. People can use the app for grievance redressal at the PMO level. Messages will go down the line of PMO level for effective grievance redressal.

Through Digital India, government is trying to reach out to people and making the government services accessible to all citizens. People’s awareness is heightened through these instruments of governance. Implementation of all the assurances made by the Prime Minister, should deliver good results.

Big issues, GS-2, Indian Polity, Uncategorized

Surrogacy Bill

Here’s what you need to know about the draft bill on surrogacy which was recently cleared by the Union Cabinet.
GS-2, Uncategorized

Centre notifies Good Samaritan SOPs

The Centre has issued a notification ensuring that the affidavit of “Good Samaritan”, a person who voluntarily declares himself to be an eyewitness, shall be treated by the investigating officer as a final statement.

Background:

The notification is in response to Supreme Court directions in an October 2014 case of SaveLIFE Foundation asking the Centre to issue directions to save Good Samaritans until Parliament frames a law.

The court had directed the government to frame Standard Operating Procedures (SOPs) for the examination of a Good Samaritan. In March, the court approved the guidelines and the SOPs issued by the government with certain modifications.

Details:

  • According to the notification, the affidavit of Good Samaritan, if filed, shall be treated as a complete statement by the police official while conducting the investigation. In case, the statement is to be recorded, the complete statement shall be recorded in a single examination.
  • The crux of the guidelines is that no bystander rushing to the rescue of an accident victim should be subject to civil or criminal liability and/or be forced to be a witness.
  • Also, any disclosure of personal information or offer to be a witness, in the event of the Good Samaritan also being an eyewitness to an accident, ought to be voluntary. Further, the examination of such a volunteer as a witness shall be done only on a single occasion and without harassment or intimidation.

Centre, in April 2016, had issued notification for protection of Good Samaritans. Guidelines include:

  • Assuring Good Samaritans anonymity and protecting them from any civil or criminal liability for taking the victim to the nearest hospital.
  • They shall be treated respectfully and without discrimination on the grounds of gender, religion, nationality, caste or any other.
  • Complete anonymity in case the Good Samaritan does not want to reveal his name or details.
  • Use of video-conferencing in case of any further interaction with him by the authorities and provision for the police to examine him at his residence or office or any place of his convenience.
Big issues, GS-2, Uncategorized

Judiciary Vs Executive – Judicial Appointments

The justice system is caught in a tussle between the committee of Supreme Court justices and the government over who has the final say on appointing judges. India’s 24 high courts should have 1091 judges. However, as many as 470 positions are vacant. Many are not happy with the present collegium system. The two decade old system of a collegium is an Indian innovation created in the name of judicial independence. However, according to some critics, it has produced an opaque legal justice system.

Quick look at collegium system and its history:

The Constitution does not envisage a collegium of judges to select judges. It was virtually proposed by the lawyer community and the public who were distinctly uncomfortable with the intrusions into the independence of the judiciary in the 1970s and 1980s. When the Supreme Court devised collegium system, it was widely welcomed.

However, public and lawyer community were unhappy with this system too. It was proved, in some cases, that even judges also can be men of straw. The lawyers and the public realised that like any normal human being, several of the members of the collegium did not rise above their religion, caste, gender, language, family, friends and other affinities.

Arguments against the collegium system:

  • It is seen as a closed-door affair without a formal and transparent system. Judges, hopeful of going higher, have to please the members of the collegium.
  • This system overlooks several talented junior judges and advocates.
  • Sometimes, collegium gets stymied, when old rivalries between its members see each other’s favourites getting vetoed.
  • Sometimes collegium meetings become examples of bargaining within the collective, and consensus emerging from a division of the spoils.

What does the Constitution actually prescribe?

Article 124 deals with the appointment of Supreme Court judges. It says the appointment should be made by the President after consultation with such judges of the High Courts and the Supreme Court as the President may deem necessary. The CJI is to be consulted in all appointments, except his or her own.

Article 217 deals with the appointment of High Court judges. It says a judge should be appointed by the President after consultation with the CJI and the Governor of the state. The Chief Justice of the High Court concerned too should be consulted.

NJAC proposal:

In a bid to reform the judicial system, Parliament of India amended the Constitution and brought about the 99th Amendment to provide for the NJAC after the new government came to power. Subsequent ratification of 20 States was also obtained and it seemed that the collegium was history. However, soon petitions were filed challenging the constitutional amendment. The Supreme Court also struck down the 99th Amendment.

njac-1

Why was it struck down?

  • The composition of the NJAC, especially the inclusion in it of the Union Law Minister and two eminent persons was not widely appreciated. According to the court, the inclusion of the Law Minister in the body impinged on the doctrine of separation of powers.
  • The NJAC act gave any two members a veto over all decisions, raising the question whether the executive representatives could overrule the judicial members.
  • The court also felt that this new institutional mechanism to appoint judges impinged on the independence of the judiciary, a basic feature of the Constitution.
  • The clauses provided in the amendment were also inadequate to preserve the primacy of the judiciary.
  • And even the Attorney General, representing the government of India, could not convince the court that the amendment, along with the NJAC Act, was aimed at restoring the system of checks and balances which, according to the government, was lost after the Supreme Court created the collegium scheme of appointments.

Reforming collegium:

Following its judgment, the court, admitting that the existing collegium system had serious flaws, called for suggestions to improve it. Responses came in thick and fast. The court permitted the government to formulate MoP. While permitting the government to formulate a revised MoP, the court was careful to mention the points that needed to be addressed, namely eligibility criteria, measures for transparency, establishment of a Secretariat, and a complaints mechanism. It also specified that this MoP was for the faithful implementation of its decisions in the earlier cases. However, the Court raised concerns over some issues in the draft Memorandum of Procedure (MoP) submitted by the government. The Supreme Court had asked the government to re-consider these clauses.

Recent developments:

Recently, the Central government accepted some recommendations of the Supreme Court collegium on draft memorandum of procedures for appointment of judges.

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Suggestions accepted:

  • Lifting the proposed cap on the number of jurists and lawyers for appointment as judges in the Supreme Court. The draft sent to the Chief Justice of India in March had recommended that up to three judges from among jurists and lawyers could be appointed.
  • Seniority is now being considered to be the main condition. The government had earlier proposed merit-cum-seniority as the criterion for elevation of judges.

What has not been accepted?

The government has not changed its stand on the proposed clause under which it will have powers to reject any candidate recommended by the collegium on grounds of public interest and national security. The collegium had earlier rejected the proposal. However, the revised draft proposes that the government will communicate to the collegium the reasons for rejecting any name recommended by it.

Which are the other areas that need immediate attention?

  • Vacancies in the Supreme Court and in the High Courts need to be filled up. Most High Courts are functioning with half or one third the sanctioned strength.
  • Persons of doubtful integrity who might have been appointed by the mistake of the collegium have to be weeded out. A method has to be found without the process of impeachment, and voluntary retirement could be an option.
  • The infrastructure in the courts needs improvement — there will not be enough court halls, chambers, or staff, if all the vacancies are filled.
  • There needs to be appointment of ad hoc or additional judges to clear pending cases — the reluctance of the collegium to appoint retiring judges as ad hoc judges is baffling.

How the present collegium system can be improved?

  • Accepting applications for appointments as High Court judges should be followed. This is followed in the U.K. and can be adopted in India too.
  • There must be full and complete disclosure of relationships and affiliations of applicants to sitting and retired judges.
  • Minimum eligibility criteria for consideration need to be laid down, including appearances in important cases.
  • Parliament should also enact changes to provide a uniform retirement age for judges of the Supreme Court and the High Courts, so that the present practice of some of the judges seeking to be in the good books of the existing or prospective members of collegiums in the Supreme Court is avoided. This will also obviate the argument of expectation based on seniority for appointment as judges of the Supreme Court.
  • The retirement age may be raised uniformly to 70 with a condition that no judge retiring at 70 shall be appointed as a member of any Tribunal.
  • The continuation as a judge after the age of 65 should be subject to being found ‘not unfit’ by the Permanent Commissions.
  • A minimum tenure of two years should be provided to the Chief Justice of India and the Chief Justice of High Courts.
  • No judge who is more than 68 years should be made a Chief Justice.
  • Court management should not be vested with Judicial Officers but assigned to trained managers.
  • All the three organs of the state should also introspect as to why there has been no or inadequate representation in the higher judiciary from amongst women.

Conclusion:

The opacity in the appointment of judges has allowed for covert manipulation. It has also meant that often the best legal minds are left out of the judicial system. A transparent, fair, and open system of appointment is central to ensuring that people have faith in the legal system, which is essential for functional democracy, doing business, and ensuring development.