GS (M) Paper-2: “Separation of powers between various organs dispute redressal mechanisms and institutions.”
When government plays judge
- By returning 43 out of 77 names recommended by the Supreme Court collegium for the appointment of judges in high courts, the Centre has discarded the principle of primacy of the Chief Justice of India (CJI) in appointments and transfers of the higher judiciary.
- Executive despotism in judicial appointments is a pre-condition for the debasement of democracy.
- In theory, the last word still belongs to the collegium, comprising of the CJI and four other senior judges of the Supreme Court (SC).
- In reality, the political executive is vetoing judicial selections.
- The rejection of the collegium’s selections is akin to Indira Gandhi’s grievous assaults on judicial independence.
- In the 1970s-1980s,the government worked on the project of a “committed judiciary” by controlling judges’ appointments and transfers.
Appointment of NJAC
- The National Judicial Appointments Commission Act enacted by the NDA government gave the political executive, and two “eminent persons” chosen by it, final say in the appointment (or transfer) of judges.
- By striking down the NJAC, the court restored the collegium’s primacy.
- It is undeniable that the collegium system bred improbity in some cases. The SC’s record in dispensing justice has also been patchy.
- It failed to give full justice to the victims of three state-supported riots: The 1984 anti-Sikh massacre, the 1992-93 Mumbai carnage and the 2002 Gujarat killings.
- The 2013 NEET judgement, quashing single entrance tests for the medical course, impacted students. The order was recently recalled by the SC.
- Some years ago, a CJI was publicly indicted for wrongfully taking up cases involving substantial corporate interests.
- However, it was the SC that cancelled the 2G telecom spectrum licenses and the 214 allocations of coal blocks, granted dishonestly and illegally by the UPA regime.
Government’s Intervention in Judicial Appointment
- After May 2014, when several institutions meekly surrendered before the new government, the court upheld federal democracy and reinstated elected governments in Arunachal Pradesh and Uttarakhand.
- In other constitutional and statutory institutions, where appointments are controlled by the political executive, the party which wins an election gives positions to cronies, relatives and friends.
- Soon after being elected, the present government scuttled senior lawyer Gopal Subramanium’s appointment as a SC judge. As amicus, Subramanium had assisted in the investigation of the Sohrabuddin Sheikh encounter case, leading to Amit Shah’s arrest.
- Though the collegium had the power of re-nominating Subramanium, in which case the government was bound to accept it, he withdrew his consent, citing government’s malafide intent.
- Historically, chief ministers have had a significant say in the appointment of high court judges.
- The 14th report of the Law Commission of India (LCI) noted, “Chief minister has a hand direct or indirect in the matter of the appointment to the High Court Bench. The inevitable result has been that appointments are not always made on merit but on extraneous considerations of community, caste, political affiliations, and likes and dislikes have a free play.”
- The pernicious influence of the executive on judicial selections may partly explain the failure of several high courts in protecting civil liberties and fundamental rights and ruling decisively in cases of corruption.
- The current regime’s attempts to exercise the power of veto in judges’ selection will imperil our democracy.
GS (M) Paper-2: “Important aspects of governance, transparency and accountability”
State Funding of Elections
The Prime Minister wants a debate on transparency in political funding, as part of the drive to clean up black money.
How black money plays a role in elections?
- Indian elections cost huge sums of money. These moneys can hardly come from retail contributions of political-party sympathisers. It has to come from big corporate houses.
- But, contributions from corporate houses are largely from undeclared income and, hence, the contribution is not recorded.
What is state funding?
- The idea of state funding of elections is a concept designed to reduce corruption by funding elections with government money as opposed to individual campaign contributions.
- Many recommend that state funding of elections can be the best way to achieve transparency in political funding.
- It is also believed that state funding is a natural and necessary cost of democracy. It brings new and growing parties in par with the established parties, thus ensuring fair elections.
- If parties and candidates are financed with only private funds, economical inequalities in the society might translate into political inequalities in government.
Is the state funding a good idea?
- In theory, State funding would provide a level playing field for political parties and cut out money power from the equation, but in practice things may not work out so linearly. India collects only about 16% of GDP as tax.
- The state expenditure on many essential public goods such as primary healthcare and public health engineering is very small.
- Given this situation, the public resources have to be channelled towards and not diverted from such essential services, and that too to finance something that already gets abundantly financed.
- Further, the state funding of elections will not prevent parties from lobbying and getting undisclosed supplementary private funding, with associated implications.
- Therefore State funding is not the solution to opaque funding of politics in India.
Why transparency in political funding is needed?
- This is a prerequisite for any sustained and effective cure for black money.
- As long as India’s politics is systemically dependent on unaccounted money for its finances, there can be no decisive political will to eradicate black money.
- Political parties spend huge amounts in election years but report income that is only a fraction of what they spend. When the bulk of their spending is financed by unaccounted income, it compromises the integrity of governance, corrupts the civil service, promotes crony capitalism and makes managing the government a decisive core competence of entrepreneurship.
- All this will change only if the sources of political funding are made fully transparent.
- In India, the main reason for the prevalence of black money in election spending is the unrealistically low limits set by the Election Commission of India on campaign spending by political parties and candidates. A more realistic campaign spending limits should be set.
- Part-public funding of election campaigns is a practice in some countries. e.g. United States and Britain. We could have our own version.
- The strict monitoring of expenditure by political parties and their functionaries at every level, starting with the panchayat, polling booth area and municipal ward should be done.
- Every party should disclose its expenditure every month at every level.
- This should be open to challenge by rival parties, media, etc.
- The Election Commission could determine the actual expenditure and ask the parties to show source of income.
- Parties will have to collect money in the open.
- These steps will ensure transparency.