06 Sep 2021: UPSC Exam Comprehensive News Analysis

E. Editorials

Category: POLITY

1. The judicial role in improving lawmaking

Context

• Lack of healthy debates in Parliament has deteriorated the quality of deliberation.

Concerns

• Chief Justice NV Ramana expressed concern at the manner in which laws are being passed in Parliament without proper discussion, deliberation, and quality debates and said the product of it was legislations with a lot of gaps and ambiguity.
• The number of bills passed should not be the measure of efficiency, instead, emphasis should be given to quality.
• Representatives are elected to discuss the problems of their constituency. They have to uphold the principles on which they were elected. Voting a bill without deliberating may have implications on the people at large as their rights might get affected.
  • If bills are passed without discussion, questions will not be asked to the minister concerned, expert opinion will not be taken compromising the quality of legislation.
• The legislators are given the constitutional duty to question the executive and represent the diverse interest groups. Rushed lawmaking makes the Parliament a rubber stamp, sacrificing the two core ideals of a constitutional democracy, namely, equal participation and respect for fundamental rights.

Role of the Judiciary

The judiciary can play an important role in improving the lawmaking process. A straightforward way of doing this is by enforcing the text and spirit of the constitutional provisions governing legislative procedures.

1. Right implementation of constitutional procedures

• Voice votes registered during the passing of the bill is marred with disagreement.
  • This issue arose most recently when the controversial farm laws were reportedly rushed and passed by voice vote in the Rajya Sabha despite objections by Opposition members.
• The procedures have to be followed and if need be questions should be raised about the implementation.

2. Bills as Money Bills

• The description of the Money Bill is provided under Article 110.
  • This Article identifies seven areas that can be governed through the enactment of Money Bills, including the imposition of tax, the regulation of borrowing and appropriation of money out of the Consolidated Fund of India.
• Bills certified as Money Bills bypass the Rajya Sabha.
• Therefore the judiciary should intervene in a timely manner if the features mentioned in the article are not met.

3. Judicial Review

In exercising judicial review, the court’s role is to call on the State to provide justifications explaining why the law is reasonable and, therefore, valid.

• The court can examine whether and to what extent the legislature deliberated the reasonableness of a measure.
• The legislative inquiry would usually include evaluating the factual basis justifying the law, the suitability of the law to achieve its aim, and the necessity and proportionality of the law relative to its adverse impact on fundamental rights.
• The Supreme Court adopted such an approach in the Indian Hotel and Restaurants Association (2013) case.

4. Doctrine of presumption of constitutionality

• It is a legal principle where the judiciary initially assumes law enacted by the legislature to be constitutional, unless the law is declared unconstitutional by the Judiciary.
• To sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation.

Issue Area

• When laws are passed without debates and empirical data, the State will find it difficult to substantiate the need for such a legislation and will continue to depend on this doctrine to resist close judicial scrutiny.

What should Judiciary do?

• By extending this doctrine to laws made by the legislature, the judiciary undermines the guarantee of judicial review provided to protect fundamental rights.
• Instead, if the judiciary confines the doctrine only to cases where the State shows that laws and their consequences were carefully deliberated in Parliament, the judiciary can encourage legislative bodies to ensure a deliberative lawmaking process.

Read more on judicial doctrines in the linked article.

Way forward

• The CJI’s suggestion that the legislature be reformed from within is the ideal solution to remedying legislative dysfunction without raising concerns of separation of powers.
• However, the government has very little incentive to cooperate for such reform. The need of the hour is significant public mobilisation on the issue.
• By adopting a swift and systematic approach to reviewing the legislative process, the judiciary can help restore faith in the ‘temples of democracy’ and push us toward the culture of justification the Constitution sought to create.

2. The key to revitalising India’s reservation system

Caste Census

CNA dated Aug 25, 2021: Caste counts

Justice G. Rohini Commission

• It was set up to look into the question of equitable redistribution of the 27% quota for Other Backward Castes (OBC).

Terms of reference:

• To examine the extent of inequitable distribution of benefits of reservation among the castes or communities included in the broad category of OBCs with reference to such classes included in the Central List;
• To work out the mechanism, criteria, norms and parameters in a scientific approach for sub-categorisation within such OBCs;
• To take up the exercise of identifying the respective castes or communities or sub-castes or synonyms in the Central List of OBCs and classifying them into their respective sub-categories.

Report on the sub-categorization of OBCs

• Based on the last five years’ data on appointments in central government jobs and OBC admissions to central higher education institutions, the commission concluded that 97% of central OBC quota benefits go to just under 25% of its castes.
• As many as 983 OBC communities — 37% of the total — have zero representation in both central government jobs and admissions to central universities.
• The report further states that just 10% of the OBC communities have accrued 24.95% of jobs and admissions.

System should be made accountable and sensitive to intra-group demands

• One, we need to develop evidence-based policy options to meet specific requirements of specific groups.
• Two, we need an institution like the Equal Opportunities Commission of the United States or the United Kingdom which can undertake two important but interrelated things:
  • Make a deprivation index correlating data from the socio-economic-based census of different communities including caste, gender, religion, and other group inequalities and rank them to make tailor-made policies.
  • Undertake an audit on the performance of employers and educational institutions on non-discrimination and equal opportunity and issue codes of good practice in different sectors.

Conclusion

• Successive governments have been reluctant to engage with such radical policy options, as they look up to short term gains.
• Thus a socio-economic caste-based census becomes a necessary precondition to initiate any meaningful reform in the affirmative action regime in India.

Q1. Consider the following statements:

Q2. Which of the following is/are the applications of Doppler radar?

Q3. Consider the following statements:

Q4. Which of the following statements is/are incorrect?

Q5. Which of the following is/are the function/functions of the Cabinet Secretariat? 

I. UPSC Mains Practice Questions

1. A socio­-economic caste­-based census becomes a necessary precondition to initiate any meaningful reform and to revitalize India’s reservation system. Analyse the statement. (15 marks, 250 words)(GS Paper 2/Polity)
2. Rushed lawmaking in the Parliament has rendered the institution into a rubber stamp and sacrifices the core ideals of a constitutional democracy. Critically examine. (15 marks, 250 words) (GS Paper 2/Polity)

Read the previous CNA here.