Editorial Notes

Editorial Notes 5th October 2016

Paris Climate Agreement; ILO, Trade Unions and Workers’ Welfare; Indo-Japan Nuclear Deal; Collegium System and Appointment of Judges.
By By IT's Editorial Notes Team
October 05, 2016


Polity & Governance

  • To be truly transparent
  • Striking a chord with workers

Environment & Ecology

  • The climate after Paris

Bilateral & International Relations

  • Clinching the N-deal with Japan


Polity & Governance

GS (M) Paper-2: “Appointment to various Constitutional posts, powers, functions and responsibilities of various Constitutional Bodies.”
GS (M) Paper-2: “Separation of powers between various organs”

To be truly transparent


The Constitution of India gave the higher judiciary another important function in addition to adjudication of disputes:

  1. To regulate the executive and legislature to stay within the bounds of their powers.
  2. To prevent the executive from violating the laws, the Constitution and the fundamental rights of people guaranteed by the Constitution, and the legislature from violating the Constitution.

The Supreme Court was held the final arbiter of the Constitution, and in 1973, in the landmark Kesavananda Bharati case, it held that even a constitutional amendment could not violate the basic structure of the Constitution.

For this reason, the independence of the judiciary from the executive and legislature has been regarded a cornerstone of the Constitution, and the Supreme Court has held it as an inviolable part of the basic structure of the Constitution.

It is on this basis that the Supreme Court, in the Second Judges Case in 1993, took over the power of appointing judges from the executive to itself, holding that the government’s primacy in appointing judges would also compromise the independence of the judiciary.


Collegium system- An instrument of change:

A collegium of three/five senior-most judges of the Supreme Court have had the decisive say in selecting judges to the Supreme Court/high courts.

  • This system has improved the independence of the judiciary, inasmuch as judges appointed subsequently are less liable to be politically partisan or be influenced by the executive.

Collegium system- Loopholes:

However, the collegium system is also alleged of nepotism, corruption, opacity and pendency in appointments.

  • The collegium did not lay down any system for transparency in appointments.
  • It also did not lay down any criteria for appointments or any method for evaluating candidates on those criteria.
  • With appointments taken over by the judiciary, the government’s ability to influence directly reduced, but the problem of nepotism and arbitrariness continued.
  • Since judicial independence is also compromised by the lure of post-retirement jobs in commissions and tribunals, in the hands of the executive, or the permission for foreign trips for judges, also in the hands of the government.
  • When the power to appoint was with the government, especially in the later years, the government often used it to appoint politically partisan or subservient judges.

Earlier it was said that in order to become a judge, “one did not need to know the law but the law minister”. It is now said that “one need not know the law but the existing collegium of judges” to become a judge.

NJAC (National Judicial Appointments commission) Act:

In order to regain some control over appointments, the government introduced the National Judicial Appointments Commission (NJAC) Act.

  • This Act provided for a selection committee of six people, which included three senior-most sitting judges of the Supreme Court, the Law Minister, and two persons to be selected by a committee of the Prime Minister, the Leader of the Opposition and the Chief Justice of India.
  • It also provided that the Secretariat of the Appointments Commission would be in the Law Ministry.
  • It further provided that any two members of the NJAC could veto the recommendation of the other four.

Opposition to NJAC:

  • In a concern of diluting the NJAC with the executive domination, majority sections among the judicial background has opposed the NJAC.
  • The Supreme Court struck down the constitutional validity of the amendment introducing the NJAC as well as the NJAC Act on the ground that it diluted the independence of the judiciary which was part of the basic structure of the Constitution.

Deadlock is still there:

  • After struck down the constitutional validity of the amendment introducing the NJAC as well as the NJAC Act, the Supreme Court did not take this opportunity to lay down any system of transparency in selection of judges.
  • On the other hand, it left it to the government to devise a memorandum of procedure for selecting judges, which would have to be approved by the Chief Justice of India.
  • This has resulted in the government trying to introduce clauses that could enable it to veto any recommendation on national security considerations.
  • The memorandum of procedure is therefore stuck, with no agreement in sight between the government and the Chief Justice of India.
  • The government is using this to delay appointments recommended by the collegium.
  • Judicial appointments have thus become hostage to the fight between the government and the judiciary on who should control appointments.
  • On the judiciary side, Information on judicial appointments and pending judgments has been refused by the Supreme Court, that has challenged every decision of the Central Information Commission (CIC) asking it to disclose such information.

Need for a full-time Independent body:

  • The selection to the higher judiciary must be made by a full-time (not ex officio) body, which is independent of the government.
  • The business of selecting hundreds of judges in a year to the higher judiciary, if done properly, would require at least a thousand candidates to be considered and comparatively evaluated over multidimensional criteria in a fair and rational manner which would require a full-time body, with a large secretariat. The job cannot be done by an ex officio body of judges and the law minister, who are extremely busy persons.
  • There also needs to be some transparency in the selection to prevent arbitrariness or nepotism.

It is only such an independent full-time body that can be expected to select judges in a fair and rational manner.

What should be the criteria for selection of judges?

  • Minimum transparency would require that the criteria for selection of judges be made known, the comparative evaluation of candidates also be made known, and names of shortlisted/selected candidates announced before appointment, so that those who have relevant information about the candidate can send it to the appointing authority.
  • Basic criteria to judge the competence of a candidate should include integrity, competence, judicial temperament, common sense and sensitivity towards the problems of the common man, among others.
  • A system modelled on the British Judicial Appointments Commission, which follows a method to evaluate candidates based on predetermined and set criteria, is well worth considering.
  • The members of the selection authority could be retired judges or even laypersons and should be selected by a broad-based selection committee in which the government and the judiciary play a role, but not a dominant one.


  • Appointments to the higher judiciary are too serious a business to be left to people who do not have any time and who function without any system or transparency.
  • It is imperative that a system for selection of judges be put in place and a full-time independent body be constituted to ensure that only those persons who are in tune with the egalitarian constitutional philosophy, and who have some sensitivity and understanding about the common people of the country are appointed.
  • The road to securing judicial accountability is long and hard, but proper accountability for such a powerful and vital organ like the Indian judiciary is essential for the survival of the rule of law and democracy in this country.
  • The time has come for the people of the country, who are the real stakeholders in an honestly functioning judiciary, to assert themselves and demand for such a body to be appointed and this scuffle over judicial appointments to be laid to rest.
[Ref: The Hindu]


GS (M) Paper-2: “Welfare schemes for vulnerable sections of the population by the Centre and States and the performance of these schemes; mechanisms, laws, institutions and bodies constituted for the protection and betterment of these vulnerable sections”

Striking a chord with workers


The Government is seeking the consent of the Cabinet on the two Codes — Code on industrial relations (CIR) and on wages.


The need for business needs to be matched with ensuring workers’ welfare. Towards this, certain principles and suggestions based on the ILO instruments largely can help.

ILO and its Instruments:

  • International Labour Organisation(ILO) is the UN special agency dealing with labour issues.
  • The Organisation has adopted an impressive array of Conventions Formalising informality is one of the measures to promote ILO’s Decent Work agenda.
  • The ILO Instruments are theset of standards in the form of many conventions including some related to vocational training, teachers, child labour and Indigenous peoples’ right to education formulated by the ILO.

NSSO data:

  • A large number of workers (77.1%) do not have written job contract in the labour market and close to 70% do not enjoy social security.

Key suggestions for workers’ welfare:

  • The Government must take workers into confidence while making any regulations on industrial relations and wages.
  • As the government is keen to ease regulations, it must trust the ability of the trade unions to govern themselves and provide basic rules for ensuring functional efficiency of them.
  • In line with ILO Conventions on FoA & CB, the government should ensure complete independence of trade unions including leaving the choice of leaders to workers and aid collective bargaining by providing for a mechanism for choice of negotiating agent.
  • Collective bargaining agreements must be set on par in terms of legality and applicability.
  • The principal objective of the Industrial Disputes Act (ID Act) must be to promote industrial peace and industrial democracy through a combination of methods wherein bi-partism and voluntary arbitration holds place of primacy.
  • Compulsory adjudication should be used more as a last resort for collective disputes and primarily for individual disputes as a first resort without wasting time in conciliation.
[Ref: Business Line]


Environment & Ecology

GS (M) Paper-3 “Conservation, environmental pollution and degradation”

The climate after Paris


  1. Gandhi famously said,

“The world has enough for everybody’s need, but not for everybody’s greed.”

It was most appropriate that on birth anniversary of Gandhi, India announced its ratification of a global treaty signed in Paris last December.


Key facts:

  • India became the 62nd country to ratify, behind the US and China, who jointly ratified it in Hangzhou, exactly a month ago. These 62 countries including India are responsible for almost 52% of Green House Gases (GHG) emissions.
  • The Paris Agreement on climate change will enter into force one month after 55 countries that account for 55% of global GHG emissions ratify the agreement.

Climate change and Conferences- Milestones:

  • The international political response to climate change began at the Rio Earth Summit in 1992, where the ‘Rio Convention’ included the adoption of the UN Framework on Climate Change (UNFCCC).
  • This convention set out a framework for action aimed at stabilising atmospheric concentrations of greenhouse gases (GHGs).
  • The UNFCCC which entered into force on 21 March 1994, now has a 195 parties.
  • The main objective of the annual Conference of Parties (COP) is to review the Convention’s implementation.
  • The first COP took place in Berlin in 1995 and significant meetings since then have included COP3 where the Kyoto Protocol was adopted.
  • COP11 where the Montreal Action Plan was produced,
  • COP15 in Copenhagen where an agreement to success Kyoto Protocol was unfortunately not realised
  • COP17 in Durban where the Green Climate Fund was created.
  • Incidentally, the US had never ratified the Kyoto Protocol, the earlier landmark global treaty with similar goals as the Paris treaty.

COP21 (2015 Paris Climate Conference):

  • In 2015, COP21 (2015 Paris Climate Conference), after 20 years of UN negotiations, aimed to achieve a legally binding and universal agreement on climate, with the aim of keeping global warming below 2°C.
  • The Paris treaty, among other things, promises funding of $100 billion from developed countries to help developing countries switch to greener technologies.
  • The US under President Barack Obama took a leadership position on climate change. It is also at the forefront in trying to forge a global consensus around this issue, including cooperation in technology and financing.

India and Paris treaty:

As India now embarks on meeting its commitments made in the Paris treaty, the following four points may be noted.

  • India is the third-largest emitter of greenhouse gases in the world. The earth’s atmosphere does not care from where a carbon dioxide molecule is emitted. Historic sins of the advanced industrialized countries cannot be offset by future sins of developing countries like India and China.
  • India has astutely promised to reduce emission intensity of gross domestic product, i.e. per unit of GDP by around 35% from 2005 levels by 2030.
  • Every new investment in the economy, whether in power, buildings or factories is about 30% more energy efficient, thanks to new regulatory norms and to the adoption of new technology. Thus, without energy efficiency norms, India’s aggregate carbon emissions would have risen by around 7% per year, instead will grow at only 4.5% or less. Thanks should be given to Perform-Achieve-Trade (PAT) and the Renewable Purchase Obligation (RPO) regime for this.
  • India’s National Action Plan on Climate Change was formulated back in 2008, and consists of eight missions. These missions included targets for solar energy, energy efficiency, water-use efficiency, afforestation and so on. So, signing on to Paris was a logical continuation of that ambition.

Recent Government Initiatives:

  • Prime Minister Narendra Modi enhanced the renewable energy capacity target to an astonishing 175 gigawatts by 2022, which include 100 GW of solar.
  • The current record indicates that the solar target may be achieved ahead of schedule with a run-rate of around 700,000 LEDs being sold daily.
  • Solar-energy cost is now on a par with coal-based energy. While renewables will contribute 50% to our Paris goals, another 15-20% will come from transportation. This involves switching bulk freight movement from road to rail, and extensive use of coastal and inland waterways.

Need to look on Regulatory mechanisms and other frameworks:

  • The government needs to intervene and prop up this market and ensure liquidity and reasonable prices until it becomes self-sustaining.
  • Large renewable energy projects also suffer from risks like inadequate grid connectivity, non-evacuation of their power, or dishonouring of power purchase agreements. All these need attentions.
  • Need to adopt a carbon-pricing framework such as the one planned in China, first country to introduce a national carbon pricing and trading market.
  • We must recognize that with the coal cess, RPO and PAT, there is already an implicit price on carbon.

Paris fulfilment will not happen without discoms’ compliance:

  • The electricity distribution companies (discoms) are under financial stress owing to past debts and accumulated losses. Hence, they are prominent RPO defaulters, although the Ujwal Discom Assurance Yojana (UDAY) scheme nudges them to comply with RPO.


  • India is an early champion of environmentalism.
  • Being a large and fast growing economy gives it an additional responsibility, especially for climate change actions.
  • Thankfully, the road after Paris is not only desirable and achievable, but will also improve the investment climate in the country.
[Ref: LIveMint]


Bilateral & International Relations

GS (M) Paper-2: “Bilateral, regional and global groupings and agreements involving India and/or affecting India’s interests”

Clinching the N-deal with Japan


Prime Ministers Narendra Modi and Shinzo Abe have announced at the end of the last year that negotiations for a bilateral civil nuclear agreement had been successfully concluded.

With the finalizing of the Indo-Japanese nuclear agreement, India will be able to access a new generation of nuclear reactors, over 1000 MW and hi-tech safety features.


Key facts:

  • India has already completed agreements for civil nuclear cooperation with 11 countries so far, including the U.S., Russia, Australia, Canada and South Korea.

Why nuclear agreement with Japan is good for India?

  • Japan is the only country to have been the victim of a nuclear attack, and its decision to sign an agreement with India, a country that has not signed the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), would be a first of its case. However, Japan’s support to the deal so far is therefore an indication of the importance it accords to relations with India.
  • For India, the civil nuclear agreement with Japan is especially important for the message of trust it would convey to Nuclear Suppliers Group members in a year the country hopes to have its admission accepted.
  • India and Japan share many multilateral platforms, including membership of the G-4 group that is knocking at the UN Security Council’s door for reform. In this scenario, Japan’s support at the NSG has been particularly marked.
  • Japanese nuclear energy technology and safety parameters are widely considered to be cutting-edge, and many critical parts needed for Indian reactors are made by Japanese manufacturers.
  • Although India has even considered trying to manufacture them locally, there won’t be alternatives to Japan for several years.
  • Even the U.S. civil nuclear deal, that is yet to be actualised, is contingent on the deal with Japan, given that the current discussions for six reactors in Andhra Pradesh are with Westinghouse, which is owned by the Japanese company Toshiba.
  • In other areas, like nuclear fuel fabrication and breeder technology the Japanese are the best or at the least very close to being so.

Why the deal has taken so long to negotiate?


  • The main sticking point has been India’s refusal to sign the NPT, as it considers the treaty unfair to the developing world.
  • On the other side, the Japan has been insisting on a “nullification” clause that the agreement would cease as soon as India tests.

India’s Commitment for N-deal, despite non signatory to NPT:

  • India’s commitment for N-deal can be seen in its self-declared moratorium on Nuclear testing.

Japan Perspective:

  • Reservations in Japan against nuclear energy have hardened after the Fukushima accident.
  • Particularly post-Fukushima, Japanese manufacturers will also be expected to be more generous with India on the liability issue, given their own experience with the enormous cost of cleaning up.

Way ahead:

  • India is keen on ensuring that in the haste to seal the deal by the time Prime Minister Narendra Modi visits Japan this winter.
[Ref: The Hindu]


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