Polity

All (4049)Current Affairs (4038)Mains Practice (126)Mains PYQs by Subjects (40)

AI-Powered Surveillance in India

Context: India is at the forefront of adopting AI in surveillance. Technological integration is a welcome move to modernise law enforcement, however, in the absence of suitable legal frameworks it might intersect with constitutional rights of citizens, particularly the right to privacy.

Relevance of the Topic: Mains: AI in surveillance- Challenges, Opportunities, Way Forward

Use of AI in Governance

In 2019, India announced its ambition to build the world’s largest facial recognition system for policing.
- Artificial Intelligence (AI)-powered surveillance systems have been deployed across railway stations and the Delhi Police is preparing to use AI for crime patrols.
India plans to launch 50 AI-powered satellites to further intensify India’s surveillance infrastructure.

Challenges:

While technological advancements in law enforcement offer potential, they raise significant legal, constitutional, and ethical concerns.

Privacy Concerns:
- Right to Privacy: Recognised as a fundamental right under Article 21 in K.S. Puttaswamy vs Union of India (2017).
- AI-enabled “dragnet surveillance” often involves indiscriminate data collection, infringing on citizens’ informational privacy.
- Lack of proportional safeguards against AI misuse raises risks of mass surveillance and data breaches.
Gaps in Legal Frameworks:
- Digital Personal Data Protection Act (DPDPA), 2023:
  - Grants the government unchecked power to process personal data without the need for consent, when processing data for medical treatment during an epidemic, data related to employment etc.
  - Mandates citizens not to suppress any material information when submitting personal data. This provision (while intended to ensure data accuracy) could lead to punitive measures for something as simple as an outdated address or technical error in data collection systems.
  - Criticised for skewing power towards state surveillance over individual rights.
- Absence of specific legislation for AI regulation, despite growing deployment of AI-powered systems.
Unregulated AI Usage:
- India’s AI surveillance lacks clear guidelines on data collection, processing, storage, and usage and mechanisms to prevent abuse or discrimination.
- Example: Deployment of facial recognition technologies in Delhi and Hyderabad without public risk assessments or legislative debate.
Risk of Overreach:
- International experiences, such as the U.S. Foreign Intelligence Surveillance Act (FISA), shows that surveillance laws can lead to overreach.
- Expanding India’s AI surveillance infrastructure without sufficient safeguards risks violating constitutional principles of proportionality and legality.

Indian Context:

India’s surveillance capabilities are growing rapidly with plans for 50 AI-powered satellites and integration of AI in public systems.
Cases like Telangana Police data breach highlight the misuse of personal data collected through welfare schemes (E.g., “Samagra Vedika”).
Current frameworks fail to ensure transparency, judicial oversight, or accountability in data collection and AI deployment.

International Context:

European Union: EU’s Artificial Intelligence Act follows a risk-based approach:
- Categorises AI applications as unacceptable, high, transparency, or minimal risk.
- Prohibits real-time biometric identification for law enforcement, except under strict conditions.
United States: Surveillance laws like FISA offer lessons on the potential for overreach and the need for stringent safeguards.

Impact on Civil Liberties:

AI surveillance, without sufficient safeguards, might risk:

Privacy violations: Indiscriminate data collection threatens informational privacy.
Discrimination: Biased AI systems can exacerbate social inequalities.
Data breaches: Weak safeguards increase vulnerability to cyberattacks.
Loss of trust: Citizens may lose confidence in public institutions.

Way Forward:

Regulatory Frameworks:
- Enact comprehensive legislation for AI governance.
- Categorize AI applications based on risk levels, with specific restrictions on high-risk activities.
Transparent Data Practices:
- Mandate public disclosure of: What data is collected, for what purpose, how it is stored, timelines for data retention and deletion.
- Narrow exemptions for consent-based data collection, with judicial oversight.
Independent Oversight:
- Create independent bodies to oversee AI deployment in public systems.
- Establish mechanisms for judicial review of surveillance activities.
International Best Practices:
- Adopt risk-based regulatory approaches like that of the EU.
Citizen Awareness:
- Educate citizens on their privacy rights under the Constitution and relevant laws.
- Build grievance redressal mechanisms for AI-related violations.
Strengthen the DPDPA:
- Narrow government exceptions.
- Ensure accountability in state surveillance.

Conclusion: India stands at a critical juncture in deploying AI-powered surveillance. While technological advancements promise enhanced governance and law enforcement, they must be balanced against constitutional rights. A proactive regulatory approach that is aligned with international best practices can ensure that AI serves the public interest without compromising civil liberties.

Indian Constitution being Modern and Uniquely Indian

Context: The Indian constitution is unique in its ‘content’ and ‘spirit’. The Prime Minister Narendra Modi has described the Indian Constitution as an 'open and futuristic' document that is youth-centric and has a modern vision. The arguments given below attempt to answer the ‘Indianness’ or the ‘uniqueness’ of the Indian constitution.

Relevance of the topic:

Prelims: MCQs based on constitutional features.

Mains: Analytical question scope based on uniqueness of Indian constitution.

How were various western constitutional elements rearranged and modified to suit Indian context?

Secularism: The secularism of India is a bit different from the western conception of divorce between state and religion.
- Indian secularism is more of the “principled distance” drawn from the Indian ancient tradition of “Sarva Dharma Sambhava” that balances the uniqueness of Indian religious society and western polity ideals simultaneously.
- Notable related judgements include, Sabarimala Case judgement, Shirur Mutt Case 1954.
Socialist feature: Unlike the Western conception of Socialism i.e., more tinged towards the concept of Communist ideology, the Indian version is slightly different.
- The version in the Indian constitution is more tinged towards the 'Karuna’ or the compassion towards the downtrodden.
- Socialism in India is not only restrained to economic aspects, but extends to the social realm too. Ban on untouchability and caste system's rejection are based upon the active compassion promoted by the socio-religious reforms in India in 19th Century.
Federalism: The federalism concept in India is more tinged towards the “union of states”, acknowledging the diverse culture of each state. Hence, crafting the “state-nation” rather than European style “nation-state” reflecting the old tradition of deep respect for cultural and social diversity making the Indian constitution unique in itself. Notable judgements related to federalism S.R. Bommai Case (1994).

How are traditions, philosophies and movements of India reflected in various constitutional provisions?

Philosophical underpinning of Indian Constitution:
- Dharma and Rule of law being part of the concept of rights, duties and justice. Example: Article 14 ensuring Equality before law ensures Dharma.
- Sarvodaya through Antyodaya as the concept of Social justice by Gandhi is reflected in Directive Principles of State Policy (DPSP).
- Ahimsa and Vasudheva Kutumbakam are reflected under Article 51 by ensuring peaceful and cooperative international relations.
Traditions and Cultural Heritage:
- Unity in diversity under Article 25-28 ensuring religious freedom and Article 29-30 ensuring linguistic and cultural rights of minorities.
- Tolerance and Secularism as ensured by Preamble.
Influences of Socio-political movements:
- Social reform movements under RajaRam Mohan Roy, Mahatma Phule, and B.R. Ambedkar shaped the constitutional ideals. Example Article 17 restricting untouchability.
- Freedom movements promoting democratic ideals being reflected in Article 326 as Universal Adult Suffrage.
- Gandhian movement promoting Swaraj and decentralisation of power reflected in Article 40 and 73rd Constitutional Amendment Act actualising Panchayati Raj dream.
- Workers’ and peasant movements advocating labour rights are reflected in Article 39 ensuring equal pay and Article 43 promoting living wages for workers.

Conclusion: The author concludes the article with an example of ‘bread pakora’ , where an alien white bread is turned into an authentic Indian dish. In the similar fashion the Constitution of India is the testament of Indian genius that transformed the various western conceptions of polity, law and society to a pleasant version that suits India.

Constitutionalism in India

Context: Ongoing winter session of parliament has seen speeches from various political parties highlighting the importance of constitutionalism and constitution as a living document. In this context, let us understand these concepts.

Relevance of the Topic: Essay and Mains: Key aspects of Constitutionalism in India.

What is Constitutionalism?

Constitutionalism in India refers to the principle that government authority is derived from and limited by a constitution, which serves as the supreme law of the land.
It ensures that power is exercised within a framework that protects individual rights and liberties, thereby preventing arbitrary governance.

According to Douglas Greenberg, “Constitutionalism is a commitment to limitations on ordinary political power, it revolves around a political process which overlaps with democracy in seeking to balance state power and individual and collective rights, it draws on cultural and historical contexts from which it emanates, and it resides in public consciousness.”

Constitutionalism can be of Positive and Negative nature:

Negative Constitutionalism: Views constitutions as a way to limit the state's political power. This model treats the arbitrary powers of state as a threat to liberty of citizens and views constitutionalism as a way to mitigate that threat.
Positive Constitutionalism: Views constitutions as a way to make the state's political power effective. This model acknowledges the need for constitutional structures to guard against abuses of power, but also focuses on creating an effective and competent institution that works for the good of its people (welfare state).
- According to Professor M.P. Singh if a constitution ignores accommodation and respect for diversity and plurality in a society then it fails to meet the requirement of constitutionalism.

Furthermore, merely having a written Constitution is no guarantee for Constitutionalism, even Nazi Germany had a constitution but that does not mean that it adhered to the philosophy of Constitutionalism be it a negative or positive aspect of it.

Supreme Court of India has made the following observations in this context:

SR Chaudhari vs State of Punjab: “Mere existence of a constitution, by itself, does not ensure constitutionalism. What is important is the political traditions of the people and its spirit and determination to work out its constitutional salvation through the chosen system of its political organisation.”
- Unless primacy to democratic policies and individual rights is not given, Constitutionalism cannot survive.
- Subtle assaults to individual rights, especially freedom of Speech and Expression and Privacy, such as sedition laws, surveillance laws, undermine Constitutionalism.
RC Poudyal vs UOI: “Mere existence of a constitution, by itself, does not ensure constitutionalism or a constitutional culture. It is the political maturity and traditions of people that give meaning to a constitution which otherwise would merely embody the political hopes and ideals”.

Key aspects of Constitutionalism in India:

State by Constitution: Indian constitution delineates the character and structure of the Indian State. The powers and extent of the Indian State are limited by the Constitution. E.g., Separation of power, federal structure etc.
Rule of Law: Constitutionalism emphasises the rule of law, meaning that all actions taken by the state must be grounded in law. This principle is fundamental to maintaining order and justice within society.
Fundamental Rights: The rights act as the safeguard against arbitrary state actions. In IR Coelho vs state of TN, S.C. reaffirmed that Fundamental Rights form part of Basic Structure of Indian Constitution.
Written Constitution: Written Constitution provides for a limited government with powers divided among the three organs of the government.
Separation of Power: In NCT of Delhi VS UOI, The court observed: Constitutionalism lies in the distribution of power among state organs, ensuring reciprocal controls and cooperation.
Judicial Review: The Supreme Court upholds constitutionalism through its power of judicial review. It has the authority to invalidate laws and executive actions that violate basic structure, thereby protecting citizens' rights.
Democratic Framework: Democratic framework which includes regular elections and equal participation in governance also contributes to constitutionalism. This ensures that the government remains accountable to the people.

Indian Constitution as a Living Document:

Almost like a living being, the Indian Constitution keeps responding to the circumstances arising from time to time, thus showing flexibility, adaptability, and accommodation towards social changes.

Role of Judiciary: Judiciary has played an important role in not only saving the essence of the Constitution but also in its evolution.
- Basic structure Doctrine: Propounded in the famous Kesavananda Bharati Case, 1973 it restricts the Parliament from altering the essential features of the Constitution or what the Supreme Court termed as the Basic Structure. Basic structure includes various Constitutional ideals such as secularism, rule of law, federalism etc.

Judicial Activism: The courts have brought transformative changes through a broad reading of our Constitution. For example, the Supreme Court in its landmark judgment in Justice Puttaswamy case recognised Right to Privacy as a part of Fundamental Rights under Article 21.

One Candidate Multiple Constituency

Context: After the recent recommendations of the Ram Nath Kovind Panel for Simultaneous Elections, there is a debate around various other aspects of electoral reforms. One of the issues is candidates contesting from multiple constituencies popularly called as One Candidate Multiple Constituency (OCMC).

Relevance of the Topic: Mains: One Candidate Multiple Constituency: Benefits & Challenges.

Background:

The Constitution of India provides for regular elections every five years to the legislative assembly and the lower house of Parliament.
The Constitution, other than providing for the Election Commission of India (ECI), has empowered Parliament to regulate the manner of conducting the elections.
The Representation of the People Act 1951 deals with the issue of ‘contesting from multiple constituencies.’
- Until 1996, there was no limit on the number of constituencies a candidate could contest. This resulted in candidates contesting from multiple constituencies. This necessitated by-elections frequently.

Advantages of Contesting Multiple Constituencies (OCMC):

Safety net for candidates: Contesting from multiple constituencies allows candidates to secure at least one win in tightly contested areas. This strategy is particularly beneficial in elections where outcomes are uncertain and elections are closely fought, providing a backup option if they lose in one constituency.
Leadership Continuity: OCMC can ensure the continuity of leadership within a party in case important leaders lose elections. This helps maintain party stability and leadership presence.
Demonstrating popularity and influence: By contesting from multiple seats, a candidate can showcase their popularity across different regions, enhancing their image as a leader with wide support. This also helps parties project strength and attract more voters by demonstrating their ability to contest effectively in various areas.
Strategic Vote Division: Contesting from multiple constituencies can strategically divide the opposition's votes, increasing the chances of winning in each constituency. This tactic can strengthen a party’s overall electoral performance by creating a ripple effect that may benefit candidates in surrounding areas.
Political Message: Leaders contesting from various constituencies can amplify their political message and visibility, leveraging their popularity to engage with a broader electorate. This approach can help reinforce a party's narrative and mobilise support more effectively.

Flexibility in Leadership Transitions:
- OCMC provides flexibility for political parties during leadership transitions or when a leader is unable to secure a seat. For example, Pushkar Singh Dhami, the CM of Uttarakhand, faced a similar situation where he contested multiple seats to ensure his party's leadership remained intact despite electoral challenges.

Challenges Involved:

Financial burden on Taxpayers: The administrative costs for Lok Sabha elections are borne by the central government, while state elections are funded by state governments. The estimated cost for the 2024 general election is ₹6,931 crore.
- If a candidate wins from two constituencies, the additional cost for holding a by-election can reach around ₹130 crore per instance.
Favoring ruling parties: By-elections generally favor ruling parties due to their ability to mobilize resources and provide patronage. This creates an uneven playing field against opposition parties, undermining democratic fairness.
Repeated financial strain on defeated candidates: Candidates who lose must bear the financial burden of campaigning again in by-elections if their opponent vacates a seat they won. This can strain party resources and discourage competitive politics.
Undermining democratic principles: The practice of contesting multiple seats can prioritize candidates' interests over voters' needs, contradicting the democratic ideal that elections should serve the public.
Against freedom of speech and expression: OCMC goes against the fundamental right to freedom of speech and expression of citizens. A petition filed in 2023 (Ashwini Kumar Upadhyay vs Union of India) argued that when people elect a representative, they trust that person to be their voice. Contesting multiple constituencies, winning them, and vacating one for a by-election violates Article 19(1)(a) of the Constitution.
Voter confusion: The practice leads to voter confusion and apathy, as seen in Wayanad when Rahul Gandhi vacated his seat after winning in 2024; voter turnout dropped significantly in subsequent by-elections compared to general elections.
International examples: While countries like Pakistan, Bangladesh continue OCMC, this practice has been phased out in mature democracies like the UK and other European democracies to ensure democratic integrity.

Since the challenges and misuse of OCMC outweighs the benefits, following reforms are recommended:

Amendment of Section 33(7) of RPA 1951: A recommendation has been made to amend this section of the Representation of the People Act (RPA) 1951 to prohibit candidates from contesting multiple constituencies for the same office. The Election Commission of India (ECI) has consistently recommended this ban since 2004, the law commission in its 255^th report has also recommended the same.
Recover cost for by-elections: Implementing a system where the candidate who vacates a seat after winning must bear the full cost of conducting a by-election could discourage simultaneous contests.
Delay in by-elections: Proposing that by-elections be held after a year instead of within six months could allow voters more time to make informed decisions and provide defeated candidates with an opportunity to prepare for future contests.

Thus, if “one person, one vote” is the core democratic principle for voters, it is time to enforce “one candidate, one constituency” for candidates to implement the next step in electoral reforms.

Urban Local Government Elections

Context: The ongoing discourse around ‘one nation one election’ can serve as the right opportunity to streamline the Elections in Urban Local Government structures (ULGs) which face the problem of neglect and delays in elections.

Relevance of the topic:

Prelims: Constitutional Provisions regarding Urban Local Government structures.

Mains: Issues associated with ULGs.

Importance of timely elections in ULGs:

India has over 4,800 ULGs that oversee nearly 40% of the population, which is estimated to cross 50% by 2050.
Well administered cities are the backbone of the country’s economy, contributing over 60% to India’s GDP.
Ensuring regular elections to install democratically-elected governments in our cities is not just constitutionally mandated but also important for economic and social development.

Constitutional Provisions regarding elections to ULGs:

The system of Urban Government was constitutionalised through the 74^th Constitutional Amendment Act of 1992.

Article 243ZA: Article 243ZA of the Constitution of India provided that the superintendence, direction, and control of electoral rolls, and the conduct of all elections to the municipalities should be vested in the State Election Commission.
- The State Election Commission consists of a state election commissioner to be appointed by the governor.
- The state legislature may make provision with respect to all matters relating to elections to the municipalities.
Article 243R: Article 243R provided that all the seats in the municipality should be filled by persons chosen by direct election from the territorial constituency in the municipal area, known as "Ward".

Issues associated with ULGs:

Despite the constitutional mandate, there are various issues:

Uncertainty and Delays in Elections: Elections for ULGs are frequently delayed, with over 60% of ULGs in India experiencing such delays, violating the constitutional mandate to hold elections every five years. This undermines the principle of decentralization and limits citizen representation and accountability.

Delay in Council Formation: Even after elections are held, it is seen that there are significant delays in constituting councils. For example, in Karnataka, councils took an average of 11 months to form post-election results, leaving elected representatives unable to address local development needs effectively.

Disempowerment of State Election Commissions (SECs): The SECs, responsible for conducting ULG elections, are often disempowered. Only 4 out of 15 states have granted them authority for ward delimitation. The state government inaction in ward delimitation leads to delay in elections or legal disputes over reservations (highlighted in CAG report).

Political influence and discretion: There is a concern regarding the undue influence of state governments on election schedules. Government officials have the discretion to delay elections, which compromises the integrity of the electoral process as highlighted in the Supreme Court ruling in Suresh Mahajan v. State of Madhya Pradesh (2022).

Regional disparities in election timeliness: The extent of delays varies across regions. For example, while some municipalities like those in Chandigarh faced minimal delays, others such as Bengaluru and Mumbai have been awaiting elections for over one year after their previous councils' terms expired.

Challenges with women's reservation: In Nagaland, the government's attempt to hold ULG elections with a 33% reservation for women faced backlash from tribal organizations opposed to this mandate. Thus, there is a broader struggle between constitutional requirements and local customs.

Impact on citizen participation: Delays in conducting timely elections negatively affect public participation and trust in local governance. A survey indicated that about 61% of ULGs experienced delayed council elections, which leads to disillusionment among citizens regarding their local governance.

Past efforts to resolve the issue of elections to local bodies:

The 79th report of the Parliament Standing Committee on Law and Justice: Presented report on the ‘Feasibility of Simultaneous Elections,’ submitted in 2015, while advocating simultaneous elections to the Lok Sabha and State Assemblies, was silent on elections to ULGs.
NITI Aayog discussion paper (2017): on ‘Analysis of Simultaneous Elections’, kept ULGs out of its purview, arguing that the third-tier institutions are State subjects and that the sheer number of such institutions across the country makes it “impractical, and possibly impossible, to synchronise elections”.
- Similar reasoning is put forward in the 2018 draft report of the Law Commission of India on simultaneous elections.
High Level Committee (2024): High Level Committee constituted by the Government of India to provide a road map for implementation of simultaneous elections, deliberated on local body elections and recommended synchronising them within 100 days of simultaneous elections to the Lok Sabha and State Assemblies.

Way Forward:

Empowering State Election Commissions (SECs): Grant SECs the authority to manage ward delimitation independently, ensuring that state governments do not interfere in the electoral process. This would help prevent delays caused by political factors.
Timely Elections: Establish a legal framework that mandates ULG elections to be conducted within six months of the term expiration of existing councils, ensuring adherence to democratic principles and timely representation.

The HLC report, which was accepted by the Union government in September 2024, has touched upon the procedure of elections to local governments which can be synchronized within 100 days of simultaneous elections to the Lok Sabha and State Assemblies after taking consultation with stakeholders.

China Plus One Opportunity

Context: The NITI Aayog in its inaugural quarterly report ‘Trade Watch’ has highlighted that India’s has seen limited success in seizing ‘China plus one’ opportunity. Recently, the Chairman of the 16th Finance Commission has pointed out that India’s internal policies have acted as a significant constraint, hindering its ability to fully leverage the opportunity.

Relevance of the Topic: Mains: - Challenges in India hindering its ability to fully leverage China-plus-one opportunity.

What is the China Plus One Strategy?

China Plus One is the business strategy to avoid investing only in China and diversify business or channel investments into manufacturing in other developing economies such as India, Thailand, Cambodia, Vietnam, Malaysia etc.

Shift from China:

For the last 20 years, Western companies have heavily invested in China, drawn in by its low production costs, and vast domestic consumer market.
However the companies are looking to diversify due to-
- US-China Trade disputes: Escalating trade disputes and reciprocal trade restrictions have disrupted global supply chains.
- Higher Tariffs and Trade restrictions: The cost of doing business in China is increasing due to higher tariffs on Chinese imports and export restrictions on essential resources.
- COVID-19 Pandemic: The pandemic exposed the supply-chain vulnerabilities of over-reliance on one country and the need to find alternative supply chains.
- Emerging competitors: ASEAN and other developing countries are presenting attractive alternatives to China owing to their lower tariffs, simpler tax systems, cheaper labor, and proactive free trade agreements (FTAs).

Why is India lagging behind Competitors?

In contrast to Vietnam, Thailand, Cambodia, and Malaysia, India has had very modest success utilising the China Plus One strategy. The reasons include-

Internal Policy challenges:
- Policy uncertainty: Poor ease of doing business and greater amount of policy uncertainty deters foreign investors.
- Cumbersome land acquisition procedure and unavailability of cheap land.
- Delays in receiving permits, licenses, and approvals due to the involvement of multiple government agencies.
- Complex tax laws and limited Free Trade Agreements (FTAs) with major trade blocs.
Infrastructure challenges: Deficient infrastructure including transportation, power supply shortages impacts the reliability of India’s manufacturing sector/prospects.
Fragmented Labour laws: Variation of labour laws across different states and delayed implementation of New Labour Codes.
Higher Logistics Cost: India’s logistics cost is 14% of India’s GDP, which is high when compared to developed nations (where it ranges 8-10%). This reduces overall competitiveness.
Low R&D and Innovation: India spends hardly around 0.7% of its GDP on R&D, quite lower in comparison to the USA (2.1%), China (2.8%), Israel (4.3%) etc.

Skilled Human Resources: Despite having almost 53% of the population in the working-age group, there is a lack of availability of skilled human resources, adept in complex manufacturing processes.
Trade Facilitation Issues: In India, Trade facilitation as measured by "Trading Across Borders" is quite poor. Complex documentation processes and high export costs hinder trade facilitation.

Way Forward:

Improve Trade Competitiveness by improving access to factors of production (Land, Labour, Capital), Reduce Logistics costs (14% of GDP) to global benchmarks (8% of GDP), improving Ease of Doing Business by streamlining regulations etc.
Fast-track development of infrastructure projects under the National Infrastructure Pipeline (NIP). Leverage PM Gati Shakti Master Plan to integrate infrastructure planning and bring down logistics cost.
Focus on large-scale skills development, leveraging Skill India Program and Pradhan Mantri Kaushal Vikas Yojana.
Expedite signing of Free Trade agreements with key markets such as the European Union, United Kingdom & ASEAN.
Protect domestic markets from the import of cheap foreign goods through (a) strong and effective technical regulations (b) trade safeguards such as Anti-dumping duties.
Enhance digital governance and increase public and private spending on R&D to at least 1.5% of GDP by 2030.

Hence, to fully leverage the China Plus One strategy, India should improve the ease of doing business, enhance manufacturing capabilities and actively engage in global trade agreements.

Chief Justices need Longer Tenure

Context: Recently, Chief Justices were appointed to eight High Courts across India. However, all of them, with the exception of one, will have very short tenures which is becoming a persistent problem that calls for urgent remedial action since it affects the institutional effectiveness of the judiciary. In this context, let us understand the process of appointment, tenure and functions of Chief Justice and judges of High Courts in India.

Relevance of the Topic: Prelims- Key facts about appointment of Judges of High Court.

Appointment of Judges:

Article 217 of Constitution of India deals with appointment of Judges of High Court.
- The judges of a High Court are appointed by the President. The Chief Justice is appointed by the President after consultation with the Chief Justice of India and the governor of the state concerned.
- For appointment of other judges, the chief justice of the concerned high court is also consulted. In case of a common high court for two or more states, the governors of all the states concerned are consulted by the President.
In the Second Judges case (1993), the Supreme Court ruled that no appointment of a judge of the high court can be made, unless it is in conformity with the opinion of the chief justice of India.
In the Third Judges case (1998), the Supreme Court opined that in case of the appointment of high court judges, the chief justice of India should consult a collegium of two senior-most judges of the Supreme Court. Thus, the sole opinion of the chief justice of India alone does not constitute the 'consultation' process.
The 99th Constitutional Amendment Act of 2014 and the National Judicial Appointments Commission Act of 2014 have replaced the Collegium System of appointing judges to the Supreme Court and High Courts with a new body called the National Judicial Appointments Commission (NJAC).
However, in 2015, the Supreme Court declared both the 99th Constitutional Amendment as well as the NJAC Act as unconstitutional and void. Consequently, the earlier collegium system became operative again. This verdict was delivered by the Supreme Court in the Fourth Judges case (2015). The Court opined that the new system (i.e., NJAC) would affect the independence of the judiciary.

Tenure of Judges:

The Constitution has not fixed the tenure of a judge of a high court. However, it makes the following four provisions in this regard:

He/she holds office until he/she attains the age of 62 years. Any questions regarding his/ her age are to be decided by the President after consultation with the chief justice of India and the decision of the President is final.
He/she can resign his/her office by writing to the President.
He/she can be removed from his/her office by the President on the recommendation of the Parliament.
He/she vacates his/her office when he/she is appointed as a judge of the Supreme Court or when he/ she is transferred to another high court.

Role of the Chief Justice of a High Court:

The Chief Justice is the senior-most sitting judge of a High Court in a State. Besides performing judicial functions, he also exercises administrative powers, as provided under Article 229 of the Constitution of India.

Administrative Responsibilities: Oversees the overall administration of the High Court. And constitutes various committees for smooth functioning.
Judicial Appointments: Plays a key role in recommending names for judgeship.
Financial Oversight: Tracks and ensures the financial health of the institution.
Staff Welfare and discipline: Attends to the welfare and needs of High Court staff, takes disciplinary action against erring trial court judges and staff.
- Defends such disciplinary actions before appropriate authorities if challenged.
Public Engagements: Accepts invitations to and participates in seminars, symposia, and functions beyond legal matters. Engages with Bar Councils and advocate associations across the State.
Legal Education and aid: Addresses issues related to legal education in the State. The Chief Justice is also usually the patron in chief of the State's Legal service Authority.
Judicial Role: Discharges duties as the highest judicial authority in the State.

Thus, keeping in mind the diverse role and functions carried out by the Chief Justice of High Courts, it is suggested that they are provided with either a longer tenure or a fixed tenure when elevated to the position of Chief Justice after undertaking deliberations from all stakeholders.

Code of Conduct Judges Need to Follow

Context: The recent comments made by Allahabad High Court judge, Justice Shekhar Kumar Yadav, against the Muslim community at an event organised by the legal cell of the Vishwa Hindu Parishad in the High Court premises, has drawn public flak. In this context, let us discuss the code of conduct for the judiciary.

Relevance of the Topic Mains: Issues related to judicial accountability, reforms, and ethical governance.

Constitutional position of Judges in the context of Judicial Independence and Discipline:

Security of Tenure: The only way to remove a judge is through the impeachment by Parliament, as stated in Article 124(4) of the Constitution.
Article 215 declares the High Court to be a court of record with contempt power which the judges could invoke.
Paragraph VIII of the Third Schedule of the Constitution mandates a judge-designate to swear to perform duties without fear or favor, affection, or ill-will.
Judges are expected to conduct themselves in a manner consistent with the dignity of the judicial office.
Further, the courtroom reflects the image of the presiding judge, thus judicial demeanor becomes important to uphold the stature of office.

Source of Powers of Judiciary:

Judiciary draws its power from two fountains, public acceptance of the authority of the judiciary and the integrity of the judiciary.
Over the time, the judiciary has codified the best conventions of judicial conduct in and out of court. The ‘Restatement of Values of Judicial Life’ is the primary code of ethics governing judicial behaviour adopted by the Supreme Court on May 7, 1997.

Need for Integrity and Code of Conduct in Judiciary:

Rule of Law: To uphold the rule of law which is part of basic structure doctrine.
Institutional integrity: To dispel the notion of favoritism, bias or interference and increased institutional responsibility.
Independence and accountability walk hand in hand in a democratic setup.
Increase public confidence: Necessary to increase public confidence in the public institutions.
Increase Trust: Upholding trust in the institution of judiciary, independence must not become an alibi for arbitrariness.

Concerns related to Judicial Transparency and Accountability:

Collegium system: Appointment, promotion, and transfer of judges of higher judiciary is carried out by the collegium system with lack of transparency.
Allocation of cases: Chief Justice allocates cases to different benches of the Court and picks judges to form Constitution Benches, which decide substantial questions of law. Since CJI has the full control over this, there are apprehensions that judges with similar school of thought are appointed in a bench to get a favourable judgement.
Power to list: The Chief also enjoys the power to list cases. It means that if CJI wish to do so, they may never list a Constitution Bench case at all in their tenure.
Corruption: Many cases in recent times have come to the notice regarding corruption in the Judiciary.
Passing remarks prejudicial to certain communities: Present case of Justice Shekhar Yadav.

These issues have led to overall decline in the trust with respect to the judiciary.

Steps taken so far to arrest the decline of Judicial Standards:

RTI: Office of CJI has been brought under the ambit of Right To Information Act.
Live streaming: Live streaming of Cases has been proactively taken up by Supreme Court and High Courts.
National Judicial Data Grid: Disclosure of pending cases with help of National Judicial Data Grid.
Declaration of Assets: Supreme Court judges declare their property to the CJI.
The Restatement of Values of Judicial Life which lays down certain judicial standards and principles to be observed and followed by the Judges of the Supreme Court and High Courts.
In-house procedure: An in-house procedure for taking suitable remedial action against judges who do not follow universally accepted values of Judicial life including those included in the Restatement of Values of Judicial life.
Bangalore principle of Judicial Conduct: A judge must “reaffirm the people’s faith in the impartiality of the judiciary”. Principles underscore that “any act of a judge of the Supreme Court or a High Court, whether in official or personal capacity, which erodes the credibility of this perception has to be avoided”.
- Furthermore, a judge must always conduct himself or herself in such a manner as to preserve the dignity of the judicial office and the impartiality and independence of the judiciary”. More importantly, the charter requires a judge to be “aware of and understand” the diversity in society and treat all equally.

Further measures to be taken for Increased Accountability:

Code of Conduct for Judges: As recommended by 2^nd ARC, there should be a formal and comprehensive code of conduct for judiciary which is legally enforceable.
Amendment of the Contempt of Court Act with specific provisions:
- Contempt cases to be tried by an independent commission instead of courts.
- Removal of the words 'scandalizing the court or lowering the authority of the court' from the definition of criminal contempt.
Imposition of stringent punishment for the misuse of contempt laws, especially in cases involving false and malicious allegations against honest judges.
Establishment of a two-level judicial discipline model:
- First level: Disciplinary system capable of reprimanding, fining, or suspending judges for misdemeanors, along with limited immunity measures.
- Second level: Removal system for judges engaged in serious misconduct, including corruption.
Enhanced transparency in court proceedings: Live streaming of cases argued in High courts and Supreme Courts.
Some administrative mechanism to keep check on the probity of higher judiciary as the removal process is stringent under Judges (Inquiry) Act 1968.
Establishment of an independent judicial Lokpal with the authority to:
- Receive complaints against judges.
- Initiate action to ensure accountability.
- Operate independently from both the judiciary and the government.
Greater Internal Regulation: Establishing a National Judicial Oversight Committee.
- To implement prompt disciplinary actions at the first instance of misconduct.
- Establish a National Judicial Oversight Committee through parliamentary intervention.
- The committee should develop independent procedures to scrutinize complaints and conduct investigations.
- Ensure that the committee's composition should not compromise judicial independence.
Enacting a Revised Judicial Standards and Accountability Bill:
- Introduce a new Judicial Standards and Accountability bill inspired by the lapsed Judicial Standards and Accountability Bill 2010.

Removal process of a Judge of High Court

A judge of a High Court can be removed from his/her office by an order of the President. The President can issue the removal order only after an address by the Parliament has been presented to him/her in the same session for such removal.

The address must be supported by a special majority of each House of Parliament (i.e., a majority of the total membership of that House and majority of not less than two-'thirds of the members of that House present and voting).

The grounds for removal are two-proved misbehaviour or incapacity. Thus, a judge of a high court can be removed in the same manner and on the same grounds as a judge of the Supreme Court.

The Judges Enquiry Act (1968) regulates the procedure relating to the removal of a judge of a High Court by the process of impeachment:

A removal motion signed by 100 members (in the case of Lok Sabha) or 50 members (in the case of Rajya Sabha) is to be given to the Speaker/Chairman.
The Speaker/Chairman may admit the motion or refuse to admit it.
If it is admitted, then the Speaker/chairman is to constitute a three-member committee to investigate the charges.
The committee should consist of:
- the chief justice or a judge of the Supreme Court
- chief justice of a High Court
- a distinguished Jurist.
If the committee finds the judge to be guilty of misbehaviour or suffering from an incapacity, the House can take up the consideration of the motion.
After the motion is passed by each House of Parliament by a special majority, an address is presented to the President for removal of the judge.
Finally, the President passes an order removing the judge.

The procedure for the impeachment of a judge of a High Court is the same as that for a judge of the Supreme Court.
No judge of a High Court has been impeached so far.

President's power to issue Pardon in the US and in India

Context: Recently, the United States President Joe Biden has issued “A Full and Unconditional Pardon” for his son Hunter Biden, who was awaiting sentences in two cases related to tax evasion and lying about drug use while buying a handgun.

The President is now considering a series of ‘pre-emptive’ pardons for allies, including the Vice-President, former Chief Medical Officer etc. The idea is that a pardon would shield allies from arrest and prosecution when President-elect Donald Trump assumes office.

Relevance of the topic:

Prelims: Article 72: Pardoning power of the President of India.

Mains: Comparison of President's power to issue Pardon in the US and in India.

The US President’s power to Pardon:

In the U.S. Constitution, under Article II Section 2(1) the President can grant pardon except in cases of impeachment.
The U.S. President has absolute power of pardon for federal criminal offences. Such a pardon may be issued prior to the start of a legal case as well as prior to or after a conviction for a crime.
Origin: The power to pardon has roots in English history and can be traced back to the reign of King Ine of Wessex in the 7th century.
The Office of the Pardon Attorney under the Department of Justice (DoJ) assists the President by processing thousands of petitions for pardons received annually.
- The process involves an initial review and an FBI background check before the recommendation is made to the President.
- The recommendation is non-binding on the President who makes the final decision.

Limits of the US President’s power to pardon:

Under Article 2 of the US Constitution:
- The President can only pardon “Offences against the United States”, which refers to criminal offences under federal law (applicable in multiple states and investigated by federal agencies such as the FBI). The President cannot pardon an action that is an offence under the law of a specific state.
- The President cannot grant pardons in cases of impeachment.
Implied limitation under Article 2: A crime must first be committed for a President to then pardon it. However, once a federal crime is committed, the power to pardon could be exercised at any stage including before charges have been filed, during their pendency, or after conviction and judgment.

The Indian President’s power to pardon:

The President of India under Article 72 of the Constitution is empowered “to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence:
- in all cases where the punishment or sentence is by a Court Martial
- in all cases where the punishment or sentence is for an offence against any law. relating to a matter to which the executive power of the Union extends.
- in all cases where the sentence is a sentence of death.
The Supreme Court has weighed in on the President’s power to grant pardons.
- In Maru Ram v. Union of India (1980):
  - The SC held that the President cannot grant a pardon on her own and must act upon the advice of the Centre.
  - It also held that the court would only hear a challenge to the exercise of power under Article 72 in the ‘rare’ situation where the decision is wholly irrelevant, irrational, discriminatory or mala fide.

Also Read: Pardoning powers of President of India

Key Differences between Pardoning powers of the Indian President and the US President:

S.No.	Aspects	Pardoning Powers of the US President	Pardoning Powers of the Indian President
1.	Authority	Absolute power to pardon federal crimes.	Acts on the advice of the Council of Ministers.
2.	Jurisdiction	Only pardon crimes committed under Federal law; excludes impeachment and state crime.	Wide-jurisdiction: For any offence against any Union laws, Military laws (Court-Martial) and death sentences.
3.	Pre-emptive Pardon	The U.S. President can issue pardons for past crimes that have not been prosecuted.	Limited to post-conviction or specific cases like death penalties.
4.	Judicial Review	No Judicial Review of the President’s decision	Limited review by the Supreme Court for irrational, discriminatory or mala fide actions.

Removal of Rajya Sabha Chairman

Context: Nearly 60 Opposition MPs of the INDIA bloc have submitted a notice at the office of the Rajya Sabha Secretary-General, P.C. Mody, seeking the removal of the Chairperson of the Upper House, Vice-President Jagdeep Dhankhar.

Relevance: Prelims- Key facts about the office, role, duties, removal process of the Vice President.

About the office of Vice President:

The Vice-President occupies the second highest office in the country. He/she is accorded a rank next to the President in the official warrant of precedence.
His office is modeled on the lines after the American Vice-President.

Qualifications:

To be eligible for election as Vice-President, a person should fulfil the following qualifications:

He/she should be a citizen of India.
He/ she should have completed 35 years of age.
He/ she should be qualified for election as a member of the Rajya Sabha.
He/she should not hold any office of profit under the Union government or any state government or any local authority or any other public authority.

It is to be noted that a sitting President or Vice-President of the Union, the governor of any state and a minister for the Union or any state is not deemed to hold any office of profit and hence qualified for being a candidate for Vice-President.

Further, the nomination of a candidate for election to the office of Vice-President must be subscribed by at least 20 electors as proposers and 20 electors as seconders. Every candidate has to make a security deposit of Rs 15,000 in the Reserve Bank of India.

Powers and Functions:

The functions of the Vice-President are two-fold:
- He/she acts as the ex-officio Chairman of Rajya Sabha. In this capacity, his/her powers and functions are similar to those of the Speaker of Lok Sabha. In this respect, he/she resembles the American vice-president, who also acts as the Chairman of the Senate-the Upper House of the American legislature.
- He/ she acts as President when a vacancy occurs in the office of the President due to his/her resignation, impeachment, death or otherwise. He/ she can act as President only for a maximum period of six months within which a new President has to be elected. Further, when the sitting President is unable to discharge his/her functions due to absence, illness or any other cause, the Vice-President discharges his/ her functions until the President resumes his/her office.
While acting as President or discharging the functions of President, the Vice-President does not perform the duties of the office of the chairman of Rajya Sabha. During this period, those duties are performed by the Deputy Chairman of Rajya Sabha. The Constitution has not fixed any emoluments for the Vice-President in that capacity. He/ she draws his/ her regular salary in his/ her capacity as the ex-officio Chairman of the Rajya Sabha. In 2018, the Parliament increased the salary of the Chairman of the Rajya Sabha from Rs. 1.25 lakh to Rs. 4 lakh per month.
In addition, he/she is entitled to daily allowance, free furnished residence, medical, travel and other facilities. During any period when the Vice-President acts as President or discharges the functions of the President, he/ she is not entitled to the salary or allowance payable to the Chairman of Rajya Sabha, but the salary and allowance of the President.

Removal of Vice-President

Article 67 of the Constitution prescribes terms of office of the Vice President.

Article 67:
- The Vice-President holds office for a term of five years from the date on which he/she enters upon his/ her office.
Article 67(a): He/ she can resign from his/her office at any time by addressing the resignation letter to the President.
- He/she can also be removed from the office before completion of his/ her term.
- A formal impeachment is not required for his/her removal.
Article 67(b): He/ she can be removed by a resolution passed by a majority of all the then members of the Rajya Sabha and agreed to by the Lok Sabha.
- This means that this resolution should be passed in the Rajya Sabha by an effective majority and in the Lok Sabha by a simple majority.
- Further, this resolution can be introduced only in the Rajya Sabha and not in the Lok Sabha.
- No such resolution can be moved unless at least 14 days' advance notice has been given. Notably, no ground has been mentioned in the Constitution for his/her removal.
The Vice-President can hold office beyond his/her term of five years until his/ her successor assumes charge. He/she is also eligible for reelection to that office. He/she may be elected for any number of terms.

Reservation must not be based on Religion: SC

Context: The Supreme Court of India has recently emphasised that reservations must not be granted solely on religion.

Relevance of the Topic: Prelims: Constitutional and Legal Framework for Reservations.

Background: The Calcutta High Court had concluded that religion was the “sole criterion for declaring certain castes among the Muslim community as OBC”. The judgment arose a debate around the issue and prompted a review on how reservations are determined.

Present Constitutional and Legal Framework:

Article 15(4): Enables the State to make special provisions for the advancement of any socially and educationally backward classes or for the Scheduled Castes and the Scheduled Tribes.
Article 16(4): Provides that the State can enact legislation for the reservation of posts in the government sector or jobs in favour of the backward classes of citizens, which the State considers to have not been adequately represented in the services of the State.
Indira Sawhney Judgment: The Supreme Court in Indira Sawhney v. The Union of India upheld the constitutionality of reservations for Other Backward Classes (OBScs) in public employment, capping the reservation at 50%. The court emphasised that identification of backwardness should be based on social and educational criteria rather than religion.

Previous rulings in this Context:

MR Balaji case (1962): The SC held that Muslims/Christians/Sikhs are not excluded for the purpose of conferring reservations under Article 15(4) or 16(4).
- The court further held that it is not unlikely that these communities can be socially backward, so even though caste is considered to be the relevant criteria for determining backwardness in Hindu community, it cannot be made the sole criteria.
Indira Sawhney case: The SC held that in certain states, Muslim communities as a whole can be identified as backwards (based on their social and educational conditions). (E.g., Karnataka, Kerala)
T Muralidhar Rao vs State of AP, 2004: The State while discharging its constitutional obligation cannot make any distinction between one group of citizens and others on the ground of religion, faith or belief.
B Archana Reddy vs State of AP (2005): HC struck down the ordinance for extending the benefits of reservation on the ground that the benefit could not be extended to the whole community without proper identification of social backwardness of Muslims by the Commission.
Telangana tried to pass 12% reservation for OBC Muslims based on G Sudhir Commission report. However, this was struck down, since it breached the 50% limit set by Indra Sawhney judgement (1992) and the Central Government denied its inclusion in the Ninth schedule.

reservation for muslim communities in India

Various Committees recommendations in this context:

Justice Rajinder Sachar Committee, 2006: The Muslim community was almost as backward as SCs and STs and more backward than non-Muslim OBCs.
Justice Ranganath Misra Committee, 2007: It suggested a 15% reservation for minorities, with 10% specifically for Muslims.
Executive Order, 2012: The GOI issued an order providing a 4.5% reservation for minorities within the existing 27% OBC quota.

The Supreme Court’s stand reinforces that social and educational backwardness must be the basis for reservations, not religious identity.

India needs Right to Disconnect

Context: Recently, Australia has announced “Right to Disconnect”; it allows employees to refuse to monitor, read, or respond to work-related communications outside of their scheduled working hours. Parliamentarian Shashi Tharoor has remarked that “inhumanity at the workplace must be legislated out of existence.” It is to be noted that India does not have specific laws recognising the right to disconnect from work.

Relevance of the Topic: Mains: Conceptual understanding of ‘Right to Disconnect’.

Issues and concerns regarding ‘Right to Disconnect’

A recent report by The Hindu reported that Indians in professional jobs, like auditing, Information Technology, and media, work more than 55 hours a week.
According to a study by ADP Research Institute, 49% of Indian workers said workplace stress negatively impacts their mental health.
It has been observed that employees physically leave the office, but they do not leave their work. They remain attached by a kind of electronic leash.

Constitutional and Legal Provisions in India:

Article 38 of the Constitution mandates that “the State shall strive to promote the welfare of the people”.
Article 39(e) of the Directive Principles of State Policy directs the state to direct its policy towards securing the strength and health of its workers.
Article 43 directs that the conditions of work must ensure a decent standard of life and full enjoyment of leisure and cultural opportunities.
Vishakha v State of Rajasthan (1997): The Supreme Court ruled that sexual harassment at the workplace violates fundamental rights, recognised the right to dignity at the workplace, and issued guidelines to ensure that there is a safe working environment for women and gender equality.
Praveen Pradhan v. State of Uttaranchal (2012): High Court of Uttarakhand held that “under the pretext of administrative control and discipline, a superior officer cannot be left to enjoy extreme liberty to make the intense humiliation and scolding inhumanly in front of all the subordinate staff members for a little lapse.”
Ravindra Kumar Dhariwal v. Union of India (2021): The Court read Article 14 to include ideas of inclusive equality to reasonably accommodate persons with disabilities, an employer must consider an employee’s individual differences and capabilities.

International Examples:

France: The Labour Chamber of the French Supreme Court ruled in 2001 that an employee is under no obligation to work from home or take home files and working tools.
Portugal: Portugal has a Right to Disconnect law, which makes it illegal for employers to contact employees outside working hours, except in emergencies.
Spain: Public workers and employees have the right to switch off devices in order to guarantee that, outside of legal or conventionally established working hours, their time off, leave and holidays are respected, in addition to their personal and family privacy, with the aim of promoting a good work-life balance”.
Australia: Australian Parliament passed the Fair Work Legislation Amendment, which gave employees the right to disconnect from work outside of working hours.
Ireland: Ireland has also recognised the right to disconnect for employees.

Suggestions and Way Forward:

Research by Harvard Business Review shows that working prolonged hours causes stress, coronary heart diseases, and impacts overall health. There is a widespread belief that overworked human beings bring in productivity, however research by the University of Oxford found a conclusive link between happiness (ensured by work life balance) and productivity.
Thus, a more nuanced approach, recognising the importance of hard work, ambition, and sustained productivity, while also ensuring a healthy and motivated workforce is needed.
- Employers can promote vacations, flexible working hours, promoting mental health and counselling, managerial restraint to respect personal time.
In 2018, MP Supriya Sule introduced a Private Member Bill in the Lok Sabha, delineating the right to disconnect from work after working hours. The bill included the provision of a penalty of 1% of the total remuneration of all employees to be paid by companies for noncompliance with its provisions; this bill can be brought back as a government bill to deal with this issue.