PM IAS EDITORIAL ANALYSIS AUG 08

The workings of the Supreme Court collegium

Context:

The Chief Justice of India (CJI) N.V. Ramana’s tenure is drawing to an end in a few days. The Ramana Collegium has been particularly successful in addressing the issue of judicial vacancies. It got Supreme Court judges appointed in one go, including one who is in line to be the first woman CJI in 2027.

What is the collegium system

• The collegium system was born out of years of friction between the judiciary and the executive. The hostility was further accentuated by instances of court packing (the practice of changing the composition of judges in a court), mass transfer of high court judges and two supersessions to the office of the CJI in the 1970s.
• The collegium of the CJI and four senior most judges of the Supreme Court make recommendations for appointments to the apex court and High Courts. The collegium can veto the government if the names are sent back by the latter for reconsideration.
• The basic tenet behind the collegium system is that the judiciary should have primacy over the government in matters of appointments and transfers in order to remain independent.

Evolution of the Collegium system:

1.First Judges Case (1981):

It declared that the “primacy” of the Chief Justice of India (CJI)’s recommendation on judicial appointments and transfers can be refused for “cogent reasons.” The ruling gave the Executive primacy over the Judiciary in judicial appointments.

2.Second Judges Case (1993):

SC introduced the Collegium system, holding that “consultation” (of CJI) really meant “concurrence”. It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC.

3.Third Judges Case (1998):

SC on President’s reference expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

Criticisms of the collegium system:

• However, over time, the collegium system has attracted criticism, even from within the judicial institution, for its lack of transparency. It has even been accused of nepotism.
• The government’s efforts to amend the Constitution and bring a National Judicial Appointments Commission (NJAC) was struck down by a Constitution Bench.
• The collegium system is also an extra-constitutional mechanism which is contrary to what the constitution makers of India envisaged. It violates the principle of natural justice by allowing for conflict of interest whereby one organ of the State is completely in control of its own , and there is no practical and feasible way of check and balance.

About NJAC and the 99th Constitutional Amendment Act, 2014:

• NJAC was envisaged as a body responsible for the appointment and transfer of judges to the higher judiciary in India. NJAC gave the executive a say in appointing the judges, while dismantling the collegium system.
• A new article, Article 124A, (which provides for the composition of the NJAC) was to be inserted into the Constitution.

SC strikes down NJAC:

• Supreme Court held that both the Constitution (Ninety-ninth Amendment) Act, 2014, and the National Judicial Appointments Commission (NJAC) Act, 2014, were unconstitutional as it would undermine the independence of the judiciary.
• The majority said the two laws affect the independence of the judiciary, and judicial appointments, among other things, should be protected from executive control.

Method of judicial appointments to the Supreme Court

• Currently, the appointment of the CJI and judges of the apex court is governed by a Memorandum of Procedure. The CJI and the judges of the Supreme Court are appointed by the President under clause (2) of Article 124 of the Constitution.
• The appointment to the office of the CJI should be of the senior most judge of the Supreme Court considered fit to hold the office. The Union Law Minister would, at an “appropriate time”, seek the recommendation of the outgoing CJI on his successor. Once the CJI recommends, the Law Minister forwards the communication to the Prime Minister who would advise the President on the appointment.
• In the case of an appointment of a Supreme Court judge, when a vacancy is expected to arise in the apex court, the collegium would recommend a candidate to the Union Law Minister. The CJI would also ascertain the views of the senior most judges in the Supreme Court, who hail from the High Court from where the person recommended comes from.
• The opinions of each member of the Collegium and other judges consulted should be made in writing and form part of the file on the candidate sent to the government. If the CJI had consulted nonjudges, he should make a memorandum containing the substance of consultation, which would also be part of the file.
• After the receipt of the Collegium recommendation, the Law Minister would forward it to the Prime Minister, who would advise the President in the matter of appointment.

Judicial appointments and status of case pendency in the Supreme Court

•  The increase in the number of judges has not guaranteed lower pendency of cases in the apex court over the years. The number of pending cases has risen to 71,411 as on August 1, 2022 from a little over 55,000 in 2017. This is despite the fact that the sanctioned judicial strength of the court was increased to 34 judges in August 2019.
• A steady rise in arrears regardless of the periodic increase in judicial strength has been a constant phenomenon since 1950. In 1950, the Supreme Court had eight judges and a pendency of 100plus cases.
• In 1986, there were 26 judges in the Supreme Court while pendency increased to 27,881.
• In 2020 and 2021, the pandemic added to the pendency rate in the apex court. The year 2020 ended with a backlog of 64,426 cases and 2021 with 69,855 cases.

Way forward: addressing judicial logjam:

1. Revise national litigation policy and promote alternative dispute resolution mechanisms: mediation, conciliation etc
2. Review collegium system and bring in executive role in judicial appointments
3. Judicial capacity should be strengthened in the lower courts to reduce the burden on higher courts.
4. Invest in judicial infrastructure: court buildings, computers etc
5. Improve courts case management and court automation system.
6. Create subject-specific benches
7. Fast track courts
8. Increased number of working days;
9. Establishment of Indian Courts and Tribunal Services to focus on the administrative aspects of the legal system;
10. Deployment of technology to improve efficiency of the courts, e.g. e-Courts Mission Mode Project and the National Judicial Data Grid being rolled-out in phases by the Ministry of Law and Justice.

Conclusion:

In order to reduce court cases pendency, a thorough Judicial Reform is required, including in mode of judicial appointments.

The Great Barrier Reef’s recovery and vulnerability to climate threats

Context:

• The highest levels of coral cover, within the past 36 years, has been recorded in the northern and central parts of Australia’s Great Barrier Reef (GBR), according to the annual long term monitoring report by the Australian Institute of Marine Science (AIMS).
• The researchers behind the report have warned, however, that this could be quickly reversed owing to rising global temperatures. This came after the reef experienced a mass coral bleaching event in March this year.

Background:

Coral reefs:

• Corals are marine invertebrates or animals which do not possess a spine. They are the largest living structures on the planet. Each coral is called a polyp and thousands of such polyps live together to form a colony, which grow when polyps multiply to make copies of themselves.
• Corals are an example of symbiotic relationship between 2 species: the cnidarian Coral polyp and the microscopic algae Zooxanthellae.
• The algae prepares food for corals through photosynthesis and also gives them their vibrant colouration while the polyp provides the algae with a solid substrate to grow on.

Types of corals:

Corals are of two types — hard corals and soft corals.

• Hard corals extract calcium carbonate from seawater to build hard, white coral exoskeletons. Hard corals are in a way the engineers of reef ecosystems and indicate the condition of coral reefs.
• Soft corals attach themselves to such skeletons and older skeletons built by their ancestors. Soft corals also add their own skeletons to the hard structure over the years. These growing multiplying structures gradually form coral reefs.

Coral bleaching:

• When exposed to conditions like heat stress, pollution, or high levels of ocean acidity, the zooxanthellae start producing reactive oxygen species not beneficial to the corals.
• So, the corals kick out the colour giving algae from their polyps, exposing their pale white exoskeleton and leading to coral starvation as corals cannot produce their own food. This is called coral bleaching which causes mass destruction of reef systems.

Great Barrier Reef (GBR):

• Australia’s Great Barrier Reef is the world’s largest reef system stretching across 2,300 km and having nearly 3,000 individual reefs.
• It hosts 400 different types of coral, gives shelter to 1,500 species of fish and 4,000 types of mollusc.
• Coral reefs support over 25% of marine biodiversity even as they take up less than 1% of the seafloor. This is why coral reefs are also called at Marine Rainforests of the world.
• The marine life supported by reefs further fuels global fishing industries. Besides, coral reef systems generate $2.7 trillion in annual economic value through goods and service trade and tourism.
• GBR is also a UNESCO World Heritage Site (WHS).

Findings of the Report:

• The AIMS report states that reef systems are resilient and capable of recovering after disturbances such as accumulated heat stress, cyclones, predatory attacks and so on, provided the frequency of such disturbances is low.
• The new survey shows record levels of region wide coral cover in the northern and central GBR since the first ever AIMS survey was done.
• The record levels of recovery, the report showed, were fuelled largely by increases in the fast growing Acropora corals, which are a dominant type in the GBR.
• Incidentally, these fast growing corals are also the most susceptible to environmental pressures such as rising temperatures, cyclones, pollution, crown of thorn starfish (COTs) attacks which prey on hard corals and so on.
• Also, behind the recent recovery in parts of the reef, are the low levels of acute stressors in the past 12 months — no tropical cyclones, lesser heat stress in 2020 and 2022 as opposed to 2016 and 2017, and a decrease in COTs outbreaks.

Role of climate change in coral death:

• Over the last couple of decades, climate change induced rise in temperature has made seas warmer than usual. Under all positive outlooks and projections in terms of cutting greenhouse gases, sea temperatures are predicted to increase by 1.5°C to 2°C by the time the century nears its end.
• According to the UN assessment in 2021, the world is going to experience heating at 1.5°C in the next decade, the temperature at which bleaching becomes more frequent and recovery less impactful.
   

Mass bleaching events:

• In the past decade, mass bleaching events have become more closely spaced in time. The first mass bleaching event occurred in 1998 when the El Niño weather pattern caused sea surfaces to heat, causing 8% of the world’s coral to die. The second event took place in 2002. But the longest and most damaging bleaching event took place from 2014 to 2017. Mass bleaching then occurred again in 2020, followed by earlier this year.
• According to the Australian government’s scientists, 91% of the reefs it had surveyed in March were affected by bleaching. Notably, half of the total reefs were surveyed before the peak of this year’s mass coral bleaching event in the GBR.
• The AIMS report says that the prognosis for the future disturbance suggests an increase in marine heatwaves that will last longer and the ongoing risk of COTs outbreaks and cyclones.

Conclusion:

Hence the current coral reef recover in GBR is a news of cautious optimism. The reefs are not yet out of the woods. Countries across the world must make united efforts to reduce level of global warming in order to give a chance to the world’s ‘marine rainforests’ .