Editorial 1: A reminder about unfettered constitutional posts
Context
- Two recent comments of the Supreme Court of India will have direct bearing on the concept of the independence of various constitutional authorities in India:
- In a hearing of the ‘Sena versus Sena’ case, the Court expressed its “serious concern” over the active role being played by Governors in State politics, observing that Governors becoming part of political processes is disconcerting.
- And, earlier, taking an important step in ensuring independence of the Election Commission of India (ECI), the Court divested the executive of its sole discretion in appointing the Chief Election Commissioner (CEC) and Election Commissioners (ECs) by forming a committee to suggest suitable names to man these constitutional posts.
Constitutional bodies of India
- A Constitutional body is a body or institute established by the Constitution of India. They can only be created or changed by passing a constitutional amendment bill, rather than an Act of Parliament. Constitutional bodies derive their powers and authorities from the Constitution of India.
- India’s democracy provides for various constitutional authorities such as the Public Service Commission, the Comptroller and Auditor General of India (CAG), the ECI, the Finance Commission and the National Commissions for Scheduled Castes (SC), Scheduled Tribes (ST) and Backward Classes (BC), etc.
Need for such institutions
- A democracy requires a system of checks and balances to prevent the arbitrary use of power by the elected government of the day. So the Constituent Assembly of India had recognised the need for such independent institutions to regulate sectors of national importance without any executive interference
- It is necessary that such constitutional bodies are provided with complete independence to enable them to function without fear or favour and in the larger interests of the nation.
Appointments of various constitutional posts
- The Constitution-makers have used simple words such as ‘shall be appointed by the President’ in the appointment of—
- Prime Minister (Article 75),
- Attorney-General for India (Article 76),
- Chairman and other members of the Finance Commission (Article 280),
- Chairman and other members of the Public Service Commission (Article 316) and
- Special Officer for Linguistic Minorities (Article 350B).
- Article 324 provides that the President will appoint the CEC and ECs ‘subject to any law made in that behalf by Parliament’.
- However, the words ‘shall be appointed by the President by warrant under his hand and seal’ are used while authorising the President for appointment of—
- Judges of Supreme Court and the High Court (Articles 124 and 217)
- CAG (Article 148)
- Governor (Article 155)
- Similar words have been used in Articles 338, 338A and 338B authorising the President for appointing Chairman and members of the National Commissions for SCs, STs and BCs.
N. Gopalaswami and Ors vs The Union of India
- The Supreme Court has held in the case that the President acts on the aid and advice of the Council of Ministers, with the Prime Minister as the head in all matters which vests in the executive.
- However, in cases where the appointment of a particular constitutional authority is to be kept independent of the executive, the question arises whether such an interpretation would be in line with the thinking which prevailed during the relevant Constituent Assembly debates.
‘By warrant under his hand and seal’
- In the draft Constitution, the article for appointment of the CAG (Article 124) had provided that ‘There shall be an Auditor General who shall be appointed by the President ....’ While moving an amendment to this Article “That in clause (1) of Article 124 after the word ‘Present’ [‘President’] the words ‘by warrant under his hand and seal’ be inserted”, the Constituent Assembly had discussed that “the Auditor-General, like the Chief Justice of the Supreme Court, is to be appointed by the President and therefore it is essential that the words ‘by warrant under his hand and seal’ should be introduced”
- The changes were made because the Auditor-General should be always independent of either the legislature or the executive. He is the watch-dog of our finances, his position must be made so strong that he cannot be influenced by anyone.
A special status
- It is pertinent to keep in mind that the Constitution affixes the phrase “by warrant under his hand and seal” only to refer to appointment to positions (Judges, the CAG and the Governors) where it assigns a special status to distinguish them from other constitutional positions.
- Constitutional authorities such as the Judges of the Supreme Court and the High Court and the CAG of India are to be kept free from political or executive pressure.
- Whereas appointment of judges and the ECs have been made free from the influence of the executive, the need to set up a well-defined criteria and procedure for the appointment of the CAG of India remains keeping in view the intention of the framers of the Constitution.
Way forward
- The process of selecting a person to be appointed as the CAG of India should begin by appointing a committee consisting of the Speaker of the Lok Sabha, the Chief Justice of India, and the Chairman of the Public Accounts Committee to shortlist names to be considered for appointment as the CAG of India; and a panel of three names should be forwarded to the President for him to make the final selection as in Article 148 of the Constitution of India.
Editorial 2: Myriad woes: The only solution for Myanmar’s troubles is the restoration of democracy
context
- Myanmar’s military, notorious for its attacks on civilians, recently carried out air strikes on an opposition gathering in the rebel-held Sagaing region, killing over 100, including women and children. The Myanmar military grabbed power in a coup last year– the third time in the nation’s history since its independence from British rule in 1948.
India-Myanmar
- Myanmar is one of India’s strategic neighbours and shares a 1640 km long border with north-eastern states of Arunachal Pradesh, Nagaland, Mizoram and Manipur.
- India has “historical ties and traditional bonds of friendship and cooperation” with Myanmar Five Bs are the base of India-Myanmar relations – Buddhism, Business, Bollywood, Bharatnatyam and Burma teak.
- India attaches its partnership with Myanmar in accordance with its ‘Neighborhood First’ and ‘Act East’ policies
Why Myanmar is important for India
- The strategic location of Myanmar is beneficial for India’s economic engagement as well as physical and social connectivity.
- For India, Myanmar is key in linking South Asia to Southeast Asia and it becomes the focal point for New Delhi’s regional outreach.
- To connect and develop India’s Northeast
- As part of India’s SAGAR Vision, India developed the Sittwe port in Myanmar’s Rakhine state.
- The port is meant to be India’s answer to the Chinese-fronted Kyaukpyu port, which is intended to cement China’s geostrategic footprint in Rakhine.
Challenges for India
1. China’s Influence on Northeast Insurgency:
- China’s economic grip over Myanmar has become tighter with a special focus on projects critical for the China-Myanmar Economic Corridor.
- The recent deadly attack on an Assam Rifles convoy near the Myanmar border was a reminder about the proclivity of China for creating trouble in the Northeast.
2.Rohingya Issue:
- Aung San Suu Kyi’s silence on the Rohingya crisis in Myanmar has only led to the plight of the hapless Rohingya take a backseat. This is not in India’s national security interest in the north-east.
3. Porous Indo-Myanmar Border:
- The 1643-km-long Indo-Myanmar border, which facilitates cross-border movement of militants, illegal arms and drugs, is extremely porous and provides cover to the activities of various Indian Insurgent Groups (IIGs).
4. Military coup:
Myanmar has been in turmoil since February, 2021 when the military seized control of the country in a coup and detained Aung San Suu Kyi and other leaders of her National League for Democracy (NLD).
Cooperation between India and Myanmar
1. ASEAN
- Myanmar became a member of ASEAN in July 1997. As the only ASEAN country which shares a land border with India, Myanmar is a bridge between India and ASEAN.
2. BIMSTEC
- It became a member of BIMSTEC in December 1997. Myanmar is a signatory to its Free Trade Agreement (FTA). Myanmar is the lead country for the energy sector. Myanmar trades mostly with Thailand and India in the BIMSTEC region.
- Myanmar’s major exports to India are agricultural products like beans, pulses and maize and forest products such as teak and hardwoods. Its imports from India include chemical products, pharmaceuticals, electrical appliances, and transport equipment.
3. Mekong Ganga cooperation
- Myanmar has been a member of the Mekong Ganga Cooperation (MGC) since its inception in November 2000. MGC is an initiative by six countries – India and five ASEAN countries namely, Cambodia, Laos, Myanmar, Thailand, and Vietnam – for cooperation in the fields of tourism, education, culture, transport, and communication.
India’s demands:
- Myanmar’s return to democracy at the earliest.
- Release of detainees and prisoners.
- Resolution of issues through dialogue.
- Complete cessation of all violence
- India is supporting ASEAN initiative on Myanmar and the ‘Five-Point Consensus
Way forward:
- The Association of Southeast Asian Nations (ASEAN) proposal of the five-point peace plan, urging an end to hostilities and starting inclusive dialogue. But the generals have refused to talk to the opposition and are not ready to share power.
- A peaceful resolution in Myanmar is essential for the stability of Southeast Asia, and, hence, ASEAN and regional powers such as Russia, China and India should not see the civil strife as an internal problem of Myanmar. They should use their economic and political clout to force the generals to stop the violence and enter into talks with the opposition.
Conclusion:
- The only sustainable, long-term and just solution for Myanmar’s myriad woes is the restoration of its democracy under a federal constitutional order. The first step to achieve this goal is to end the violence.