Editorials/Opinions Analysis For UPSC 17 February 2022
Contents:
- A case for a more federal judiciary
- Signs of peace
A case for a more federal judiciary
Context:
The existing imbalance between the Supreme Court and the High Court needs to be addressed to preserve the Federal character of the Indian Constitution.
Relevance:
GS-II: Judiciary
Dimensions of the Article:
- The Concept of Federalism
- Federal Judicial System
- Equality of Power between Supreme Court and High Court
- Imbalance in the Federal structure of the judiciary
- Centralization of Judiciary
- Intervention by Supreme Courts
- Parallel Hierarchies of Judiciary
- Way Forward
The Concept of Federalism:
- Federalism is system of government in which each of the separate States have approximately equal political rights and are generally non-dependent on the Union.
- It is at the middle of unitarism which has a supreme centre, to which the States are subordinate, and confederalism wherein the States are supreme, and are merely coordinated by a weak centre.
- A.V. Dicey, the foremost constitutional lawyer of his day, wrote, “The essential characteristic of federalism is the distribution of limited executive, legislative and judicial authority among bodies which are coordinate with and independent of each other”.
- India is a Union of States and the Indian Constitution is federal in nature.
- The Supreme Court of India has held that the federalist nature of our country is part of the basic structure of the Constitution.
Federal Judicial System:
- A robust federal Judiciary is an integral requirement of a federal state.
- The Federal Judicial system in India comprises of the Supreme Court and the High Court.
- It plays a significant role in interpreting the Constitution, adjudicating upon the rights of the federal units and the central unit, and between the citizen and these units.
- The Supreme Court was created under the Constitution, and is a relatively new court. On the other hand, some of the High Courts in our country have been in existence even before the Supreme court came was established.
- Dr. B.R. Ambedkar stated in the Constituent Assembly: “The Indian Federation though a dual polity has no dual judiciary at all. The High Courts and the Supreme Court form one single integrated judiciary having jurisdiction and providing remedies in all cases arising under the constitutional law, the civil law or the criminal law.”
Equality of Power between Supreme Court and High Court:
- The Indian Constitution envisaged the equality of power of High Court judges and Supreme Court judges, with a High Court judge not being a subordinate of a Supreme Court judge.
- The Supreme Court has, on many occasions, reiterated the position that the Supreme Court is superior to the High Court only in the appellate sense.
- Therefore, the theoretical position has always been that High Court judges and Supreme Court judges are equals.
- To achieve a constitutional structure dreamt of by B.R. Ambedkar, there is a need for a delicate balance between the Supreme Court and the High Courts
Imbalance in the Federal structure of the judiciary:
- This balance existed from Independence onwards, until the 1990s.
- There has been a gradual shift of this in favour of the Supreme Court.
- The need for this balance was underscored during the Emergency, when the High Courts stood out as beacons of freedom, even as the Supreme Court failed in this duty.
- What are the causes of imbalance?
- Collegium System:
- The Supreme Court has the power to appoint (or delay the appointment) judges and chief justices to the High Courts and the Supreme Court.
- This Collegium also has the power to transfer chief justices from one High Court to another.
- The practical impact of this in the power dynamic between a High Court judge and a Supreme Court judge
- Direct Appeals to Supreme Court: Successive governments have passed laws that create parallel judicial systems of courts and tribunals which provide for direct appeals to the Supreme Court, bypassing the High Courts.
- Liberal Supreme Court: The Supreme Court has been liberal in entertaining cases pertaining to trifling matters.
- Collegium System:
Centralization of Judiciary:
- In recent year, there is a trend emerging in favour of a centralisation of the judiciary.
- However, a greater the degree of centralisation of the judiciary can lead to weakening of the federal structure.
- Research data from U.S: An empirical research recently conducted in the United States shows that the U.S. Supreme Court is far more likely to strike down a state statute as unconstitutional than a federal statute.
- It concludes that judicial review by a centralised judiciary tends toward unitarism (the opposite of federalism)
- As observed by the legal researcher, Ilya Somin,- “Courts face much weaker constraints when they strike down state legislation, especially state laws that are disapproved of by national political majorities… The federal government and sympathetic state governments elsewhere in the country may even support such judicial intervention.”
- Research Data from Nigeria: The research conducted in Nigeria (Federal country) has shown that the Supreme Court favours the jurisdiction of the central government over the State units.
- It concluded that the Supreme Court has favoured interpretations which support the rights of the centre over the States.
Intervention by Supreme Courts:
- An aggressively interventionist Supreme Court leads many to approach it directly as a panacea for all ills befalling the nation.
- Example: In 2018, some individuals from Delhi directly filed a petition in the Supreme Court to curtail Deepavali celebrations. The court entertained the petition and ruled that Deepavali could be celebrated for only one or two hours in the evening. This led to an uproar because people in South India celebrate Deepavali in the morning.
- Earlier, in another example, the Supreme Court had spent days deciding the height of the dahi handi during Gokulashtami celebrations.
- All these shows the interference of Supreme court in deciding matters of local importance, having no constitutional ramifications
- The Court itself observed recently, “Frivolous matters are making the institution dysfunctional… These matters waste important time of the court, which could have been spent on serious matters, pan-India matters.”
- Every time the Supreme Court entertains an appeal against a High Court decision, it second guesses the High Court. It sends out the message to the litigant: ‘It does not matter that the High Court ruled against you, you can take one more chance with this appeal.’
- Every time the Supreme Court entertains a public interest litigation on some matter which could just as effectively have been dealt with by the High Court, what the litigant hears is: ‘You do not need to approach the High Court, you can directly file your claim here, and you will not only get your hearing, you will get publicity too.’
Parallel Hierarchies of Judiciary:
- The parallel hierarchies of courts and tribunals have been created by successive Governments in which the High Court has no role to play and the Supreme Court directly acts as an appellate court.
- Examples include the Competition Commission, the company law tribunals, or the consumer courts.
- Laws have been drafted such that the High Court has no role to play and the Supreme Court directly acts as an appellate court.
- It can be seen as weakening of the authority of the High Courts or the possibility of a tendency towards subservience or apathy of the judges of the High Courts.
Way Forward:
- It is often seen that all central units have a natural tendency to aggrandise power to themselves from the state units, believing that centralisation enables them to discharge their duties more effectively in relation to the entire state.
- But in reality, the weakening of the state units sets off a weakening of the entire body of the state, which gradually leads to an irreversible decay.
- It is thus important for the Supreme Court to itself recognises the importance of self-abnegation and restores the federal balance by re-empowering the High Courts.
- This is essential for larger interest of the Nation.
-Source: The Hindu
Signs of peace
Context:
Russia has recently announced that it is pulling back some troops from Ukraine’s borders. This is a significant move that can bring in peace in the region.
Relevance:
GS-II: Bilateral Groupings & Agreements, Effect of Policies & Politics of Countries on India’s Interests
Dimensions of the Article:
- Background
- What led to the tensions?
- A Diplomatic breakthrough
- Way Forward
Background:
- The complex issue is rooted in Russia’s security concerns and NATO’s expansionary open-door policy.
- What are Russia’s concerns?
- It does not want neighbours Georgia and Ukraine to be members of NATO.
- It wants NATO (especially the U.S) to roll back its military presence and drills from Eastern Europe and the Black Sea.
- It wants the Ukraine crisis — the civil conflict between Kiev and the Russia-backed separatists in Donbas — to be resolved through the Minsk process.
- The U.S has already said that the U.S. does not have any plan to deploy offensive weapons or permanent combat troops to Ukraine and it is open to reduce its military presence in eastern Europe on a reciprocal basis.
- France has already taken steps to revive the Minsk II deal to address Ukraine’s internal crisis.
What led to the tensions?
- The Massive mobilization of troops by Russia on the three flanks of Ukraine, which included combat aircraft, warships and S400 missile defence systems, had raised fears of war.
- Besides this, recently U.S has warned of the “very distinct possibility” of a Russian invasion of Ukraine in the next few days.
- U.S has also made its decision to shut the American embassy in Kiev.
- All these escalated the tensions in the region.
A Diplomatic breakthrough:
- It can be seen as tactics followed by Russia to build military pressure around Ukraine to gain diplomatic leverage in talks with the West.
- Recently, European leaders from Hungary, Germany and France visited Russia.
- Significance of the talks:
- The diplomatic interventions by Mr. Macron, former French President called for respecting Russian security concerns and sought to revive the Minsk agreement on Ukraine’s civil strife.
- The Chancellor of Germany, Olaf Scholz said that Ukraine’s entry into NATO was “not on the agenda right now”, further eased the situation.
- Their talks with Russian President Vladimir Putin opened a diplomatic path towards de-escalation.
- The talks comprehensively addressed Russia’s security concerns and the West’s fears of Russian aggression.
- Russia has always maintained that it had no plans to attack Ukraine.
Way Forward:
- Russia’s decision to pull back troops suggests that it sees potential in these proposals. However, it is too early to say that the crisis is over.
- These proposals should lead towards framing, solid agreements to find a lasting solution to Europe’s most dangerous security crisis.
- Thus, it is time for the West and Russia to take forward these progress through Diplomacy.
-Source: The Hindu
