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Underlining that the government is bound to accept the Collegium’s reiteration of its decision on appointment of judges, the Supreme Court issued notice and sought a response from the Ministry of Law and Justice over delays in appointing judges.
Needless to say that unless the Bench is adorned by competent lawyers, the very concept of Rule of Law and Justice suffers.
In the elaborate procedure from taking inputs from the Government post recommendation from the Collegium of the High Court, the Supreme Court Collegium bestowing consideration on the names, there are enough checks and balances.
A bench comprising Justices Sanjay Kishan Kaul and Abhay Oka issued a “simple notice” to the Justice Secretary and the Additional Secretary (Administration and Appointment) in the Ministry of Law and Justice to respond before November 28.
As the second-most senior judge of the SC, Justice Kaul is also part of the Collegium headed by CJI D Y Chandrachud.
The Supreme Court noted that currently there are 10 recommendations pending with the government where the Collegium has reiterated its decision on appointment of a candidate as a judge of the HC.
Separately, it noted that 11 names recommended by the Collegium are also pending with the government without reason.
We find the method of keeping the names on hold whether duly recommended or reiterated is becoming some sort of a device to compel these persons to withdraw their names as has happened.
The case is a contempt petition against the government for breach of the SC’s directives in April 2021, setting a fixed four-month timeline for the government to act on the Collegium’s recommendations.
Although it was filed in October last year, the case had not come up for hearing for over a year. Normally, the CJI who heads the Collegium communicates with the government on the administrative side on appointment of judges.
The last time the government was asked to address delays in appointment on the judicial side was in 2016 by then CJI T S Thakur.
Apart from the delays in appointment of HC judges, the SC also noted that the Collegium’s recommendation to appoint Bombay High Court Chief Justice Dipankar Datta as a judge of the Supreme Court is also pending with the government.
On September 26, the Collegium headed by then CJI UU Lalit had recommended Justice Datta. After that, the then CJI had proposed recommending four more candidates including a senior advocate for appointment as judges of the SC, but the Collegium was split over deciding on the recommendations through a written note instead of a meeting.
The Court’s order also comes days after Law Minister Kiren Rijiju criticised the Collegium process as “opaque” and said he was “not satisfied” with the system of appointing judges.
The Editorial Page
A court of the future (Page no. 10)
(GS Paper 2, Judiciary)
The reach of India’s highest court is all-pervasive. The Supreme Court sits in final judgment over decisions not only of the high courts in the states (there are 18 high courts for 28 states and eight Union Territories), but also over a hundred tribunals, central and state, functioning throughout India.
And the law declared by the Supreme Court, its pronouncements on the constitutional validity of enacted law, including constitutional amendments, is binding on all other courts and authorities in the country (Article 141). There is virtually no area of legislative or executive activity which is beyond the highest court’s scrutiny.
Empowering itself with the trappings of modern technology, India’s Supreme Court has been striving to perform its arduous task.
But what of the future? First, and foremost, the judiciary as an institution needs to preserve its independence, and to do this it must strive to maintain the confidence of the public in the established courts.
The independence of judges is best safeguarded by the judges themselves — through institutions and organisations that the law empowers them to set up, to preserve the image of an incorruptible higher judiciary that would command the respect of all right-thinking people.
In the United States, under the Judicial Councils Act, 1980, this task has been gladly undertaken by the judges. But regrettably, so far, there is no law in India to guide our judges — only “guidelines”. There is a felt need for a law.
The 1980 US Act confers powers on bodies comprised of judges to take such action against a federal judge “as is appropriate, short of removal.”
Under this law, some time ago, a committee of fellow judges had investigated complaints against a federal district judge, John McBryde; the Judicial Council reprimanded him and suspended him from hearing new cases for a year.
McBryde challenged the decision. He argued that the 1980 law violated the judicial independence which the US Constitution had guaranteed to life-tenured federal judges; he said that it also interfered with the mechanism of Congressional impeachment that the US Constitution had established for removing judges.
A one-year suspension from hearing new cases, he argued, was nothing but a “temporary impeachment”. But a US Court of Appeals rejected all these pleas, and a petition for certiorari against its decision was denied by the US Supreme Court: It accepted the argument of the US Solicitor-General that judicial independence, protected by Article III of the US Constitution, was meant “to insulate judges from interference from other branches of government — not from oversight by other judges”.
Financing a just transition (Page no. 10)
(GS Paper 3, Environment)
The world is shifting to clean energy. Current geopolitics aside, renewables are becoming competitively cheaper, the threat of climate change is ever-urgent, and the business case is just too good to discount.
But this transition is easier said than done. Aside from the technical and economic challenges of alternative production and distribution, there is a human dimension.
Think of the mines, infrastructure and millions of workers currently working in non-renewable energy. Let’s take the individual level. If you have been a worker at a coal mine your entire life, which suddenly stops production for some external factors, you can be faced with a situation where your skills are no longer relevant, your geographic area has no alternative livelihood, and you don’t have the resources to move elsewhere. Now take the corporate level.
There can be political opposition to the shutting down of the mine. Large corporate interests aside, the opposition could also come from trade unions and other local bodies.
This can be counter-productive because the transition and the whole climate movement itself can appear tone-deaf at best and insensitive at worst. In fact, one could argue that unplanned transitions would only shift the problem to a new place.
Shifting to renewables requires planning and resources, which countries with the financial muscle are investing in. The Inflation Reduction Act of the Biden administration would pump $370 billion into climate and clean energy investments in the US. Several countries in Europe have set ambitious targets for emissions reductions. Even China has claimed that by 2025, a third of its energy needs will come from renewables.
This leaves the public sector and countries with weaker resources. Much like other challenges in emerging economies, here the need is great, access to capital is a challenge, and social safeguards are relatively weak.
Finance for climate action and finance for just transitions is a key topic at the ongoing COP27 in Egypt. As the delegates discuss the source and scale of finance, the channel of this finance is also incredibly important to consider.
Take the case of South Africa where the mechanics of finance have some interesting lessons. At COP26 in Glasgow, South Africa famously convened investment worth $ 8.5 billion into its plans for just transitions; five developed countries agreed to channel $8.5 billion. Very little of this materialised.
And as time went on, it became clear that almost all of this finance is loans. Worries remain that such plans will add to the country’s debt burden and leave workers behind.
The Ideas Page
Plugging the defence gap (Page no. 11)
(GS Paper 3, Defence)
DefExpo 2022 held in Gandhinagar, Gujarat in October drew attention to a major policy initiative of Prime Minister Narendra Modi — the need for India to acquire the appropriate degree of “aatmanirbharata” (self-reliance) in the defence sector and the arduous path ahead.
This objective is unexceptionable and the Modi government is to be commended for keeping this critical issue on the national radar.
Even as India aspires to become a $5-trillion economy, it is evident that it faces many national security inadequacies. The high dependency index on foreign suppliers (traditionally the former USSR now Russia) for major military inventory items is stark. This dependency induces a macro national vulnerability and dilutes India’s quest for meaningful and credible strategic autonomy. Furthermore, the current gaps in combat capacity expose the chinks in the Indian ability to safeguard core national security interests. The Galwan setback apropos China is illustrative.
DefExpo had an India focus — only domestic entities were allowed to participate. PM Modi asserted there that Make in India is becoming a success story in the defence sector and added: “Our defence exports have grown eight times in the last five years.
We are exporting defence materials and equipment to more than 75 countries of the world. In 2021-22, defence exports from India reached $1.59 billion (about Rs 13,000 crore).
The government has now set a target of $5 billion (Rs 40,000 crore).” This is an ambitious target and will demand mission-mode resolve to be realised.
Unexpected exigencies such as the Russian invasion of Ukraine and other factors including the Covid that disrupted the global economy and related supply chains, further exacerbated by a weakening rupee add to the challenges faced by the Indian defence manufacturing ecosystem.
The management of this extended turbulence across different axes will be the biggest challenge for governance. Cumulatively, these multi-layered challenges and the opportunities embedded in moving towards “aatmanirbharata” ought to provide the framework for an informed and objective debate about the way ahead though this kind of discourse has remained elusive.
A quick recap of the more recent defence-related events includes, inter alia, the commissioning of the indigenously-designed and built aircraft carrier INS Vikrant; the firing of an SLBM (submarine-launched ballistic missile) from the INS Arihant; the radical decision to award the manufacture of a military transport aircraft (C 295) to a major private sector entity; the induction of the made in India Prachand LCH (light combat helicopter); and the conclusion of a deal with Russia to manufacture a Kalashnikov-type light weapon/small arms in India. These achievements have been applauded as the success of the indigenous effort.
Explained
Kempegowda of Bengaluru and BJP’s wooing of Vokkaligas (Page no. 13)
(GS Paper 1, History)
Prime Minister Narendra Modi on Friday unveiled a 108-foot statue of NadaprabhuKempegowda and inaugurated Terminal 2 of Bengaluru airport, which is named after the 16th-century figure credited with founding the city.
In June, Chief Minister Basavaraj Bommai had announced that a statue of Kempegowda would come up on the legislative Assembly premises within a year.
The 16th century chieftain under the Vijayanagara Empire is widely acknowledged as the founder of Bengaluru. It is said that he conceived the idea of a new city while hunting with his minister, and later marked its territory by erecting towers in four corners of the proposed city. He is also credited with having developed around 1,000 lakes in the city to cater to its drinking and agricultural needs.
Kempegowda’s name is everywhere in Bengaluru today — the city’s international airport, bus stand, main Metro station, and a major arterial road in the old city are all named after him.
Kempegowda belonged to the dominant agricultural Vokkaliga community. He is an iconic figure among Vokkaligas, Karnataka’s second most dominant community after Lingayats.
The statue was first announced in September 2019 by then Chief Minister B S Yediyurappa, and the project was taken forward by Chief Minister Bommai.
The plan for the statue was announced a day after a massive protest by Vokkaligas in Bengaluru over the alleged targeting of members of the community by central agencies.
The BJP was at the time aiming to rope in Vokkaliga leaders from southern Karnataka as part of its political push into the old Mysuru region.
Assembly elections are due in Karnataka in about six months. The BJP has never won a clear majority of over 113 seats in the 224-member Assembly, as it has struggled to attract the Vokkaliga community, which has traditionally supported former Prime Minister H D Deve Gowda’s JD(S) and the Congress.
Mangrove Alliance for Climate (Page no. 13)
(GS Paper 3, Environment)
At the 27th Session of Conference of Parties (COP27), this year’s UN climate summit, the Mangrove Alliance for Climate (MAC) was launched with India as a partner.
The move, in line with India’s goal to increase its carbon sink, will see New Delhi collaborating with Sri Lanka, Indonesia and other countries to preserve and restore the mangrove forests in the region.
Attending the event in Sharm El-Sheikh, Egypt, Union Minister for Environment Forest and Climate Change Bhupender Yadav said that India is home to one of the largest remaining areas of mangroves in the world — the Sundarbans — and has years of expertise in restoration of mangrove cover that can be used to aid global measures in this direction.
An initiative led by the United Arab Emirates (UAE) and Indonesia, the Mangrove Alliance for Climate (MAC) includes India, Sri Lanka, Australia, Japan, and Spain. It seeks to educate and spread awareness worldwide on the role of mangroves in curbing global warming and its potential as a solution for climate change.
Mariam bint Mohammed Almheiri, UAE’s Minister of Climate Change and the Environment, while launching the alliance, said that her country intends to plant 3 million mangroves in the next two months, in keeping with UAE’s COP26 pledge of planting 100 million mangroves by 2030.
“Increasing reliance on nature-based solutions is an integral element of the UAE’s climate action on the domestic as well as international level, therefore, we seek to expand our mangrove cover,” she said, as per a report in Dubai-based news channel Al Arabiya.
We are pleased to launch MAC jointly with Indonesia, and believe it will go a long way in driving collective climate action and rehabilitating blue carbon ecosystems.
However, the intergovernmental alliance works on a voluntary basis which means that there are no real checks and balances to hold members accountable.
Instead, the parties will decide their own commitments and deadlines regarding planting and restoring mangroves. The members will also share expertise and support each other in researching, managing and protecting coastal areas.
Mangroves have been the focus of conservationists for years and it is difficult to overstate their importance in the global climate context. Mangrove forests — consisting of trees and shrub that
live in intertidal water in coastal areas — host diverse marine life.
Legal battle over demolitions near tomb of Afzal Khan in Maharashtra (Page no. 13)
(GS Paper 1, History)
The Supreme Court sought reports from the district collector and the deputy conservator of forests of Satara district in Maharashtra, on the demolition drive conducted around the tomb of Afzal Khan, a 17th-century commander of the Adil Shahi dynasty of Bijapur.
These reports should indicate the nature of the structures and whether due process was followed in removing the alleged unauthorised structures, the court said.
A bench of Chief Justice D Y Chandarchud and Justice Hima Kohli was apprised by the Maharashtra government that the demolition drive was over and illegal structures built on government and forest land were razed.
The Hazrat Mohammad Afzal Khan Memorial Society, which has looked after the tomb since the 1950s, moved the Supreme Court through advocate Nizam Pash, seeking protection for the monument. However, Satara District Collector RucheshJaiwanshi said that the administration has removed “all the unauthorised structures that had come up around the grave of Afzal Khan”. On Thursday, the bench had agreed to hear an interim plea seeking a stay on the demolition.
In the early hours of Thursday, officials of the Satara District administration went to the fort constructed in the mid-seventeenth century by Maratha King Chhatrapati Shivaji in Pratapgarh with earthmovers and bulldozers. There was a heavy police presence in the area and elsewhere in the district.
The administration was there to demolish the “unauthorised structures”, constructed around the medieval tomb of Afzal Khan. Khan was killed by Maratha king Chhatrapati Shivaji Maharaj near the Pratapgarh Fort in Satara and a tomb was built there later.
The Bombay High Court’s 2017 orders, in response to petitions by Hindu right-wing organisations that “unauthorised structures” around the tomb be removed, were cited for the action.
As per the administration, since the early 1990s, additional structures – including pucca structures – were constructed at the spot. The High Court orders pertained to their removal.
The action was incidentally carried out on the 363rd anniversary of the killing of Afzal Khan by Shivaji, celebrated by admirers of Shivaji Maharaj as ‘Shiv Pratap Day’, and was seen as a major win for the Hindu groups in Maharashtra.
With Shivaji’s rise and increasing control of the region, Afzal Khan was seen as the man to subdue him in the Deccan. According to Sir Jadunath Sarkar’s authoritative book ‘Shivaji and his Times’, Khan put together a force of 10,000 cavalry and marched from Bijapur to Wai, plundering Shivaji’s territory along the way. Shivaji called a council of war at the fort of Pratapgarh, where most of his advisers urged him to make peace. However, Shivaji was not eager to back down and he set up a meeting with Khan.
Economy
Negative impact on digital ecosystem, say tech companies (Page no. 15)
(GS Paper 2, Polity and Governance)
The government should keep internet communication services such as WhatsApp, Google Meet and Signal, and other internet-based services outside the purview of the draft telecom Bill, industry groupings representing top tech firms including Apple, Amazon, Google, Meta, and Microsoft have said, arguing that such a prescription would be against global standards.
The “overbroad” definition of telecommunication services in the proposed telecom Bill could “have a negative impact on India’s digital ecosystem,” BSA -The Software Alliance, said in its submission to the Department of Telecommunications (DoT).
The Information Technology Industry Council (ITI), another industry group, has told the DoT that terms such as “internet-based communication services” and “interpersonal communication services” that are part of telecom services under the proposed Bill have not been defined clearly, which “can lead to regulatory overlap and ambiguity”. The Indian Express has reviewed both BSA and ITI’s comments to the draft Bill.
In September, the DoT had released the draft Indian Telecommunication Bill, 2022, in which it proposed regulating communication services including voice, video, and data offered by over-the-top (OTT) platforms such as Whatsapp as telecom services, requiring them to obtain a licence from the government just like other telecom operators.
In the draft Bill, the government has included internet-based and OTT communication services such as WhatsApp calls, Facetime, Google Meet etc. under telecom services, addressing a long-standing demand by telecom operators which have on several occasions called for a level playing field. At present, while telecom companies need a licence to offer services, OTT platforms do not.
However, BSA said that the government’s approach is an “outlier” compared to other jurisdictions where licensing requirements for internet-based services is “uncommon”.
Governments of other countries are typically unwilling to extend the scope of what constitutes a telecom service to cover IT and digital services and products,” it said, adding that in geographies like the European Union, Australia, South Korea and the United Kingdom, regulators have not imposed stringent telecom and licensing requirements on digital services.
ITI said that the International Telecommunication Union has not prescribed any regulatory mechanism for OTT communication services.
It added that India has made certain commitments at the World Trade Organization (WTO) for both national treatment and market access for certain telecommunications services, which such new licensing procedures could “nullify”.
High inflation a challenge; volatility in EMs likely to affect India:Yellen (Page no. 15)
(GS Paper 2, International Relations)
Listing inflation, headwinds of increased commodity prices and supply-side disruptions due to the Russia-Ukraine conflict as a challenge for the global economic outlook, India and US said they will collaborate to meet the most pressing global challenges at the 9th meeting of the India-US Economic and Financial Partnership.
Talking about global economic situation, US Treasury Secretary Janet Yellen said high inflation is a challenge that many advanced and developing countries face in common and that the central banks are first and foremost trying to deal with these problems.
“In part, this inflation reflects the spillover of Russia’s brutal war in Ukraine, which is boosting energy and food prices and for many emerging markets that have found themselves with high debts and high interest rates.
The cost of moving higher energy and food costs are the things that have made debt unsustainable for some of them. So I think that is something we will have to deal with going forward and figuring out a way to ease these debt burdens.
Finance Minister Nirmala Sitharaman said though the inflation number is in a “manageable range”, the challenges are “largely due to the import of crude.
The volatility in the emerging markets is going to affect India and that is one thing that we are keenly watching. The external factors causing a stress on inflation is something that we have to be mindful of.
Given the competitive cost of labour in the country, Sitharaman said it is time for concrete plans and businesses to come together, to have transfer of certain technologies without hesitation.
It is not that the US will be completely outsourced to India, but by locating some of them in India, you will get cost-effective labour. The labour costs are still competitive when compared to many other countries.
So this is a time for concrete plans, to have guidance given to businesses to come together, to have transfer of certain technologies without hesitation to joint venture partners so that you can do business without any insecurity. So, this would be the best time for investments to come in.
When asked about cryptocurrencies in an interactive session with the industry leaders and economists, Yellen said that international collaboration is important to deal with illicit finance and cross-border payments.
This has been a tremendous focus for the Biden administration and we have made a good deal of progress at least dealing with the issues of illicit finance in connection with cryptocurrencies in the US…this is an area where international collaboration is really important among public authorities, private sector and other stakeholders.