Editorial 1: Constitutional oath is not a mere formality
Context:
- The recent controversy over the elevation of Justice Victoria Gowri has put into focus the issue of judicial appointments and constitutional oath.
Constitutional provisions:
- Constitution is the basic law that lays the foundation for the governance of a country. It lays down broad policy/directives for the authorities and institutions tasked with its implementation. Basic eligibility criteria for appointment to several high constitutional offices are prescribed in the Constitution.
- Yet, many silent disqualifications operate. These are implied and read into the eligibility criteria by courts, solely guided by the objective of upholding the Constitution and the law and the integrity of the institution for which the functionary is chosen.
- Fort example, in B.R. Kapur case (2001), the Governor’s appointment of Jayalalithaa as Chief Minister despite her conviction for a criminal offence was called in question.
- Article 164(1) of the Constitution does not prescribe any disqualification for the appointment of a Chief Minister. Article 173, however, disqualifies a person with prior conviction from being a member of the Legislature.
- The court was confronted with the question of whether it could import a disqualification for a person being appointed as a Chief Minister, when none was prescribed. The Supreme Court said yes.
- It held, “The will of the people as expressed through the majority party prevails only if it is in accord with the Constitution. The Governor... is sworn to preserve, protect and defend the Constitution and the laws (Article 159). The Governor cannot... do anything that is contrary to the Constitution and the laws.” The Governor’s act of administering oath to Jayalalithaa after her conviction was declared unconstitutional.
Constitutional oath :
- The oath to be taken by a judge of a High Court under Schedule III of the Constitution requires a declaration of allegiance to the Constitution and performance of duties “without fear or favour, affection or ill-will”. The appointee must also declare that she will “uphold” the Constitution and the laws.
- Such an oath is unique to the judges of the High Court and the Supreme Court, since they are the sentinels of the Constitution. The oath is a solemn assurance to the people that justice will be rendered without any bias.
- “Does not a person who has shown religious bigotry become disabled from discharging the oath of office of a judge? Will such disability fall within the realm of mere suitability or essential eligibility?”, ask Devika et al in a recent editorial in The Hindu.
Instances of not adhering to constitutional oath and resulting disqualifications:
- “Eligibility of a judge of a High Court should not be construed in a pedantic manner,” declared the Supreme Court in N. Kannadasan v. Ajoy Khose case (2009).
- An additional judge of the High Court was later recommended by the then Chief Justice of the Madras High Court for appointment as president of the State Consumer Commission. The appointment was declared illegal by the Supreme Court, which held that an independent and impartial judiciary should be manned by persons who dispense justice “without fear or favour, ill-will or affection.”
Selection of judges
- To limit ‘eligibility’ for appointment of a High Court judge to a minimum of 10 years of legal practice prescribed in Article 217(2) makes a mockery of the integrity and independence of the judiciary. Such a facile reading turns the solemn assurance of an impartial and fair judiciary into a hollow promise.
- Faced with opacity in judicial appointments/ transfers, the Supreme Court in S.P. Gupta v. Union of India (1981) directed the Government and the Chief Justice of India (CJI) to disclose all the materials. The judges held that their constitutional duty demanded such scrutiny through judicial review. They also held that if on scrutiny it was found that all the materials were not before the CJI (now collegium), the consultation/ selection process is defective and invalid.
- The events leading up to the pronouncement of the Supreme Court regarding the selection of Justice Victoria Gowri reveal the fault lines between the government and the judiciary. The selection process came under a cloud once the CJI expressed in open court that materials now brought before the collegium were not available earlier.
- The collegium relies on the government’s agencies to produce background materials of persons recommended to be judges. Transparency and accountability in the selection of judges alone will ensure an independent judiciary.
Conclusion:
- The higher judiciary and the union executive must come on the same page regarding transparency in judicial appointments. One of the necessary criteria for the same is to
Editorial 2: Hill or city, urban planning cannot be an afterthought
Introduction:
- In 2009, a tunnel boring machine in Joshimath, Uttarakhand, hit an aquifer about near Selang village that resulted in the loss of nearly 800 litres of water per second (enough to sustain the needs of nearly 30 lakh people per day). Soon after, groundwater sources began drying up even as the water flow reduced but never stopped. Meanwhile, Joshimath has no system to manage wastewater. Instead, the large-scale use of the soak-pit mechanism could exacerbate land sinking. Ongoing infrastructure projects (the Tapovan Vishnugad dam and the Helang-Marwari bypass road) may also worsen the situation.
The problem in hilly urban India
- Land subsidence incidents in hilly urban India are becoming increasingly common —an estimated 12.6% of India’s land area is prone to landslides, especially in Sikkim, West Bengal and Uttarakhand. Urban policy is making this worse, according to the National Institute of Disaster Management (and highlighted in the National Landslide Risk Management Strategy, 2019).
- Construction in such a landscape is often driven by building bye-laws that ignore local geological and environmental factors. Consequently, land use planning in India’s Himalayan towns and the Western Ghats is often ill-conceived, adding to slope instability. As a result, landslide vulnerability has risen, made worse by tunnelling construction that is weakening rock formations.
- Acquiring credible data is the first step toward enhancing urban resilience with regard to land subsidence. The overall landslide risk needs to be mapped at the granular level. The Geological Survey of India (GSI) has conducted a national mapping exercise. Urban policymakers need to take this further.
- Areas with high landslide risk should not be allowed to expand large infrastructure; there must be a push to reduce human interventions and adhere to carrying capacity. Aizawl, Mizoram, is in ‘Seismic Zone V’, and built on very steep slopes. An earthquake with a magnitude greater than 7 on the Richter scale would easily trigger over 1,000 landslides and cause large-scale damage to buildings.
The updated Seismic Zones of India map
- But the city has developed a landslide action plan, with updated regulations to guide construction activities in hazardous zones. The city’s landslide policy committee is cross-disciplinary in nature, seeking inputs from civic society and university students, with a push to continually update risk zones.
- Further, any site development in hazardous zones needs assessment by a geologist (with respect to soil suitability and slope stability) and an evaluation of its potential impact on buildings that are nearby. It may need corrective measures (retention walls), with steps to prohibit construction in hazardous areas.
- In Gangtok, Sikkim, the Amrita Vishwa Vidyapeetham has helped set up a real-time landslide monitoring and early warning system, with sensors assessing the impact of rainfall infiltration, water movement and slope instability.
Rising flood risk
- Flood risk is the second issue. Floods in Panjim, Goa, in July 2021, led to local rivers swelling and homes being flooded, leaving urban settlements along the Mandovi affected. Again, urban planning was the issue; the city, built on marshlands, was once home to mangroves and fertile fields, which helped bolster its flood resilience.
- In Delhi, an estimated 9,350 households live in the Yamuna floodplains, while a UN Intergovernmental Panel on Climate Change (IPCC) report of 2022 has highlighted the risk Kolkata faces due to a rise in sea levels. The combination of poor urban planning and climate change will mean that many of India’s cities could face devastating flooding.
(Flood prone areas of India)
Flood-proofing India’s cities
- It will require multiple measures: urban planners will have to step back from filling up water bodies, canals and drains and focus, instead, on enhancing the following:
- Sewerage and stormwater drain networks.
- Rivers that overflow need to be desilted regularly along with a push for coastal walls in areas at risk from sea rise.
- Greater spending on flood-resilient architecture (river embankments, flood shelters in coastal areas and flood warning systems) is necessary.
- Protecting “blue infra” areas, i.e., places that act as natural sponges for absorbing surface runoff, allowing groundwater to be recharged, is a must.
- As rainfall patterns and intensity change, urban authorities will need to invest in simulation capacity to determine flooding hotspots and flood risk maps.
Way forward:
- Urban India does not have to embrace such risks. Instead, cities need to incorporate environmental planning and enhance natural open spaces. Urban master plans need to consider the impact of climate change and extreme weather; Bengaluru needs to think of 125 mm per hour peak rainfall in the future, as against the current 75 mm. Urban authorities in India should assess and update disaster risk and preparedness planning. Early warning systems will also be critical.
- Finally, each city needs to have a disaster management framework in place, with large arterial roads that allow people and goods to move freely. India’s urban journey is not limited to an election cycle. It must plan for a multi-generational process.