Daily News Analysis 14th feb 2023

Constitutional oath is not a mere formality

Relevance in UPSC: General Studies paper -2:  Appointment to various Constitutional Posts and Powers, Functions, and Responsibilities of various Constitutional Bodies.

Introduction: 

Recently, the Supreme Court witnessed unprecedented controversy over the appointment of L. Victoria Gowri as an additional judge of the Madras High Court.   

Background:

●       The Supreme Court collegium had recommended Gowri’s elevation to the high court on 17 January 2023.

●       However, her appointment has been controversial. Lawyers from the Madras High Court demanded the recall of the recommendation. It was alleged that she made ‘hate speeches’ against Christians and Muslims.

●       The Supreme Court had refused to interfere with Gowri’s appointment, saying that the political affiliation of a candidate or public expression of their views does not impact their work as a judge.

●       Article 217 of the Constitution: It states that the President shall appoint the Judge of a High Court in consultation with the Chief Justice of India (CJI), the Governor of the State.

●       High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.

Oath of Judges:

  • It is administered by the President of India or some person appointed by him for this purpose.
  • The oath to be taken by a judge of a High Court under Schedule III of the Constitution requires a declaration of allegiance to the Constitution and performance of duties “without fear or favour, affection or ill-will”.
  • The appointee must also declare that she will “uphold” the Constitution and the laws.

Key challenges before the Judiciary:

The recent crisis has brought the issue of judicial independence into the limelight. The friction between the Executive and judiciary has led to the pendency of judicial appointment.

What is the meaning of judicial independence?

  • Independence of the judiciary means that the other organs of the government like the executive and legislature must not restrain the functioning of the judiciary in such a way that it is unable to do justice.
  • It also implies that judges must be able to perform their functions without fear or favor.
  • Independence of the judiciary does not imply arbitrariness or absence of accountability.

Way Forward:

  • It is time to think of a permanent, independent body to institutionalize the process with adequate safeguards to preserve the judiciary’s independence guaranteeing judicial primacy but not judicial exclusivity.

House rules and the weapon of expunction

Relevance in UPSC: General Studies paper -2:  Parliament and State Legislatures—Structure, Functioning, Conduct of Business, Powers & Privileges and Issues Arising out of these.

Introduction:

  • The expunction of portions of the speeches made by some Opposition politicians in Parliament recently is an issue that has sparked off a debate on an action taken by the Speaker, and the Chairman of the Rajya Sabha.

About Article 105 of the Indian Constitution:

  • It deals with the powers, and privileges of the Houses of Parliament (collective), its members (individual), and committees. It has the following provisions –
  • There shall be freedom of speech in Parliament
  • MPs are exempted from any legal action for any statement made or act done in the course of their duties in Parliament.
  • This immunity extends to certain non-members as well – the Attorney General of India or a Minister who may not be an MP but speaks in the House.
  • This article guarantees that MPs can carry out their duties without interruption or fear, upholds the dignity and authority of the Parliament, and supports its democratic operation

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  • Instead of the court, the Speaker of the House will deal with instances where a Member goes beyond the bounds of permissible free expression.

Rules of Lok Sabha and Rajya Sabha:

  • The two Houses have identical rules, with one exception.
    • In RS, MPs cannot make a personal charge against a Member.
  • The implementation of the rule book is in the hands of the Chairman of RS and the Speaker of LS.
  • The rules of procedure give the two presiding officers discretion in removing words from the recorded proceedings of the House which are “defamatory or indecent or unparliamentary or undignified”.
  • The LS Secretariat has brought out a volume of ‘Unparliamentary Expressions’.
  • This discretion is required because MPs have constitutional protection from legal proceedings.

Limitations:

  • In accordance with Article 121 of the Indian Constitution, no judge’s conduct may be discussed in Parliament unless it is part of a motion that asks the President to remove the judge.
  • Article 118: Freedom of speech should be in accordance with the constitutional provisions and subject to the rules and procedures of the parliament.

SC’s rulings:

  • Members will be allowed to take part in parliamentary debates without fear according to Article 105, which also offers the most protection against civil and criminal prosecutions.
  • But such immunity must be on their speech or vote in Parliament.

Way Forward:

  • The Parliament is the “platform to fix the accountability of the Executive” and criticism of the government amounts neither to an allegation against an individual Member nor to an attack on the dignity of the House/s.

₹86,912 crores released as GST compensation payable to all States up to May 31, 2022: Finance Minister

Relevance in UPSC: General Studies paper -3:  Indian Economy and issues relating to Planning, Mobilization of Resources, Growth, Development, and Employment.

Introduction:

  • Finance Minister Nirmala Sitharaman on Monday said that a total of ₹86,912 crore had been released towards Goods and Services Tax (GST) compensation payable to all States up to May 31, 2022, but it had been delayed for some States due to the non-availability of the Accountant General’s (AG) authenticated certificate.

About Goods and Services Tax:

  • GST was introduced through the 101st Constitution Amendment Act, 2016.
  • It is one of the biggest indirect tax reforms in the country.
  • It was introduced with the slogan of ‘One Nation One Tax’.
  • The GST has subsumed indirect taxes like excise duty, Value Added Tax (VAT), service tax, luxury tax etc.
  • It is essentially a consumption tax and is levied at the final consumption point.
  • This has helped mitigate the double taxation, cascading effect of taxes, multiplicity of taxes, classification issues etc., and has led to a common national market.

GST Compensation

  • In theory, the GST should generate as much revenue as the previous tax regime. However, the new tax regime is taxed on consumption and not manufacturing.
  • This means that tax won’t be levied at the place of production which also means manufacturing states would lose out and hence several states strongly opposed the idea of GST.
  • It was to assuage these states that the idea of compensation was mooted.
  • The Centre promised compensation to the States for any shortfall in tax revenue due to GST implementation for a period of five years.
  • This promise convinced a large number of reluctant States to sign on to the new indirect tax regime.

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Compensation Cess

  • States are guaranteed compensation for any revenue shortfall below 14% growth (the base year 2015-16) for the first five years ending 2022.
  • GST compensation is paid out of Compensation Cess every two months by the Centre to states.
  • The compensation cess was specified by the GST (Compensation to States) Act, 2017.

 

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Saudi Arabia To Send Its First Female Astronaut Into Space

Relevance in UPSC: General Studies paper -3:  Awareness in the fields of IT, Space, Computers, Robotics, Nano-technology, Bio-technology, and issues relating to Intellectual Property Rights.

Introduction

  • Saudi Arabia will send its first-ever woman astronaut on a space mission later this year, state media has reported, in the latest move to revamp the kingdom\’s ultra-conservative image.

Details

  • Rayyana Barnawi will join fellow Saudi male astronaut Ali Al-Qarni on a mission to the International Space Station (ISS) \”during the second quarter of 2023.

The astronauts \”will join the crew of the AX-2 space mission\” and the

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  • space flight will \”launch from the USA\”.
  • Saudi Arabia will be following in the footsteps of the neighboring United Arab Emirates which in 2019 became the first Arab country to send one of its citizens into space (astronaut Hazzaa al-Mansoori spent eight days on the ISS).

About International Space Station:

  • The International Space Station (ISS) is a space station, or a habitable artificial satellite, in low Earth orbit.
  • Its first component was launched into orbit in 1998, and the ISS is now the largest human-made body in low Earth orbit.
  • It circles the Earth in roughly 92 minutes and completes 5 orbits per day.
  • The ISS serves as a microgravity and space environment research laboratory in which crew members conduct experiments in biology, human biology, physics, astronomy, meteorology, and other fields.
  • Five different space agencies representing 15 countries built the $100-billion International Space Station and continue to operate it today.
  • The ISS program is a joint project between five participating space agencies:
    • NASA (United States),
    • Roscosmos (Russia),
    • JAXA (Japan),
    • ESA (Europe), and
    • CSA (Canada)
  • Continuous presence at ISS has resulted in the longest continuous human presence in low earth orbit.
  • It is expected to operate until 2030.
  • NASA plans to decommission it in 2031.

Draft Bill vests powers entirely in Geological Survey of India, say experts

Relevance in UPSC: General Studies paper -3:  Conservation, Environmental Pollution and Degradation, Environmental Impact Assessment.

Introduction

  • A draft Bill, aimed at protecting India’s geological heritage that includes fossils, sedimentary rocks, and natural structures, has raised alarm in India’s geo-sciences and palaeontology community.

Details

  • The draft Geo-heritage Sites and Geo-relics (Preservation and Maintenance) Bill, 2022, while deemed necessary by several researchers, vests powers entirely in the Geological Survey of India (GSI), a 170-year-old organization that comes under the Ministry of Mines.
  • Provisions of the Bill give it the power to declare sites as having ‘geo-heritage’ value, take possession of relics (fossils, rocks) that rest in private hands, prohibit construction 100 metres around such a site, penalise — with fines up to ₹5 lakh and possibly imprisonment — vandalism, defacement, and violations of directives of a site by the Director General of the GSI.

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About the Geological Survey of India (GSI):

  • It is a government organization in India, attached to the Ministry of Mines for conducting geological surveys and studies.
  • The GSI was established in 1851 primarily to find coal deposits for the Railways.
  • It is the prime provider of basic earth science information to the government, industry, and the general public.
  • Its main function is related to the creation and updation of national geoscientific information and mineral resource assessment.

SC upholds the constitution of the J&K Delimitation Commission, extension of tenure of its chairperson

Relevance in UPSC: General Studies paper -2:  Functions and Responsibilities of the Union and the States, Issues and Challenges Pertaining to the Federal Structure, Devolution of Powers and Finances up to Local Levels and Challenges Therein.

Introduction

The Supreme Court on Monday dismissed a challenge to the constitution of the Jammu and Kashmir Delimitation Commission to readjust constituencies in the new Union Territory.

Details

  • Articles 2 and 3 of the Constitution enable the Parliament to create new States and Union territories. Accordingly, the two new Union territories have been created.
  • The J&K Reorganisation Act which created the two new Union territories assigns the role of readjustment of constituencies to the Delimitation Commission under the Delimitation Act, 2002.
  • A law made under Article 3 can always provide for the readjustment of the Constituencies in the newly constituted States or Union territories through the Delimitation Commission.

J&K Delimitation Commission:

  • Delimitation became necessary when the Jammu and Kashmir Reorganization Act, 2019 increased the number of seats in the Assembly.
  • The erstwhile J&K state had 111 seats — 46 in Kashmir, 37 in Jammu, and 4 in Ladakh — plus 24 seats reserved for Pakistan-occupied Kashmir (PoK).
  • The Delimitation Commission was set up on 6th March 2020.
  • It was headed by retired Supreme Court Justice Ranjana Prakash Desai, it has the Chief Election Commissioner and J&K’s Chief Electoral Officer as members and J&K’s five MPs as associate members.

Delimitation

  • Delimitation is the act of fixing or redrawing the limits or boundaries of territorial constituencies (Assembly or Lok Sabha seat) in a country or a province having a legislative body, as per the Election Commission.
  • The delimitation exercise is carried out by an independent high-powered panel known as the Delimitation Commission whose orders have the force of law and cannot be questioned by any court.

Constitutional Basis for Delimitation:

  • Under Article 82, the Parliament enacts a Delimitation Act after every Census.
  • Under Article 170, States also get divided into territorial constituencies as per Delimitation Act after every Census.
  • The delimitation commission is an independent body constituted under Article 82 after the Parliament enacted a Delimitation Act after every census.

‘Worried’ about pending transfers, SC says a ‘lot more’ is needed to be done

Relevance in UPSC: General Studies paper -2:  Appointment to various Constitutional Posts, Powers, Functions and Responsibilities of various Constitutional Bodies.

Introduction

  • The Government’s delay in clearing certain pending transfers, including that of Orissa High Court Chief Justice S. Muralidhar to Madras and reiterated Collegium recommendation of senior advocate Saurabh Kirpal for appointment as Delhi High Court judge among others, saw a “worried” Supreme Court observe that a “lot more” is needed to be done, though “some developments” have happened since the last hearing.

Collegium system

  • The collegium system is the way by which judges of the SC and HCs are appointed and transferred.
  • It is a five-member body, which is headed by the incumbent Chief Justice of India (CJI) and comprises the four other seniormost judges of the court at that time.
  • A High Court collegium is led by the incumbent Chief Justice and two other seniormost judges of that court.
  • Judges of the higher judiciary are appointed only through the collegium system and the government has a role only after names have been decided by the collegium.
  • The collegium system is not rooted in the Constitution or a specific law promulgated by Parliament, rather it has evolved through judgments of the SC.

The evolution of the Collegium system – Three Judges Cases

  • Gupta & Others v. Union of India, 1981: The opinion of the CJI had no primacy over the opinion of the Chief Justice of the HC, thus, both have equal importance in the consultation process.
  • Advocate on Record Association v. UoI, 1993: The court overruled the above case and held that in the matters of appointment and transfer of Judges, the view of CJI has the greatest significance.
  • In re Presidential Reference case (1998): The recommendation made by the CJI without following the consultation process for the appointment of SC and HC Judges is not binding on the government.

Criticism

  • According to the critics, the system is non-transparent since it is seen as a closed-door affair with no prescribed norms regarding eligibility criteria, or selection procedure.
  • The system is opaque and not accountable. Judges do not appoint judges all over the world, but in India, they do.

Way Forward

  • The Memorandum of Procedure (MoP) – an agreement between the judiciary and the government (which came into existence after NJAC was struck down) that outlines the criteria for appointing judges to the SC and HCs, must be followed in letter and spirit.
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