Sunday, 4 September 2016

All You Need to Know – NJAC

There had been a lot of hue and cry over the constitution of NJAC (National Judicial Appointment Commission). Antagonists argued that it will curtail the independence of the judiciary and the executive i.e. the government will decide the nitty-gritties of the legal system in India. It was considered as a threat to independent judicial system due to apprehensions regarding politicisation of Justice System. Therefore, the importance of this issue lies in few important questions:
  1. Has Judicial activism in the past few years led the political class to interfere?
  2. Whether we are following the concept of division of power between the legislature, judiciary and executive effectively?
  3. Whether Judiciary itself is accountable to anyone?
  4. What are the options available to find a middle path?
For understanding all these things, it is necessary to know about the historical premise

Background of NJAC

The constitution states that CJI shall be appointed by the President and other such judges shall be appointed by the President in consultation with the Chief Justice of India. Further it states that apart from consulting Chief Justice of India, the President may consult such of the judges of Supreme Court and High Court while appointing other Judges of Supreme Court.
The SC in SP Gupta vs UOI 1982 held that the opinion expressed by Chief Justice of India under Art 124(2), 217(1) and 222(1) was mere consultation and it was not binding on president. The court held that consultation “does not mean concurrence with the CJI”. And the court also held that a judge of HC can be transferred even against his will. But all consultations with the JI shall be full and effective.
However in SCARA vs UOI 1993, the SC over ruled its earlier decision and held that appointment of Judges to SC and HC is an integrated participatory and consultative exercise to select the most suitable person. Therefore the opinion expressed by Chief Justice of India under all above three articles shall enjoy primacy.
The CJI is the sole authority to initiate the process of appointment of Judges to the SC. He shares this responsibility with the Chief Justice of HC while appointing and transferring the judges of HC. The opinion expressed by CJI is not his personal opinion but the opinion of Judiciary as a whole. Therefore while forming his opinion, CJI must consult at least two of the senior most Judges of SC. All such consultation by CJI shall be in writing. In the event of any contrary opinion between constitutional authorities (President and CJI), the opinion of Judiciary expressed through CJI will prevail over that of president.
In Re-appoitment of Judges 1998 case, the SC in its advisory opinion further clarified the legal position on this issue. It stated that the sole opinion of CJI does not constitute consultation as per the above articles. While forming his opinion, CJI must consult at least 4 senior most judges of SC and transfer the judges of HC.
Therefore, there was a group of Judges including CJI (known as Collegium) that had completely bypassed the President by making the latter only a signatory authority.

Present Status of NJAC

The collegium system was questioned on various grounds leading the government to introduce the constitutional amendment act for the constitution of NJAC
  1. There is lack of transparency in the collegium. It is based on personal affiliations and nepotism. A judge having bad relations with the CJI and such judges of SC in the collegium was not recommended despite being meritorious.
  2. The working is fully opaque. The public used to get the names of Judges promoted or transfers only after it is published in the gazette.
  3. As there are a lot of pending cases and rise of judicial activism (Public Interest Litigations) , the collegium itself is not able to meet properly and thus there has been a rise in the number of vacancies in the higher courts.
  4. The Supreme Court in its Judgement of 1993 has held that the word “consultation” is actually “concurrence”. This means that SC ended up changing the constitution itself which is the sole prerogative of parliament/legislature.
After a lot of debate and discussions including Judges appointment model in other countries; the government brought 99th Constitutional Amendment Act which seeks to establish National Judicial Appointment Commission, henceforth called as NJAC.
A new Article, Article 124A provides for the composition of the NJAC. The NJAC would have consisted of:
(i) Chief Justice of India (Chairperson)
(ii) Two senior most Supreme Court Judges
(iii) The Union Minister of Law and Justice
(iv) Two eminent persons (to be nominated by a committee consisting of the Chief Justice of India, Prime Minster of India and the Leader of Opposition in the Lok Sabha)
Of the two eminent persons, one person would be from the SC/ST/OBC/minority communities or be a woman. The eminent persons shall be nominated for a period of three years and shall not be eligible for re-nomination.
The Supreme Court struck down the above constitutional amendment on the basis of violation of basic structure of constitution and stated that it violates the principle of separation of power. Antagonists also argue that it will lead to political colours to appointment of Judges. However, they oversee the provision that states that the Chief Justice and two senior-most judges – can veto any name proposed for appointment to a judicial post if they do not approve of it. Once a proposal is vetoed, it cannot be revived. Therefore Judicial independence is maintained. Further, the eminent members appointed are selected by a committee that itself contains CJI and leader of opposition which will do away with any nepotism or political affiliation to the eminent person. Therefore NJAC is one of the great ideas that has been struck down.
Whether NJAC is fool proof and What are the modifications to be made??
So, does it mean that NJAC was fool proof in term of Judicial Appointments? The answer would be a big “No”. The NJAC itself has a few flaws except that it maintains transparency in the appointment and transfer of Judges with due consultation and representation of all the three pillars of the democratic state.
The NJAC will be a great alternative to collegium system if certain changes are made:
  1. The eminent person in the present NJAC does not have any judicial background as a qualification and thus their eminence and expertise can be questioned by others while evaluating a candidate for appointment as a Judge.
  2. The present NJAC system does not call for open competitive merit based applications but rather will select Judges from a list of candidates that have already been under consideration. Therefore, it should be changed to open invitation to all the Judges.
  3. The NJAC, like collegium lacks a secretariat which will act as a back end body to conduct inspection about the Judges and evaluate them on the basis of their past work, Judgements rendered and experience. Therefore a proper secretariat should be made that will provide support to the NJAC.
In lieu of all these things, there are chances that the opaqueness around the collegium and opposition to the NJAC will go away. The backlog of vacancies borne out of transfer and retirement of Judges may also become a thing of the past and will usher in a path of better justice system.

Thursday, 21 July 2016

Water Crisis

According to UN report, 1.8 billion people will face absolute water scarcity and 2/3 of the world will be under water stressed conditions by 2025. Water scarcity is when an individual does not have access to safe and affordable water to satisfy her or his needs for drinking, washing or for their day to day life. 

As per World Water Development Report released on World Water Day, there will be a knock down supply of water in sub Saharan Africa and Southeast Asian countries. "Unless the balance between demand and supplies is restored, the world will face an increasingly severe global water crisis," the report says. 

Water scarcity is both a natural and a human-made occurrence. Among the handful factors which lead to water scarcity population growth, industrialization and urbanization are the leading ones. Freshwater on the earth is distributed unevenly and too much of it is wasted, polluted and unsustainably managed.

The data shown below discusses the distribution of water on the earth.


Given that only around 2.5% of the Earth's water is Freshwater. Rest of the water is saline or salt water, mostly found in the oceans. Of the 2.5% of freshwater available for the needs of human life, agriculture, and others, 30.1% is groundwater.

Groundwater is the water stored deep beneath the earth's surface in underground aquifers. Another 68.6% of all freshwater is stored in glaciers and polar caps. Hence only 1.3% of the total freshwater is available on earth in the form of lakes, rivers, and streams upon which human beings and other species rely upon for their biological and economical needs. Again most of the surface water on earth i.e., around 73.1% is found in snow and ice. Surface water found in lakes, rivers and streams accounts for just over another 20%.

Water use has been rapidly growing more than the rate of population growth. Over the last few decades, the rate of demand for water is double the rate of population growth. By 2050, the U.N. projects the global population at 9.1 billion people. 

The most recent WHO/UNICEF Joint Monitoring program for Water Supply and Sanitation (JMP) biennial report which aimed towards providing drinking water and basic sanitation under Millennium Development Goal 7 met its target of halving the proportion of such population without sustainable access to safe drinking water and sanitation between 1990 and 2015. However, an estimated 780 million still lacked safe drinking water in 2010, and the world is unlikely to meet the MDG sanitation target. 

Around 2,590 farmers in Maharashtra committed suicide in the year 2015. There is no water to drink and to irrigate their fields. The fact remains that severe water stress affecting 1/3 of the world's population is expected to double to 2/3 by 2025 and the people living in river basin areas where the use of water exceeds the supply side will face huge scarcity.

The consensus is that the availability of water will remain same as it is now a days but there will be far more people on the planet which will lead to reduction in the availability of freshwater for all uses and uneven distribution of water across the globe.

The main areas which will have more effect of this are the equatorial regions, which are already among the most water stressed areas. These areas are mostly dependent on rainfall rather than irrigation for agriculture and hence have the risk of crop failure. 

Climate change also has a negative effect on the water supply. Increasing temperatures cause higher evaporation from open freshwater sources which reduce the surface water available for agriculture and household purposes. Some water flows into streams and rivers, taking a greater part of the available water.

FAO estimates that 70% of the world's water is used for agricultural purposes. Water demand is increasing to meet food security in high consumption areas. One recent study revealed that in some places energy production might overtake agriculture as the primary user of water. Burning Our Rivers: The Water Footprint of Electricity, a 2012 report by River Network attempts to summarize what is known about the water footprint of various modes of electrical power production. Electricity production by coal, nuclear and natural gas power plants have exceeded their use of freshwater in U.S., accounting for more than about half of fresh surface water from rivers and lakes.

Few solutions to change the face of this crisis is to first educate the people to change the form of consumption of water. Innovating new water conservation technologies. There has been a lot of work in the world of water conservation, but there is also a lot that needs to be done in order to ensure that not only India but rest of the world is able to conserve water.

Every household should build underground storage for rain water. Recycling of waste water and improving irrigation can help close supply and demand gaps. There is no model in India that shows best ways to tackle the waste water generated through the industrial and domestic sectors. Appropriate pricing of water should be done. According to experts from the Organization for Economic Co-operation and Development (OECD), raising prices will help lower waste and pollution.

Governments need to redefine their role and enact better policies and regulations, while improving distribution infrastructures and also addressing pollution of water. Only by changing today’s approach to future water management and water productivity, can we ensure a prosperous future.