Current Public Administration Magazine (NOVEMBER 2022)
Sample Material of Current Public Administration Magazine
(NOVEMBER 2022)
1.Accountability & Responsibility
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How the EWS judgment has failed the Indian Constitution
Owen M Fiss, professor at Yale University, has argued that “economic criteria” is artificial, and has no basis for discrimination in social life. On the same line, William E Forbath of the University of Texas, said that constitutional equality is equality of status or standing; different degrees of respect are attributed to status.
Caste degradation denotes membership of a group that is seen as physically different and inferior. Class and interest groups do not need constitutional protection: Their economic commonalities do not demand invocation of constitutional values. Use of economic criteria to understand marginalisation can result in the subjugation of historically-disadvantaged groups. This is why scholars reject economic criteria as the sole basis for understanding discrimination. There is no instance of deprivation or discrimination or social exclusion against any person solely on the ground of her economic standing. For instance, BabuJagjivan Ram, the then Deputy Prime Minister, was insulted for inaugurating a statue in Banaras in 1978 because of his caste.
India is a unique country where even a President could reportedly be insulted at a temple. In another instance, Jitan Ram Manjhi, the then chief minister of Bihar, faced similar humiliation. The examples are far too many to list. There is enough evidence that points to the practice of untouchability and social discrimination continuing against the members of the erstwhile fourth varna, “Shudra”. The five-member Constitution Bench that heard the validity of the 103rd constitutional amendment did not reject this fact, yet the majority verdict held that the introduction of economic criteria in reservations is constitutionally valid. Even the dissenting judgment by Justice Ravindra Bhat with the outgoing CJI U ULalit did not say that the “criteria of economic standing alone” is bad, as they emphasised the 50 per cent ceiling. This 50 per cent ceiling, a judicially-created criteria with no roots in the Constitution, could deprive members of SC, ST and OBC communities, as well as the deprived among the Muslims and Christians.
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2. Indian Government and Politics
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Hard Talk Hard Times
Here is an exchange of views between a Bench of the Hon’ble Supreme Court and the Union Law Minister:
SC: The Centre is frustrating the appointment process of judges in higher judiciary by not clearing names recommended by the Collegium.
LM: Never say that the government is sitting on the files, then don’t send the files to the government, you appoint yourself, you run the show.
SC: Let them give the power. We have no difficulty …when somebody high enough says let them do it themselves, we will do it ourselves, no difficulty.
There are profound — I hesitate to say bitter — differences between the Supreme Court and the Executive on the interpretation of Article 124(2) and 217(1) of the Constitution of India. Under the original provisions, the power of appointment was vested solely in the Executive to be exercised in consultation with the Supreme Court and the High Court concerned. For 40 years, the practice was that the State government would consult the High Court concerned and recommend names to the Central government that would follow the procedure in Article 217 and appoint judges to the High Court. Similarly, the central government would propose names and, following the procedure in Article 124, appoint judges to the Supreme Court. Many distinguished judges were appointed by the Executive; some bad apples also found a place in the Courts.
Reversing Constitution
The practice was reversed by judicial interpretation in the Second Judges case (1993) and the Third Judges case (1998). A new mechanism called the Collegium was invented. The Collegium took over the power of selection of judges for the Supreme Court and the High Courts. The central government may accept or return the recommendation. If the recommendation was reiterated, the government was obliged to make the appointment. It cannot be said that the quality of judges who have been appointed under the new procedure has been superior to the quality of judges appointed in the first 40 years. Many distinguished judges were appointed but some bad apples were also selected and appointed.
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3. Social Administration
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What Delhi’s power subsidy reveals about India’s revdi culture
A few months ago, the national capital witnessed the launch of a campaign with the intention of persuading well-off households to voluntarily give up the benefits provided under the Delhi government’s electricity subsidy scheme. As consumers now have to opt-in for availing of the power subsidy, an element of self-selection has been introduced in the scheme that has been derisively dubbed by many as a “revdi”. Be that as it may, this recent campaign sheds light on the intractable problem of subsidies in India.
Under the AAP government’s electricity subsidy scheme, households are classified into two categories — those consuming up to 200 units per month are provided electricity free of cost, while those using between 200-400 units are provided with a subsidy of up to Rs 800 per month.
Now, Delhi has around 57 lakh domestic electricity consumers. In 2021-22, a staggering 46.8 lakh of them had availed of the scheme. Of these users, roughly 30 lakh (or a little more than half of the households with electricity) consume between 0-200 units per month and thus get zero bills. Another 16-17 lakh (roughly 30 per cent of households) utilise between 200-400 units per month and get a subsidy of up to Rs 800 per month. Thus, in total, more than 80 per cent of households with electricity in Delhi used to receive the subsidy.
In September, the AAP government launched an application process for households to opt-in for the power subsidy. By November 15, the last date for applying, 37.3 lakh had opted for the subsidy. This implies that even now, almost two-thirds of all households (66 per cent) will continue to receive the subsidy. Perhaps there is some solace to be found in that it is down from 80 per cent.
Ironically, Delhi is one of the richest states in the country. As per the Delhi government’s own economic survey, its per capita income was roughly Rs 4 lakh in 2021-22. Assuming a family of four, this implies that, on average, the annual household income should be around Rs 16 lakh. Now, one could argue that the household income distribution is extremely skewed. That the average per capita income is heavily influenced by the incomes at the very top end of the distribution. And that the households at the 51st percentile actually have much lower incomes. But that doesn’t take away from the fact that Delhi’s per capita income is almost three times the national average. It is also home to 43 lakh income taxpayers (5.1 per cent of total taxpayers) who account for around 15 per cent of all direct tax collections in the country.
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4. Current Topics
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Juvenile justice law: Person with maturity must not get blanket immunity from criminal process
The Supreme Court (SC) made an observation in its judgment of November 16 in the infamous Kathua rape-murder case: “… the rising rate of juvenile delinquency in India is a matter of concern and requires immediate attention. There is a school of thought, existing in our country that firmly believes that howsoever heinous the crime may be, be it single rape, gangrape, drug peddling or murder but if the accused is a juvenile, he should be dealt with keeping in mind only one thing i.e., the goal of reformation. The school of thought, we are talking about, believes that the goal of reformation is ideal. The manner in which brutal and heinous crimes have been committed over a period of time by the juveniles and still continue to be committed, makes us wonder whether the [Juvenile Justice (Care and Protection of Children)] Act, 2015 has subserved its object. We have started gathering an impression that the leniency with which the juveniles are dealt with in the name of goal of reformation is making them more and more emboldened in indulging in such heinous crimes. It is for the government to consider whether its enactment of 2015 has proved to be effective or something still needs to be done in the matter before it is too late in the day.”
Indeed, a “child in conflict with law” or juvenile offender could become so hardened — say, on account of exposure to dehumanising poverty and violence that he/she is beyond reform. Such hardening could, of course, occur in children for reasons other than socio-economic circumstances.
At the same time, one feels uneasy at the prospect of handing over children of any age to the police. Sending children, as a matter of course, to adult prisons for heinous crimes (which attract imprisonment of seven years or more) would rule out reformation, let alone rehabilitation and reintegration into society. Rather, the working of our criminal justice system would ensure that such a person would come out (if the person comes out alive) equipped to commit more crimes. Police reforms have yet to take place, notwithstanding the directions of the SC issued in this regard way back in 2006 (Prakash Singh). Custodial violence, abuse and torture are rampant. The majority of the jail population in India still consists of undertrials, waiting for years for their trial to commence. One would simply be writing off children if routinely sent to trial by the criminal court like adults.
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5. Indian Administration
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In Supreme Court’s ruling on disabled advocate, a positive verdict in problematic language
The Supreme Court of India, in Abhimanyu Partap Singh v. NamitaSekhon and another, while hearing a claim under the Motor Vehicles Act, 1988, awarded compensation to an advocate who was rendered permanently disabled after a road accident in 1996. The Court examined the adequacy of the compensation granted by the lower courts and on assessing various relevant factors, concluded that the compensation granted was unjust and unreasonable. The Court reasoned that the earnings of the appellant would be impacted throughout his life by the disability. Relying on the multiplier method, the Court awarded an enhanced compensation.
While the ultimate outcome of the judgment is favourable to the appellant, to arrive at this determination, the Court made some very unfortunate observations that betray its lack of awareness about the current thinking on disability rights. It held that in the era of competition, the appellant cannot compete with “normal men”. Worse still, it made the blanket observation that, to be a proficient advocate, “the person must be physically fit as he is required to move frequently to attend the professional work, reaching from one Court to other, and for movements to complete other professional commitments.” The Court further noted that the appellant was required to make extraordinary efforts to attend court proceedings and come up to the expectations of a client.
There can be no dispute with the fact that the appellant’s disability qualitatively and quantitatively affected his productivity as a legal professional. Thriving as a disabled professional in a world designed for the able-bodied is indeed extraordinarily challenging. However, the Court’s disparaging remarks on the capabilities of an advocate with a disability were completely uncalled for. It is one thing to recognise the genuine additional hardship faced by a disabled person. It is quite another to treat them as an object of charity and sympathy. The Court should have only done the former.
The Court would have done well to remember the observations made by a coordinate bench of the Supreme Court: “A lawyer can be just as effective in a wheelchair, as long as she has access to the courtroom and the legal library, as well as to whatever other places and material or equipment that are necessary for her to do her job well.” Further, in its judgment in Vikash Kumar v. UPSC and others, a three-judge bench of the Supreme Court, while ruling on a plea for the grant of reasonable accommodation by an appellant with a disability, had titled a segment of its judgment as “the language of our discourse”. The language of our discourse, it held, “as much as its outcome, should generate introspection over the path which our society has traversed and the road that lies ahead in realising the rights of the disabled.” It had pointed out the enduring impact of the use of insensitive language on the way the disabled view themselves and are viewed by society. Such language, it had emphatically noted, “offends the human dignity of persons with disabilities.” Similarly, in its concluding observations on India, the Committee on the Rights of Persons with
Disabilities had expressed concern about the way the lives of the disabled are compared with “normal life”