News & Editorial Analysis 22 December 2022
The Hindu News Analysis
Ties with Taliban (IR: GS ll) Page 6
The Taliban “cabinet” in a series of decisions that wipes out the many societal gains since 2001, the last time Taliban was in power, has announced a ban on female students studying in universities.
The Taliban regime is reneging on promises made during the Doha talks, including establishing an “inclusive government”.
The international community must now review its current policy towards the Taliban 2.0 regime. While no country recognises Taliban officially, many openly engage with the regime leaders; more than a dozen, including India, have diplomatic missions.
Instead of pleading helplessness, there is much that the global community can do, acknowledging that women’s rights are at the core of the issue with the Taliban, and not just a “desirable” outcome that is optional in Afghanistan’s future.
India must also curtail engagement with the Taliban, which depends on external assistance to run its government structures.
#Taliban #Afganistan #The_Hindu_Analysis
Maritime Anti-Piracy Bill passed in Rajya Sabha (Polity: GS ll) Page 11
The Rajya Sabha on Wednesday passed the Maritime Anti-Piracy Bill on Wednesday, two days after the Lok Sabha cleared it.
The Bill would fulfill all the expectations of the United Nations Convention on the Law of the Sea (UNCLOS), which India is a signatory to, for cooperation and repression of piracy in high seas.
The Bill also addresses the issue of death penalty “as an exceptional case”. The quantum of punishments envisaged are in line with the gravity of offences. This will strengthen our maritime security, including the safety of our maritime trade routes and the well-being of Indian seafarers in international waters.
#Maritime_Anti-Piracy_Bill #India #Lok_Sabha #UNCLOS #The_Hindu_Analysis
Sri Lanka is awaiting assurances from India, China, says Central Bank Governor (IR : GS ll) Page 13.
Sri Lanka is waiting for financing assurances from its bilateral creditors, including India and China, to tap support from the International Monetary Fund (IMF).
The IMF has approved a $2.9 billion package to help the island nation facing its worst economic crisis in decades. However, Sri Lanka must now obtain adequate financing assurances from its creditors, for the IMF Board to approve the promised Extended Fund Facility (EFF).
Sri Lanka has been in talks with China, Japan, and India — its three major bilateral creditors whose role is key for Sri Lanka to obtain crucial IMF support—to restructure the billions of dollars owed to them.
Multilateral loans, taken on low-interest and over a long term, will not be restructured, and the actual negotiation with commercial creditor will commence only after the IMF programme kicks in.
#Sri Lanka #India #China #Bilateral-Creditors #IMF #The_Hindu_Analysis
The Hindu Editorial Analysis
Autonomy Of Election Commission
On a critical issue relating to the process by which the Election Commission of India (ECI) is established and election commissioners are appointed throughout November and December, a Constitution Bench of the Supreme Court of India heard testimony.
Although the Court hasn’t yet, it’s expected to at the beginning of 2019. The court’s decisions, however simple, have a significant impact on Indian democracy: Is it legal for the executive branch to have total control on ECI nominations? If not, what form of nomination is sufficient to maintain the ECI’s objectivity and the fairness of the voting process?
About the Election Commission:
In order to guarantee free and fair elections across the nation, the Election Commission was specifically formed by the Indian Constitution as a permanent, independent organisation.
According to Article 324 of the Constitution, the election commission must have the authority to supervise, direct, and oversee elections for the Indian Parliament, state legislatures, and the positions of president and vice president.
The Chief Election Commissioner (CEC) and any additional election commissioners (ECs), in the number the President may from time to time fix, shall make up the electoral commission.
The president appoints the chief election commissioner and the other election commissioners.
The chief election commissioner will serve as the election commission’s chairman whenever a new election commissioner is appointed.
The president may also appoint any regional commissioners he deems essential to assist the electoral commission after consulting with it.
The President may promulgate regulations defining the duties and terms of employment for regional commissioners and election commissioners.
CEC and ECs:
Three election commissioners make up ECI at the moment. The CEC and two ECs have the same rights and privileges as a Supreme Court judge in terms of compensation, perks, and other advantages.
The Commission will make a decision by majority vote if the CEC and ECs are unable to agree.
They have the opportunity to resign at any moment or be removed from office before the end of their term. They hold that position for a period of six years or until they reach the age of 65, whichever comes first.
Among ECI’s responsibilities and power are:
Establishing the electoral constituencies’ actual boundaries
Making voter registration lists, notifying voters of election dates and times, and recognising political parties
Giving parties election symbols
Specify the election’s behaviour guidelines.
Advising the President and Governor on issues pertaining to, respectively, the expulsion of legislators from the state legislature and the British parliament.
The president will be informed after a year whether elections can be held in a state where the president is in charge of the government in order to prolong the state of emergency.
Providing guidance to the Supreme Court and High Courts on issues involving post-election disputes between candidates and political parties
The recognition of political parties and the attribution of electoral symbols to them are two other issues that it resolves as a court.
The legislative branch, the executive branch, and the judicial branch are the three “wings” of the state according to the conventional understanding of modern democracy. The Constitution is in charge of dividing authority among these three wings and making sure there is a proper amount of reciprocal check and balance. The electoral commission is one organisation that handles administrative and implementational issues and is typically viewed as falling under the purview of the executive branch.
Examples from different nations:
The existing constitutions of every country in the globe acknowledge this. For instance, in the constitutions of South Africa and Kenya, where they are referred to as “integrity institutions” and their “independence” is mandated, “fourth branch institutions” like election commissioners and human rights commissions are given special importance. Numerous individuals from various state branches typically take part in the appointment process for such boards.
The Court therefore faces a challenging task. Ineffective, with a murky past, and undermining the rule of law, the current system, which gives the government total control over selections, is blatantly unacceptable. However, the Court must exercise caution to avoid applying band-aid or temporary fixes.
The Court may also declare a suspended declaration of invalidity, which imposes a few temporary rules while leaving it to the legislature to implement a longer-term, structural solution.
#Autonomy #Election_Commission #India #Editorial_Analysis #The_Hindu
The Indian Express Editorial Analysis
Independence Of Judiciary
It is necessary to alter the judiciary’s collegium structure, which controls the nomination and removal of Supreme Court and High Court judges.
While rejecting the NJAC proposal, the Supreme Court stated that the Indian constitution must include a separate judiciary from the executive branch.
By acting as a check on Parliament and defining the limits of its authority, the judiciary has the responsibility of preserving the legitimacy of the government.
Swami Kesavananda Bharati, the head of the Kerala-based Edneer Matha, petitioned the Supreme Court in 1970 in accordance with Article 26 of the Constitution to reject efforts made by the Kerala government to restrict the Matha’s capacity to manage its property.
After three years, the Supreme Court described the fundamental structure of the Constitution with a vote of 7–6 in favour, highlighting the restrictions on Parliament’s ability to amend the Constitution, particularly its core values and structure.
During the Emergency, a new slate of judges served on the Supreme Court.
One such instance was when the president replaced three justices with more experience by appointing AN Ray as chief justice. One of the judges that disagreed with the Kesavananda ruling was him.
He presided over a 13-judge panel that reconsidered the landmark decision despite the fact that no review petition had actually been filed. Instead, only an oral request was used to begin the review, which was against the law and led to the chief justice quickly dissolving the bench.
Despite a committed judiciary at the Center, the basic structure notion barely survived. The crucial choice made by India helped tip the scales in favour of democracy over dictatorship.
What defenses have been made recently in support of the appointment and relocation of judges:
A recent disagreement between the Center and the court over the interpretation of Articles 124 (2) and 217 (1) of the Constitution.
The president may only nominate a justice to the Supreme Court in line with Article 124(2) and after consulting with the relevant Supreme Court justices, including the chief justice, and state high courts.
Similar to this, before the president appoints a judge to a high court, Article 217 (1) of the Indian Constitution requires consultation with the Chief Justice of India, the state governor, and the top justice.
A collegium system for choosing judges was formed as a result of judicial interpretation in the cases SP Gupta v. Union of India (1981), Supreme Court Advocates-on Record Association v. Union of India (Second Judges case) (1993), and Article 143(1) v. Unknown (Third Judges Opinion) (1998).
The Centre can currently accept or reject recommendations from the Collegium System, however if a suggestion was made twice, the government was obligated to accept it.
As a result of the Centre’s refusal to implement the Collegium’s recommendations, this consensus has now given way to a deadlock.
This long-running conflict between the independent judiciary and the hegemonic Centre resulted in roughly 381 vacant judgeships in the high courts as of August 2022. (out of a total of 34 vacancies).
5,342 seats out of the total 24,631 seats in the lower court, or 20% of its capacity, are empty.
Such vacancies will likely have an impact on the judiciary’s effectiveness, particularly in the high courts of Bombay, Punjab & Haryana, Calcutta, Patna, and Rajasthan (with about four crore cases pending, as of August 2022).
Additional adjustments to the judicial system are still necessary while protecting its independence:
The Collegium system may still be used, but a secretariat may be given the power to choose and nominate candidates for justices rather than the Executive. There were just three women and two SC judges in the Supreme Court as of December 2022. Current judges, members of bar associations, attorneys and laypeople may all work for the secretariat. More racial and cultural diversity in the courts should be supported.
A new Court of Appeal must be established: It is unquestionably required to establish a new Court of Appeal in addition to choosing judges (refer PIL by V Vasanthakumar).
Since the Supreme Court was never intended to be a regular court of appeal against rulings by high courts, it shouldn’t be considering bail requests (Bihar Legal Society v. Chief Justice of India, 1986).
We should create a Supreme Court of Appeal with locations in significant metro areas, according to the Law Commission’s recommendation.
The Supreme Court should create a Constitutional Court, which would eliminate about 50 of the cases that are currently pending there.
Setting a 65-year retirement age for SC and HC judges with a grace period:
Additionally, we must work to establish a set retirement age, say 65, for judges, whether they are on the Supreme Court or at the level of the high courts. Judges should not be considered for government positions until they have had some time to reflect after retiring.
Judicial independence is still essential to India’s democracy. A reliable and moral selection process for judges is necessary for preserving judicial independence.
Any nomination must guarantee judicial accountability and separate the judiciary, on a structural and personal level, from other governmental agencies.
Such a judicial system must be unaffected by political ideologies, internal hierarchies, and external social pressure. While making this argument, we shouldn’t push for a separate judiciary.
#Independence #Judiciary #India #Editorial_Analysis #The_Indian_Express
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