Is judicial majoritarianism justified?

Context

As the recent majority judgment of the Supreme Court on demonetisation comes under criticism, the minority judgment by J. Nagarathna is being hailed for its challenge to the RBI’s institutional acquiescence to the Central government.
This questions our blind acceptance of numerical majorities in judicial decision-making.

Judicial majoritarianism:

As opposed to standard matters heard by Division Benches consisting of two judges, numerical majorities are of particular importance to cases which involve a substantial interpretation of constitutional provisions.
In such cases, Constitutional Benches, consisting of five or more judges, are set up in consonance with Article 145(3) of the Constitution. Such Benches usually consist of five, seven, nine, 11 or even 13 judges. This is done to facilitate decision-making by ensuring numerical majorities in judicial outcomes.
The requirement for a majority consensus flows from Article 145(5) of the Constitution which states that no judgment in such cases can be delivered except with the concurrence of a majority of the judges but that judges are free to deliver dissenting judgments or opinions.

Problems inherent in Judicial majoritarianism:

As opposed to representatives of the people in legislatures who may act on hunches or popular perception, judges are experts of law and are aware of the arguments for and against the impugned matter.
Given the same, Jeremy Waldron questions why it is that the judges too have to resort to head counting in order to resolve disagreements amongst judges.
All judges on a particular Bench give their rulings on the same set of arguments and written submissions.
In light of the same, any differences in judicial decisions can be attributed to a difference in either the methodology adopted and the logic applied by the judges, or, as proffered by the legal realists such as Jerome Frank, upon their own ‘judicial hunches’ which may be an outcome of their subjective experiences, outlook, and biases.
In such circumstances, it is entirely possible that the majority may fall into either methodological fallacies and errors or be limited by their ‘judicial hunch’ respectively.

Meritorious dissents:

In such situations, a meritorious minority decision, irrespective of the impeccability of its reasoning, receives little weightage in terms of its outcomes. Our Constitutional history is replete with such meritorious dissents.
The dissenting opinion of Justice H.R. Khanna in A.D.M. Jabalpur v. Shivkant Shukla (1976) upholding the right to life and personal liberty even during situations of constitutional exceptionalism is a prime example.
Another example is the dissenting opinion of Justice Subba Rao in the Kharak Singh v. State of U.P. (1962) case upholding the right to privacy which received the judicial stamp of approval in the K.S. Puttaswamy v. UOI (2017) case.

Way Forward:

One solution could be to give more weight to the vote of senior judges who have more experience or to junior judges who may represent popular opinion better.
However, these alternatives can only be explored once the premises and rationales underlying head-counting in judicial decision-making are identified and questioned.
The absence of a critical discourse on judicial majoritarianism represents a significant gap in our knowledge of the functioning of the Supreme Court.
As pending Constitutional Bench matters are listed for hearing and judgments are reserved, it is crucial to reflect on the arguments of judicial majoritarianism and their potential impact.

No Bar on Contesting Two Seats in One Poll

Why in the News?

Recently, the Supreme Court has rejected a petition to bar candidates from contesting from more than one constituency in the general or assembly elections, calling it a matter of “parliamentary sovereignty” and “political democracy”.
The plea challenged the constitutionality of Section 33(7) of the Representation of Peoples Act, 1951, which allows a candidate to contest from a maximum of two constituencies.

What is the Ruling?

The court ruled that this matter falls within the legislative domain and is a matter of parliamentary sovereignty and political democracy.
It is parliament’s will that determines whether political democracy is furthered by granting such a choice.
Contesting from multiple seats can be due to multiple reasons and whether it furthers parliamentary democracy is something which is in the legislative domain.

What are the Provisions Related to Twin Candidature?

Section 33(7) of the RPA has led to waste of resources, conflicts of interest, paradoxical provisions, voter confusion, perception of corruption, and a threat to democracy.
The Election Commission has recommended amending Section 33(7) to allow one candidate to contest from only one seat and to impose a financial burden on candidates who win both seats.

What Issues Arise from Twin Candidature?

Waste of Resources: Campaigning and contesting in multiple constituencies can be a waste of Resources and Money, both for the candidate and the government. After sacrificing one of the Constituencies, a by-election is immediately triggered, which again increases the burden on Public Exchequer. For example, in 2014, after PM Narendra Modi won both Vadodara and Varanasi, he vacated his seat in Vadodara, forcing a by-election there.
Conflicts of Interest: Running in multiple constituencies can create conflicts of interest, as the candidate may not be able to devote equal time and attention to each of their constituencies.
Paradoxical Provisions: Section 33(7) of the RPA leads to a situation where it would be negated by another section of the same Act – specifically, Section 70. While 33(7) allows candidates to contest from two seats, Section 70 bars candidates from representing two constituencies in the Lok Sabha/state. Assembly.
Voter Confusion: Voters in different constituencies may be confused about which candidate is representing them, or which candidate they should vote for.
Perception of Corruption: Running in multiple constituencies can also raise questions about the candidate’s motivation and create the perception of corruption, as they may be seeking multiple seats in order to increase their chances of winning office.
Threat to Democracy: Twin candidature can be seen as a threat to democracy, as it can undermine the principle of fair and equal representation.

Way Forward:

The Election Commission recommended amending Section 33(7) so as to allow one candidate to contest from only one seat. It did so in 2004, 2010, 2016 and in 2018.
A system should be devised wherein if a candidate contested from two constituencies and won both, then he or she would bear the financial burden of conducting the subsequent by-election in one of the constituencies.
The amount would be Rs 5 lakh for a Vidhan Sabha election and Rs 10 lakh for a Lok Sabha election.

One person, one vote is the dictum that has been a founding principle of Indian democracy. Perhaps it is time to modify and expand that principle to “One person, one vote; one candidate, one constituency.

UPSC Civil Services Examination, Previous Year Questions (PYQs)

Prelims

Consider the following statements: (2017)

The Election Commission of India is a five-member body.
The Union Ministry of Home Affairs decides the election schedule for the conduct of both general elections and bye-elections.
Election Commission resolves the disputes relating to splits/mergers of recognised political parties.

Which of the statements given above is/are correct?

(a) 1 and 2 only

(b) 2 only

(d) 3 only

Mains

Discuss the role of the Election Commission of India in the light of the evolution of the Model Code of Conduct. (2022)

The Curious Case of the Disqualification

Context

Mr. Faizal was convicted by the Kavaratti sessions court for attempted murder, and sentenced to 10 years imprisonment.
Later on, the Lok Sabha announced that he was disqualified as an MP with effect from the date of conviction.
The Election Commission of India (ECI) fixed the date for by-election to that constituency. Mr. Faizal appealed to the Kerala High Court for a stay on his conviction and sentence, which the High Court suspended.
The High Court said that the consequence of not suspending the conviction is drastic not just for Mr. Faizal but also for the nation. The cost of a parliamentary election would have to be borne by the nation and developmental activities in Lakshadweep will also stop for a few weeks.
The elected candidate will have just 15 months to function till the end of the term of the current Lok Sabha.
Given these exceptional and irreversible consequences, it suspended his conviction until disposal of the appeal.

The specific provisions:

The provision for disqualification is given in Article 102 of the Constitution. It specifies that a person shall be disqualified for contesting elections and being a Member of Parliament under certain conditions. These include holding an office of profit, being of unsound mind or insolvent, or not being a citizen of India.
It also authorizes Parliament to make law determining conditions of disqualifications. There are analogous provisions for members of state legislatures.
The Representation of the People Act, 1951 provides that a person will be disqualified if convicted and sentenced to imprisonment for two years or more. The person is disqualified for the period of imprisonment and a further six years.
There is an exception for sitting members; they have been provided a period of three months from the date of conviction to appeal; the disqualification will not be applicable until the appeal is decided.

Differential treatment:

The differential treatment of candidates for elections and sitting members was challenged under Article 14 (right to equality). A Constitution Bench of the Supreme Court, in 2005 (K. Prabhakaran vs P. Jayarajan), decided that the consequences of disqualifying a contestant and a sitting member were different.
In the latter case, the strength of the party in the legislature would change, and could have an adverse impact if a government had a thin majority. It would also trigger a by-election. Therefore, it was reasonable to treat the two categories differently.
The Court also considered whether in case of a disqualified candidate who is later acquitted, the disqualification would be removed with retrospective effect.
It stated that this could not be done as this would require the results of the election to be canceled. Therefore, the removal of disqualification would be prospective and for future elections.

Lily Thomas case:

This issue was also discussed in the Lily Thomas judgment (2013). The judgment stated that a disqualified person may obtain a stay on his conviction, and cited an earlier 2007 judgment that the disqualification would be removed from the date of the stay order.

The Legal confusion:

The Lakshadweep seat was declared vacant but the ECI, after the stay order, announced deferring the by-election. The Lok Sabha has kept the seat vacant and has not yet reinstated the MP. The reason the High Court granted the stay was to avoid an expensive election.
The question is whether the removal of disqualification can be back dated as if it never happened and the election avoided. Or whether the disqualification is removed only from the date of the stay order, and, therefore, the vacated seat be filled only through a by-election.
This conundrum arises because the Lily Thomas judgment requires the seat to be vacated immediately upon disqualification whereas the Kerala High Court stay tries to ensure that the MP retains the seat until the appeal is decided.
The answer will also have implications for similar cases in the future.

Shinde group is the real Shiv Sena, says poll body

Context:

The Commission in exercise of its powers under Article 324 of the Constitution read with paras 15 and 18 of the symbols order 1968 orders that the party name Shiv Sena and the party symbol bow and arrow will be retained by the petitioner faction (Shinde).

Triple test procedure:

ECI followed the procedure laid down in a 1971 Supreme Court judgment, which says such cases must be decided on the basis of a triple test. ECI found that the conclusion of the first two benchmarks were inconclusive.
The first test — objectives of the party constitution — was deemed improper because the 2018 constitution of the Shiv Sena was found to be undemocratic and concentrated power in the hands of a few.
The second test — that of the majority in the organizational body of the party — was also not considered because the poll panel found that neither side provided accurate details of the composition of internal bodies, and no determinable or satisfactory findings could be ascertained.
Therefore, ECI relied on the third prong — the test of majority in the legislative wing. Here, the poll body found that 40 of the 55 members of legislative assembly backed the Shinde faction, which translated to 76% of the total votes polled by the unified party in the 2019 assembly elections.
Moreover, 13 of the 18 Lok Sabha members of the party backed Shinde, which translated to 73% of the total votes polled in the 2019 general elections.

Lack of Internal Democracy:

The EC order asked the Shinde faction to amend the 2018 constitution of the party in line with the 1951 Representation of the Peoples Act and conform to internal democracy.
The ECI order had strong words for the lack of internal democracy in the party and asked all parties to ensure that their constitutions reflected a democratic ethos.

Judges and the lure of ‘political’ jobs

Context:

Within a month of retiring from the Supreme Court of India, Justice S. Abdul Nazeer was appointed Governor of Andhra Pradesh.
In the tenure of the present government since 2014, he is the third Supreme Court judge who has received a high-profile political appointment soon after retirement, the other two being Justice P. Sathasivam (who was appointed Governor of Kerala), and Justice Ranjan P. Gogoi (who was appointed member of the Rajya Sabha).
These appointments are all signaling on the part of the government, letting the members of the higher judiciary know that they will be suitably rewarded if they issue favorable decisions.
Dangling such a proverbial carrot is akin to corrupting the judges, and encouraging a culture of sycophancy even, as we are seeing among some judges in the apex court. Worse, this also makes the public have less faith in the judiciary itself.

Chipping away at judiciary:

While a Governor’s position may seem largely ceremonial, it is in fact a squarely political appointment.
The larger objective, for any reasonable executive, should be to ensure the independence of the other arms of the governing mechanism, and that democratic values are preserved.
The government’s behavior is also hypocritical for it is deliberately paying no heed to its own manifesto articulated by its late leader, Arun Jaitley, that such post-retirement judicial appointments should be avoided.
The judiciary is no less culpable in this situation. Judges must recognise that handouts from the government, in the form of such political appointments, are not one-way: there is a giver and there is a receiver.
The Indian judiciary must distinguish between political favors and other postretirement employment opportunities.

Demarcation of roles:

There needs to be a demarcation between roles where the presence of a judicial authority is clearly valuable and even necessary, such as in a tribunal or a commission, and where it is not.
Ideally, the judicial community should take a concerted decision on this, say, in the Chief Justices’ conference.
The plenary should agree that judges should not take up any appointments upon retirement stemming from political patronage (with the nature of such appointments being clearly defined).
Additionally, a cooling period of about two years should be considered a mandatory minimum before a judge agrees to take on any post-retirement adjudicatory role, in any case.

Conclusion:

Justice Y.V. Chandrachud had said that the greatest danger to the judiciary lies within. Members of the judiciary cannot compromise independence by trading it for a plum postretirement sinecure. When one becomes a judge, one signs up to fulfill a promise of ensuring a fair and independent judiciary; this promise cannot be compromised at any cost. Our judges need to be gently reminded of this unwritten contract they have with the Indian people.

Right To Be Forgotten

Context:

The Delhi High Court is all set to hear a doctor’s plea for enforcement of his ‘Right to be Forgotten’.

About the Right To Be Forgotten

The “Right to be Forgotten” is the right to remove or erase content so that it’s not accessible to the public at large.
It empowers an individual to have information in the form of news, video, or photographs deleted from internet records so it doesn’t show up through search engines, like Google in the present case.

Origin of the Right To Be Forgotten

The concept of the Right to be Forgotten has its origins in European data protection law 1995 which gave individuals the right to request the erasure of their personal data under certain circumstances.
However, this right was limited to data held by data controllers, and did not apply to data that had been made public.
In 2014, the European Court of Justice issued a landmark ruling in the case of Google Spain v. AEPD and Mario Costeja González, which recognized the Right to be Forgotten as a legal right in the EU.
The court held that individuals have the right to request the removal of search engine links to information that is “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed.”

Law on the Right to be Forgotten

According to Section 43A of the Information Technology Act of 2000, organizations that have confidential personal data but fail to keep it secure enough to prevent loss or wrongful gain to anyone may be required to make compensation to the victim.
The IT Rules, 2021 do not include this right; however, they do provide a procedure for submitting complaints with the designated Grievance Officer in order to have content containing personal information about a complainant removed from the internet.

Court on the Right to be forgotten

Right to be forgotten is not recognised by a law or a statute in India explicitly.
K.S.Puttaswamy vs Union of India: The courts have held that the Right to be forgotten is inherent to an individual’s Right to Privacy under Article 21.
In this case, a nine-judge panel, including CJI Chandrachud, cited a 2016 European Union Regulation that recognised “the right to be forgotten,” or an individual’s right to have personal information removed from a system when “he is no longer desirous of his personal data being processed or kept.”
The Supreme court also recognized that the right to be forgotten can be restricted by the right to freedom of expression and information or “for compliance with legal obligations”, or for the performance of tasks in the public interest.

Wayforward

The Parliament and the Supreme Court should conduct a thorough examination of RTBF and devise a mechanism for balancing the conflicting rights to privacy and freedom of expression.
In this digital era, data is a valuable resource that should not be unregulated. In this context, the moment has come for India to implement a strong data protection regime.

National Commission for Scheduled Tribes

Context:

According to data presented in Lok Sabha, the National Commission for Scheduled Tribes (NCST) is currently operating with a staff strength that is below 50% of its sanctioned capacity.

About

The NCST was established through the Constitution (89th Amendment) Act, 2003, which amended Article 338 and inserted a new Article 338A in the Constitution.
It was created by replacing the then National Commission for Scheduled Castes and Scheduled Tribes with two separate commissions.
The NCST has its headquarters in New Delhi and 6 regional offices.
The Commission consists of a Chairperson, a Vice-Chairperson, and 3 members who are appointed by the President.
The Chairperson has the rank of Union Cabinet Minister, and the Vice Chairperson has the rank of Secretary to the Government of India.
The tenure of the Commission is 3 years, and the conditions and service of tenure are determined by the President.
These functions include investigating and monitoring matters relating to safeguards provided for STs under the Constitution, laws, or government orders.
The Commission also participates in and advises on the planning process relating to the socio-economic development of STs and submits annual reports to the President on the working of safeguards and measures required for effective implementation of programs and schemes relating to the welfare and socio-economic development of STs.

Powers of the Commission —

Under Clause (8) of Art. 338A For Investigation and Inquiry, the Commission is vested with powers of a civil court having authority to
Summon and enforce attendance of any person and examine on oath.
Discovery & production of any documents.
Receive evidence on affidavits.
Requisition any public record or copy thereof from any court or office.
Issue Commissions for examination of witnesses and documents.
Any matter which President, by rule, may determine.

National Commission for Safai Karamcharis (NCSK)

Context:

Recently, The National Commission for Safai Karamcharis (NCSK), after being headless for close to a year, has finally got a chairperson, vice-chairperson, and member on board though several posts still remain vacant.

About the National Commission for Safai Karamcharis (NCSK)

The commission was constituted on August 12, 1994, as a statutory body by the Parliament.
Its tenure was extended from time to time up to February 2004, after which the Act lapsed.
Since then, the commission has been operating as a non-statutory body under the ministry, with its tenure extended from time to time through government resolutions.
On the status of the commission, MoS for Social Justice and Empowerment Ramdas Atha-wale said in the Parliament “There is no such proposal for converting the commission into a statutory body.”

The Primary functions of the National Commission for Safai Karamcharis (NCSK)

Investigating complaints related to the non-implementation of the provisions of the Act.
Conducting surveys and identifying manual scavengers and their dependents for their rehabilitation.
Monitoring the implementation of rehabilitation schemes for manual scavengers.
Recommending measures to be taken by the government for the rehabilitation of manual scavengers.
Spreading awareness and educating the public about the evils of manual scavenging and the importance of proper sanitation and hygiene.

Special Leave Petition (SLP)

Context:

Recently, The government of Telangana has lodged two special leave petitions (SLPs) with the Supreme Court in an effort to overturn the Telangana High Court’s rulings regarding the transfer of the BRS MLAs’ poaching attempt investigation to the CBI.

About

The Constitution of India, under Article 136, empowers the Supreme Court to grant special permission or leave for an aggrieved party to appeal against an order passed in lower courts or tribunals in India.
A petition is filed for an appeal, rather than an actual appeal being made.
The Supreme Court’s power under Article 136 is discretionary, meaning that it is up to the court’s judgment whether or not to grant special leave to appeal.
Any person can apply for special leave to appeal under Article 136.

Concept of res judicata

Context:

The Madras High Court, in a recent development, has dismissed a petition by invoking the principle of res judicata, which essentially means that the matter in question has already been adjudicated upon and cannot be raised again in a court of law.

About

Res judicata is a legal principle that has its origins in the English Common Law System.
The term ‘res judicata’ literally translates to ‘the thing has been judged’.
The principle of res judicata comes into play when a person attempts to file a subsequent lawsuit on the same matter after having received a judgment in a previous case involving the same parties.
This principle applies to both civil and criminal legal systems, and prevents the courts from allowing a petition to be filed on the same issue before them.
The purpose of res judicata is to prevent injustice to the parties involved in a case, and to avoid wasting resources and time of the judicial system on matters that have already been decided.

VP Dhankhar says ‘Parliament is the North Star of Democracy’: What is the North Star?

Context:

Vice President Jagdeep Dhankhar said Parliament is the “North Star” of democracy, “a place of discussion and deliberation to realize the aspirations and dreams of the people”.
Last month, Chief Justice of India D Y Chandrachud had described the basic structure of the Constitution, laid down by the Supreme Court in the 1973 Kesavananda Bharati judgment, as the “North Star” that “guides and gives certain direction to the interpreters and implementers of the Constitution when the path ahead is convoluted”.

Relevance of Basic structure:

The basic structure doctrine provides a framework for judicial review of constitutional amendments and ensures that the Constitution remains the supreme law of the land.
It helps to protect the fundamental principles and values enshrined in the Constitution, such as the rule of law, democracy, and human rights, from being eroded or amended beyond recognition.
The doctrine also acts as a check on the power of the legislative and executive branches, ensuring that they do not undermine the basic structure of the Constitution.
In addition, the doctrine helps to promote the stability and continuity of the Constitution, preserving its essence and essence for future generations.
Overall, the basic structure doctrine helps to maintain the balance of power and ensure that the Constitution remains an effective and meaningful document that serves the needs of the people.

The Problems with Basic Structure:

The concept of implied limitations on the power of amendment in the Constitution of India is vague and uncertain. The framers of the Constitution expressed their intentions clearly and there is no scope for invoking this concept.
The theory of basic structure, introduced in the Kesavananda Bharati case, has shifted power towards the judiciary and has been criticized as a vague and undefined concept.
The judiciary should not consider itself as a “super legislature” during judicial review, but rather focus on maintaining the rule of law.
Laws are meant to evolve and adapt over time, and the Constitution is an organic document. The creation of myths like the basic structure theory can create apprehensions and aspersions, and it is the duty of the nation to observe laws in obedience. Some countries run without a constitution and are still law-abiding

Agnipath Scheme

Context:

Recently, Delhi High Court upheld the Constitutional validity of the Agnipath scheme.

Delhi High Court Observation

“Unless a policy decision made by the government is clearly capricious or arbitrary, or if it suffers from the vice of discrimination or violates any law or provision of the Constitution, this Court is not to question the propriety of such a policy decision.”
Policy decisions with regard to national security are taken after careful consideration of the socio-political scenario of the country, along with the socio-political scenario of the border countries.
The Courts cannot and should not delve into the appropriateness of such policy decisions and, thus, endanger one of the most important aspects of the basic structure doctrine, i.e., the principle of separation of powers.

Supreme Court Verdict on ECI Appointments

Context:

Recently, the Supreme Court of India passed a unanimous verdict that the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) should be made by the President on the advice of a Committee consisting of the Prime Minister, the Leader of the Opposition of the Lok Sabha, and Chief Justice of India (CJI).
In case the Leader of the Opposition is not available, the leader of the largest opposition party in the Lok Sabha in terms of numerical strength will be a part of the committee.

What are the other important points of the verdict?

The SC verdict further stated that the Constituent Assembly (CA) made it clear that elections must be conducted by an independent Commission.
While the court cannot ordinarily encroach on purely legislative powers, the context of the Constitution and the vacuum created by the legislature made it necessary for the court to intervene.
On the question of whether the process of removal should be the same for the CEC and ECs, the SC stated that it cannot be the same as the CEC holds a special position and article 324 becomes inoperable without the CEC.
The question of funding the EC, Permanent Secretariat, and the need for expenditure to be charged on the Consolidated Fund of India was left for the government to decide.

What was the government’s argument?

The government had argued that in the absence of such a law by parliament, the President has the constitutional power and asked the SC to exhibit judicial restraint.

What is the challenge?

Poses a question of Separation of Power: The Constitution places the power to make any law on the appointment of ECI in the hands of Parliament, so the SC’s ruling on this issue poses a question of Separation of Power.
However, the ruling is subject to any law made by parliament, which means parliament can bring a law to undo it.
Constitutional Vacuum: Another view is that since there is no law made by parliament on this issue, the Court must step in to fill the “constitutional vacuum.”

What are the existing provisions for the appointment of the ECI?

Constitutional Provisions: The Indian Constitution’s Part XV (Article 324-329) deals with elections and establishes a commission for these matters.
Structure of ECI: The commission originally had only one EC but was made a multi-member body (1 CEC & 2 other ECs) after the Election Commissioner Amendment Act 1989.
Appointment Procedure: According to Article 324, the Election Commission shall consist of the CEC and such a number of other election commissioners, if any, as the President may from time-to-time fix.The appointment of the CEC and other Election Commissioners shall be made by the President, subject to the provisions of any law made on his behalf by Parliament.
Removal: They can resign anytime or can also be removed before the expiry of their term. The CEC can be removed from office only through a process of removal similar to that of a SC judge by Parliament. Any other EC cannot be removed except on the recommendation of CEC.

UPSC Civil Services Examination Previous Year Questions (PYQ)

Prelims

Q.1 Consider the following statements: (2017)

The Election Commission of India is a five-member body.
The Union Ministry of Home Affairs decides the election schedule for the conduct of both general elections and bye-elections.
Election Commission resolves the disputes relating to splits/mergers of recognised political parties.

Which of the statements given above is/are correct?

(a) 1 and 2 only

(b) 2 only

(d) 3 only

Mains

Q.1 In the light of recent controversy regarding the use of Electronic Voting Machines(EVM), what are the challenges before the Election Commission of India to ensure the trustworthiness of elections in India? (2018)

Q.2 To enhance the quality of democracy in India the Election Commission of India has proposed electoral reforms in 2016. What are the suggested reforms and how far are they significant to make democracy successful? (2017)