Editorials/Opinions Analysis For UPSC 03 March 2023

Contents:

1. Judicial Activism and Independence of the Election Commission
2. Water Credits

Judicial Activism and Independence of the Election Commission

Context:

The recent verdict by the Supreme Court of India will ensure a more independent Election Commission

Relevance:

GS Paper 2: Structure, organization and functioning of the Executive and the Judiciary Ministries and Departments of the Government; pressure groups and formal/informal associations and their role in the Polity.

Dimensions of the Article:

1. About the Election Commission of India
2. Structure of the Election Commission
3. Present system of Appointment to the Election Commission
4. Recommendations in the past for collegium to appoint EC and CEC
5. Anoop Baranwal v. Union of India Case
6. What are the issues with certain Constitutional provision?
7. Need to fulfil the Constitutional Aspirations
8. Revival of the era of Judicial activism
9. Way forward
10. Conclusion

About the Election Commission of India

• The Election Commission of India is an autonomous constitutional authority responsible for administering Union and State election processes in India.
• The body administers elections to the Lok Sabha, Rajya Sabha, and State Legislative Assemblies in India, and the offices of the President and Vice President in the country.
• Part XV of the Indian constitution deals with elections, and establishes a commission for these matters.
• The Election Commission was established in accordance with the Constitution on 25th January 1950.
• Article 324 to 329 of the constitution deals with powers, function, tenure, eligibility, etc., of the commission and the member.

Structure of the Election Commission

• Originally the commission had only one election commissioner but after the Election Commissioner Amendment Act 1989, it has been made a multi-member body.
• The commission consists of one Chief Election Commissioner and two Election Commissioners.
• The secretariat of the commission is located in New Delhi.
• At the state level election commission is helped by Chief Electoral Officer who is an IAS rank Officer.
• The President appoints Chief Election Commissioner and Election Commissioners.
• They have a fixed tenure of six years, or up to the age of 65 years, whichever is earlier.
• They enjoy the same status and receive salary and perks as available to Judges of the Supreme Court of India.
• The Chief Election Commissioner can be removed from office only through a process of removal similar to that of a Supreme Court judge for by Parliament.

Present system of Appointment to the Election Commission

• The Constitution of India does NOT prescribe any procedure for appointment of the CEC and EC. However, the Parliament has the power to regulate the terms of conditions of service and tenure of ECs according to Article 324(5) in the Constitution.
• According to this provision in Article 324 – to determine the conditions of service of the CEC and other ECs and to provide for the procedure for transaction of business by the ECI – Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 was passed.
• The appointment of CEC and EC is dealt with in the Transaction of Business rules 1961 – according to which the President shall appoint the CEC and EC based on the recommendations made by the Prime Minister. (Therefore, it is the executive power of the President to appoint CEC and ECs.)
• There is also the Article 324(2), which states that the President shall, with aid and advice of the Council of Ministers, appoint CEC and ECs, till Parliament enacts a law fixing the criteria for selection, conditions of service and tenure.

Recommendations in the past for collegium to appoint EC and CEC

• According to the plea filed in the SC, recommendations to have a neutral collegium to fill up vacancies in the Election Commission have been given by several expert committees, commissions from 1975.
• The recommendation to have a neutral collegium to appoint EC and CEC was also part of the Law Commission’s 255th report in March 2015.
• In 2009, the Second Administrative Reforms Commission in its fourth report suggested a collegium system for appointment CEC and ECs.
• In 1990, the Dinesh Goswami Committee recommended effective consultation with neutral authorities like the Chief Justice of India and the Leader of the Opposition for the appointment in the Election Commission.
• In 1975, the Justice Tarkunde Committee recommended that the members of the Election Commission should be appointed by the President on the advice of a Committee consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India.

Anoop Baranwal v. Union of India Case:

• The Article 324(2) of the Constitution was the bone of contention between the petitioners.
  • Article 324(2): The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.
• The petition noted that .though the appointment was to be made by the President, it should be done based on a law to be promulgated.
• Yet, no law was enacted by Parliament in this regard.
• Taking advantage of this scenario, the dispensation at the Centre chooses the CEC and ECs, based on its discretion.
• Therefore, the petitioners pleaded for an neutral, independent body to appoint the CEC and the ECs to ensure functional autonomy for the panel.

What are the issues with certain Constitutional provision?

• According to the proviso to Article 324(5), a special protection against removal is given to the CEC while not extending the said immunity to the other ECs.
• Article 324(5): Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine:
  • Provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court
    • Hence the only way to remove a CEC is to get him impeached by Parliament which is difficult, but not impossible.
  • The conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment:
    • This immunity granted to the CEC loses its purpose when the selection is vitiated by arbitrariness or favouritism.
  • Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.
• Hence, in order to ensure the Security of tenure, the other ECs might be more susceptible to the executive. This was the apprehension placed before the Supreme Court.

Need to fulfil the Constitutional Aspirations:

• The vacuum left by the Constituent Assembly in the Article 342 is essentially a democratic space left to the future Parliament. The elected Parliament was supposed to legislate on this issue with a greater element of democratic legitimacy. Hence it is a constitutional aspiration rather than a vacuum.
• As a result, the executive enjoys the benefit of appointing people as chosen by it as the CEC and ECs.
• This led to perceptions of bias of the Commission in favour of the ruling party.

Revival of the era of Judicial activism:

• The Supreme Court of India (SC) is one of the most powerful centre of political power in the country. It deals with almost every political issue in the country.
• Need for functional autonomy of the Election Commissioners:
  • The functional autonomy of the CEC and the EC has a direct link with the process by which they are selected.
  • In this context, in the recent judgement in Anoop Baranwal v. Union of India Case, the court stated that, “a vulnerable Election Commission would result in an insidious situation and detract from its efficient functioning.”
  • The judgment recognises the fine distinction between conventional democracy and constitutional democracy. In the former, the majority alone matters. In the latter, it is the Constitution that matters.
• Through this judgement, the Supreme Court exhibited Judicial activisim after a long time.
• This revival of judicial activism is well supported by legal reasoning and binding precedents.
• The allegation of judicial excess only reflects the Centre’s conventional stand based on Montesquieu’s principles of separation of powers.

Way forward:

• There is a need to set up an independent committee consisting of the prime minister, leader of the opposition in the Lok Sabha or the leader of the largest party in opposition and the Chief Justice of India for selecting the CEC.
• This will be a great leap towards a sustainable democracy.

Conclusion:

• Democracies across the world are under threat for a variety of reasons and let this judgement by the top Court could be a pill for certain ailment in our electoral democracy.
• Hence, by correcting an indefensible method of selection of the commission, the Court has significantly added to the sanctity of the process.

-Source: The Indian Express

Water Credits

Context:

Water credits can help improve water quality standards.

Relevance:

GS Paper-3: Conservation, environmental pollution and degradation

Dimensions of the Article:

1. India’s Water resource-under pressure
2. What are Water Credits?
3. Concerns related to water trading in India
4. Benefits of water trading
5. Way forward
6. Conclusion

India’s Water resource-under pressure:

• India’s water resources are under tremendous pressure.
• There exists wide temporal and spatial variations in the distribution of water.
  • For example, India receives more than 80 per cent of the rainfall during four months of the year.  
  • Also, there is unequal spatial distribution of water.
  • The Barak and Brahmaputra basins have a per capita water availability that is more than that of the Ganga basin.
• India’s per capita water availability has touched the waterstressed benchmark, and is likely to reach the waterscarce scenario by 2050.

What are Water Credits?

• Water credits deal with the transaction between water deficit and water surplus entities within a basin.
• It represents a fixed quantum of water that is conserved or generated.
• This concept is almost similar to the concept of carbon credits.
• However, unlike carbon credits, the spatial limits for transactions are confined to hydrological boundaries — that is, river basin or watershed.

Concerns related to water trading in India:

• NITI Aayog is contemplating draft recommendations on future trading of water and tradable water licences.
• Lack of Awareness:
  • Experts have raised some concerns about the awareness among water users and water suppliers on water trading.
  • The market competition among sellers is reduced due to the lack of awareness about the water credit concept.
  • Few anticipate that that India could face opposition if water is made a tradable commodity.
• Market domination by the rich:
  • Another significant flaw in the system is that the market is dominated by a small number of rich institutions or sellers.
  • This can make the rich sellers can control the market by buying credits from the poor, and continue to misuse the shared water resources.

Benefits of water trading:

• Water trading paves way for water quality standards.
• This can be ensured through effective implementation and stringent regulatory standards.
• This makes water “quality” a tradable commodity.
• Under such as system, a source pollutant (industry) having controlled pollutant levels “sells credits” to another source pollutant (industry), which can use these credits to enhance their level of treatment in order to comply with the regulatory requirements.
• This further promotes growth in the recycle and reuse markets through the utilisation of heavy metals/trace organics released in the water from both the industrial and agricultural sectors.
• The credit system can be used to highlight the water quality merits and strengthen economic relations both at a global as well as regional level.
• Also, such a system can substantially reduce the burden of the government that releases funds towards mitigation as well as post-disaster events such as floods and droughts.
• Another benefit of such a system is that the markets can even ‘insure’ irrigated and rain dependent agriculture against droughts by locking in water prices

Way forward:

There is a need for a multiplayer approach:

For example, if we consider the water credit system between municipalities and industries, industries can buy water credits from water-rich municipalities that are fund crunched to finance large-scale floodwater harvesting or wastewater treatment projects, which aid in conserving water.

Lessons from Global successes:

• India should learn from global water trading successes.
• Example: Australia laid a roadmap for water trading and ensured water regulation by setting up related authorities.
• Another notable success story comes from Chicago, where participation is seen from actual users such as farmers and municipalities and financial investors.

Regulatory body: A regulatory body must be in place to facilitate and successfully maintain free market conditions.

Conclusion:

There has been no strong dialogue on the implementation of a water credit system, so far. India needs to aggressively alter and adopt practices to expand finance opportunities within the water sector.