26 May 2023: UPSC Exam Comprehensive News Analysis

B. GS 2 Related

Category: POLITY

1. Why do judges recuse themselves?

Syllabus: Structure, organization and functioning of the Judiciary

Prelims: About recusal of judges

Mains: Recusal of judges – Meaning, guiding principles, procedure, and various issues associated with it.

Context

• Justice M.R. Shah, who is a Supreme Court judge, recently refused to recuse himself from hearing a plea by former Indian Police Service (IPS) officer Sanjiv Bhatt to submit additional evidence to back his Gujarat High Court appeal against his conviction in a 1990 custodial death case. 
• The Chief Justice of India D.Y Chandrachud also refused to recuse himself from hearing petitions seeking legal recognition of same-sex marriages.

Recusal of judges

• Recusal refers to the withdrawal of a judge from hearing a case in order to prevent the perception that the judge was biased while deciding a case or avoid a potential conflict of interest.
• There can be various reasons for the recusal of judges such as a judge could be holding shares in a litigant company or the judge might be having personal association with one of the parties of a case or if an appeal is filed in the Supreme Court against a High Court judgment delivered by the judge concerned before his elevation.

Guiding principles and legislation

• The practice of judicial recusal derives its origin from the fundamental principle of “due process of law”.
  • Nemo judex in sua causa is one of the key principles of due process of law.
  • Nemo judex in sua causa means “no person shall be a judge in his own case”.
• Further, the then Lord Chief Justice of England in his judgement in the Rex v/s Sussex Justices case (1924) had held that “justice must not only be done but must also be seen to be done”.
• Judges, while taking the oath of office, promise to perform their duties “without fear or favour, affection or ill-will” as per the Third Schedule of the Constitution.
• Additionally, the Restatement of the Values of Judicial Life adopted by the Supreme Court bars a judge from deciding a case that involves an entity where the judge holds pecuniary interest unless the parties concerned clarify that they have no objections.

Procedure for recusal

• There are mainly two types of recusals:
  • An automatic recusal is when a judge voluntarily recuses himself from a case.
  • A party involved in a case raises a plea for the recusal of a judge by highlighting the possibility of bias or conflict of interest of the judge.
• It is to be noted that a decision of recusal rests only on the conscience and discretion of the judge and no party can force or compel a judge to recuse himself from a case. 
• There have been various instances in the past where judges have withdrawn themselves despite not seeing a conflict but only because such apprehension was cast.
  • However, there have also been several instances where judges have refused to withdraw from a case. 
• Whenever a judge recuses himself from a case, that case would be listed before the Chief Justice for allotment to an alternate Bench.
• India has no codified rules governing recusals but various Supreme Court judgments have dealt with the issue in the past.
• As there are no statutory provisions that govern the process, it is left to the judges to record reasons for recusals. Judges have sometimes specified reasons orally in open court and sometimes have recorded reasons through written orders.
• In its recent ruling, the Delhi High Court has held that “no litigant or a third party has any right to intervene, comment or enquire regarding a judge’s recusal from a case”.

Supreme Court on judicial recusal

• The Supreme Court has listed several factors that need to be taken into account for deciding the impartiality of a judge. 
• In Ranjit Thakur v/s Union of India Judgement (1987), the apex court had said while determining if a judge should recuse himself from a case, the reasonableness of the apprehension of bias in the mind of the concerned party must be relevant.
  • The judge should not only think from his perspective but also look at the mind of the party before him.
• The Supreme Court in its State of West Bengal v/s Shivananda Pathak Judgement (1998), defined judicial bias as a “preconceived opinion or predetermination to decide a case in a particular manner, so much so that such predisposition does not leave the mind open to conviction”. 
  • This condition of preconceived opinion in the mind of the judge renders the judge incapable of impartiality in a case.
• In the Supreme Court Advocates-on-Record Association v/s the Union of India Judgement (2015), the Court formulated a more definite rule by observing that where a judge has a pecuniary interest, no further inquiry is needed as to whether there was a ‘real danger’ or ‘reasonable suspicion’ of bias. 
  • In order to ensure that the court is deciding in terms of possibility rather than the probability of bias, such cases require an inquiry, with the relevant test being the “real danger” test which investigates the real danger of bias.
• Furthermore, Justice Arun Mishra in the Indore Development Authority v/s Manoharlal and Ors Judgement (2019), had noted that having a legal opinion alone does not invalidate a judge from being impartial.
  • Justice Arun Mishra had said that a judge who had rendered a decision in a smaller combination is not disqualified from being part of a larger Bench to which a reference is made. 

Practice of  judicial recusals in foreign jurisdictions

• The U.S.: Unlike India, the U.S. has well-defined legislation on judicial recusals.
  • Title 28 of the U.S. Code mentions various grounds for disqualification of a judge.
  • Similar rules are also seen in the American Bar Association’s Model Code of Judicial Conduct, which mentions three grounds for recusal namely financial/corporate interest, a case in which the judge was a material witness or a lawyer, and a relationship to a party. 
  • Judges can also recuse themselves voluntarily which is known as “sua sponte recusals”.
• The U.K.: The law on judicial recusals in the U.K. has evolved through various judicial pronouncements. 
  • In the case of R v/s Gough, the ‘real danger’ test was adopted as a standard for passing recusal orders. 
    • As per the test, the disqualification was made solely on substantive and tangible evidence which conclusively highlights the judicial bias or prejudice. 
  • As the ‘real danger’ test was criticised heavily, a new test was formulated in the Lawal v/s Northern Spirit Ltd case.
    • The new standard laid down also looked into the likelihood of bias from the perspective of a fair-minded and reasonable observer.

For more information about “Recusal of a Judge”, refer to  the following article:

UPSC Comprehensive News Analysis dated 11th January 2022 

Also read – Appointment and Removal of Judges of the Supreme Court

Nut graf: Provisions for the recusal of a judge from a case play a crucial role in upholding the constitutional duty of the judges to be ‘transparent and accountable’ and also ensure due process of law. In order to deal with the increase in the frequency of recusal pleas, there is an urgent need for formulating procedural and substantive rules for recusal.

D. GS 4 Related

Nothing here for today!!!

E. Editorials

Category: POLITY

1. An ordinance, its constitutionality, and scrutiny

Syllabus: Constitution of India —historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

Prelims: Ordinance-making powers

Mains: Ordinance-making power has reduced the importance of the legislative chamber of the house.

Context: The President of India recently exercised his ordinance-making powers to promulgate “The Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023” (Ordinance).

What is an ordinance? 

• Article 123 of the Indian Constitution empowers the President to issue an ordinance when both or one of the houses of the parliament is not in session. 
• The ordinance carries the same force of the law as other laws of the land. 
• The ordinance must be ratified by both houses of the parliament within six weeks after the session has resumed. 

Read more – Ordinance Making Power of President & Governor

Recent ordinance: Observation made by the court 

• The recent ordinance issued by the government overruled the verdict of the apex court regarding the power vested in the NCT government for appointing key officials in the UT.
• The court held that under article 239 AA 3(a), the Legislative Assembly of Delhi has power over lists 2 and 3 except for entries 1, 2 and 18. 
• The court held that NCTD has the legislative power in all matters and the central government has the power to legislate with respect to land, police, and law and order. 
• Thus, the court held the power with respect to ‘services’ is exclusively exercised by the government of Delhi. 
• This above verdict has been negated by the Union government with the subsequent promulgation of the ordinance. 

Also read: Government of NCT of Delhi (Amendment) Act, 2021

Previous judgment of the court: 

• In Krishna Kumar Singh Vs State of Bihar, the apex court held that the satisfaction of the President is not immune from judicial scrutiny. 
• The power exercised by the President under Article 123 is not parallel to the power vested in the legislature of the country. 
• So the court can look into the material evidence of the act and thus take measures in order to uphold constitutional sovereignty. 

Nut graf: The ordinance-making power of the President puts enormous power in the hand of the executive and thus undermines the sanctity of the legislature.

Category: ECONOMY

1. Economics that look into lower half of the pyramid

Syllabus: Inclusive growth and issues arising from it.

Prelims: The concept of inclusive growth. 

Mains: Significance of Inclusive growth and various government initiatives

Context: The theme at the Global Solutions Summit held in Berlin, “was a new paradigm for the economy”.

What is inclusive growth?

• Inclusive growth is economic growth that is distributed fairly across society and creates opportunities for all.
• According to a recent Oxfam report, the top 10% of the Indian population holds 77% of the total national wealth. 73% of the wealth generated in 2017 went to the richest 1%.
• This editorial argues that 50 percent of Indians are now left behind the fruits of development.  

Global solution summit: 

• The Global Solutions Summit – the World Policy Forum – is an international conference aimed at addressing key policy challenges facing the G20 and G7.
• Global solution summit focuses on Leveraging the Diaspora, Youth, and the African Continental Free Trade Area to Harness Science, Technology and Innovation for the SDGs 2030. 

Changes noticed: 

• The rising inequality across the world has pushed the world to a corner of the revolution and has developed a stressed situation. 
• The extreme left wants revolutionary change in order to bring parity in society whereas the rightist wants to preserve the stability of the country. 
• Most of the economies have been reformed in recent times in order to meet the needs of the local people. 
  • This is done by devolving various socialist principles in order to fit into the needs of the people. 
• In the US  the government increased the taxes and brought various social schemes to raise resources and finance the needs of the people. 

New initiatives: 

• Efforts were being made to encourage investors to invest in the market so as to generate employment for the people. 
• Private sectors were encouraged to undertake operations since they showcase greater efficiency in comparison to public enterprises. 
• This type of initiative has led to a rise in global citizenship which can be set into different environments. 
• Taxes were reduced to the bottom in order to further encourage investors to invest in the economy. 

Outcome: 

• GDP has become the sole factor for the calculation of a country’s growth across the globe whether or not it meets the needs of different sections of society. 
• Such types of growth factors have led to the development of the few at the cost of many across the world. 

Nut graf: Transferring the benefits of the growth to the person standing last in the line is necessary for the stability of the country. Thus the focus of Indian political parties and economists must be on universal social and ecological well-being.

F. Prelims Facts

1. Battle for Bakhmut

Syllabus: GS-2; International Relations

Prelims: Battle for Bakhmut 

Context

The head of Russia’s Wagner group has said that his troops have captured the city of Bakhmut and have started transferring their positions to the Russian military.

Battle for Bakhmut

Image Source: Forbes

• Bakhmut is a city in eastern Ukraine. 
• It is an administrative centre and an industrial hub in the Bakhmut Raion of Donetsk region.
• The city is located close to the Bakhmutka River.
• The battle for Bakhmut has continued for about a year as Russia invaded Ukraine on February 24, 2022.
• The founder and the head of Russia’s Wagner mercenary group claimed to have captured Bakhmut and has vowed to transfer control of the Ukrainian city of Bakhmut to the Russian army by 1 June 2023.
• The Russians already control the whole of Luhansk and capturing Bakhmut would potentially help them target other major urban centres in Donetsk such as Kramatorsk and Sloviansk.
• Ukraine, however, has denied claims that Bakhmut has been captured by Russia, and says that it still controlled a “micro district” of the ruined city and is advancing on the flanks.

I. UPSC Mains Practice Questions

1. Examine the constitutionality of The Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023. (250 words, 15 marks) (GS-2; Polity)

2. Critically analyze the trickle-down model of economic development. Does it provide for universal social and economic well-being? (250 words, 15 marks) (GS-3; Economy)

Read the previous CNA here.