NJAC: The cure may do more harm than good

(Published in The News Minute on 19.08.2014)

The National Judicial Appointments Commission (NJAC) and the Constitution Amendment Bill which aims to replace the controversial collegium system that selects the judges to the Hon'ble Supreme Court and High Courts, has been passed by both houses of the Parliament. What remains for the bill to become an act are the resolutions to this effect by more than 50% of the states and the assent of the President. But there are certain pertinent issues that need to be considered. 

Much of the hue and cry from among the judicial quarters comes down to one moot point - the absence of majority in the Commission for the judicial members. The Commission comprises the Chief Justice of India, two judges of the Hon'ble Supreme Court, the Union Law Minister and two eminent persons. The members from the judiciary (three in number) and the others have an equal strength. From the collegium system, wherein the total power for selection of judges was vested in the hands of the judges themselves, the NJAC reduces the power of the judiciary to half. A considerable section of the judiciary sees this as a blatant attempt by the legislature to clip the wings of an independent judiciary. 

Many voices raise concern that the phrase 'eminent person' has not been elucidated in the Bill. From the bar, some raise concern that they have not been represented in the NJAC, which, to my mind, is a justifiable concern.  

Section 5 (2) of the Bill as passed in the Lok Sabha is dreadful. It reads: '... Provided further that the Commission shall not recommend a person for appointment if any two members of the Commission do not agree for such recommendation.' 

It is here that the attempt to pierce through the independence of the judiciary is most conspicuous. This clause mandates, in other words, that from among the 6 members of the Commission, minimum 5 should agree to the name of a candidate if he/she is to be offered judgeship, i.e., a whopping 83.33%. Not only is this way above a simple majority (51% or more), but also of a special majority as is needed in the Parliament (67% or more) to amend/pass certain special legislations. This clause makes it clear that a candidate cannot be offered judgeship even if the CJI, the two Judges in the Commission and one more member agrees to his/her candidature. The power of veto that is provided in the Bill is grossly overweening. 

Another important concern is that the Bill remains silent on the transparency of decision making by the NJAC. The raison detre of the NJAC is the lack of transparency in the existing collegium system. Merely by diversifying the members who select/reject the candidates for judgeship, transparency does not come in. 

Would the NJAC entertain RTI applications that seek to know the grounds on which a particular candidate was selected/rejected? Or would the process of selection be carried out as if in an open courtroom where any one interested can witness the proceedings? If either of the two is not incorporated, the constitution of the NJAC will make no much difference vis-a-vis the transparency of existing collegium system. Not just that, it will make a mockery of the institutions of such high regard as the Judiciary and the Legislature. The government has very conveniently stayed silent on these important points. 

It is to be seen whether the guidelines as will be laid down by the Commission will include in it the above mentioned, or similar, measures for bringing in transparency and accountability. Further, if it does, it should be seen whether the Parliament would pass the guidelines with the same level of interest as it had shown in passing the NJAC Bill. Only then will one be able to understand the true intention of the legislators while they passed this Bill. 

Meanwhile, there are already 2 petitions that have been filed in the Hon'ble Supreme Court challenging the constitutional validity of the Bill. The ironical situation where the country's highest court itself sits on judgement of a petition that has been filed in order to prevent it from being caged will be worth a close watch.

Union government's solution to the UPSC row is preposterous, sets a bad precedent

(Published in The News Minute on 04.08.2014)

After long days of protests by civil service aspirants the government today has come out with its solution. The Minister of State in the Prime Minister’s Office Shri Jitendra Singh announced in the Parliament today that the marks for the English section in the civil service preliminary examination will not be included for gradation or merit.

Though the demands by the protesting civil service aspirants were more than one, the government has, for the moment, attended to just one, and the most sensitive – that related to the language. The protests were largely focussed on the first of the three levels of the civil service examination – the General Studies Preliminary examination, commonly known as the CSAT. The concerns were that the questions based on quantitative aptitude, logical reasoning, etc. were favouring those candidates who had graduated in Science than humanities; the English language questions were of high level and that the Hindi translation of the questions that are asked in English were improper. The protests itself, in my view, were unjustified (Read - http://www.thenewsminute.com/news_sections/870).

Shri Yogendra Yadav, a former member of the Universities Grants Commission and now the Chief Spokesperson of the AAP, who is also a sympathiser of the protests, had in his article in the Indian Express (http://indianexpress.com/article/opinion/columns/and-the-winner-is-english/99/) opined that the language question laid ‘at the heart of the current controversy’ and stated that the students ‘have not raised objections’ to the qualifying paper in English in the Main examination of the civil service. He said that the agitation is ‘not against English but against the dominance of English’ in the examination and that hence the demand for a better translation was ‘not a small detail.’

Instead of introducing a better way for translation, the government has jumped over the issue altogether. The proposed solution is just a balm; it does not cure the disease. It has now taken the energy out of the questions based on language. If those questions are not considered for grading, they remain a mere time waste. Why should one even bother to attend those eight to ten questions? Instead, why doesn’t the government ask the UPSC to just remove these questions?

The government had to make this hasty decision only because the protesting aspirants had intensified their struggle – they attempted to torch a police post, they blocked rail tracks, (yes, they are IAS/IPS aspirants of tomorrow) they protested in front of the Home Minister’s bungalow.

 What if they still protest? Remember, only one of their demands has been met. What if they intensify their protests demanding that the questions based on quantitative aptitude, logical reasoning, etc., too, not be calculated for grading? Will this government make exclude those questions from gradation or  merit?

The government has erred woefully. The Arvind Verma committee that had been set up to review the pattern of the civil service examination had suggested no changes be made to the current pattern. The committee’s recommendation has been thrown into the winds. On the other hand, the government has not managed to come out with a sound strategy for the conduct of the exam on its own. Such demands to lower the difficulty level of a competitive examination should never have arisen. The protests were unjustified; the solution that has been put forth is preposterous.  A simple and effective solution would have been to announce that the translation of questions shall be done in a proper manner. The government so as to further pacify the protestors have given another sop. It has announced that it will grant one more attempt to the aspirants who appeared in the 2011 examination. The protesting aspirants themselves are not satisfied with the solution. Nor have political parties that backed them.  

The moral of the episode is that if a 1,000 of 4,00,000 aspirants of any examination, a paltry 0.25 percentage, protest demanding a change, however unjustified it be, the government would succumb. A very bad precedent has been set. Aspirants of all competitive examinations have been provided with a handle to seek all kinds of demands in future. Also the government in power has reduced the status of a highly respected constitutional body, the Union Public Service Commission that conducts the civil service examination.

Why protests by civil service aspirants are unjustified

Over the last few days a number of civil service aspirants have been protesting in New Delhi demanding alteration in the pattern of the preliminary examination of the civil service examination conducted by the Union Public Service Commission (UPSC). They have two main demands with regard to the second paper of the civil service preliminary examination. One, to make easier the questions that include quantitative aptitude, logical reasoning, data sufficiency, etc. Second, to do away with the English comprehension passage. Both these demands are unjustified.

The questions of aptitude, reasoning, etc. are of a very basic level. Even the banking examination conducted by the Institute of Banking Personnel and Selection (IBPS) has questions under these topics at a more difficult level. The state Public Service Commission (PSC) examinations have questions from these topics with the same difficulty level. The Common Admission Test (CAT) for admission into India’s top B-schools has questions under these topics at the highest difficulty level. Despite the Indian Civil Service examination being one of the most difficult civil service examinations in the world, the questions under these topics are much easier in this examination. Such questions are asked in every competitive examination. A demand to reduce the difficulty level of such questions should never have arisen in the first place. A candidate is expected to answer the questions that are asked. Certainly, the question setters know best the level that is expected of the candidates who are aspiring to become IAS, IPS, and other All India Service officers. 

An argument put forward by those protesting is that those candidates who belong to the Science and engineering backgrounds are at an advantageous position when such questions are asked. The argument is true but those putting forth this argument should also not forget that these students had graduated having obtained less time to prepare for the civil service examination, if at all they had started preparing during college days, than arts and commerce graduates.

The second demand that the questions of English comprehension passage be done away with is fallacious. It is so because the argument of the protesting candidates is based on the premise that the candidates from English medium schools are at an advantage vis-a-vis those from the non-English backgrounds. The questions asked in English language under this category are of class X level. Those civil service aspirants protesting demanding removal of questions of such level is ridiculous, to say the least. A person with a basic understanding of English language can answer the questions with ease. Comparing with the questions asked in the IBPS bank examination and the CAT, the questions asked in the civil service examination is much easier. Isn’t the basic knowledge of English a prerequisite for a candidate aspiring to become an All India Service officer? To those candidates who say that they are not comfortable with English of this basic level, the question to be asked is, if not now, when are they going to learn the language? How would they work in different states and in the centre without basic knowledge of English? Even if they feel that the questions in this section are difficult and amounts to a bias against the candidates from non-English backgrounds, it is to be noted that the number of questions in this section are at most 10 out of a total of 80 questions, a mere 12.5%! In the light of these points, are these protests justified?

The irony is that when some days back when there were rumours of Hindi being given more importance than other languages, most protested, and favoured continuance of the usage of English, the very language whose use is now being protested.

Another fact that needs to be highlighted is the continuous increase in the cut off marks in the preliminary examination. Whilst in 2012 the cut off was somewhere near 210, in 2013 it was 245. A rise in this magnitude was hitherto unseen. The rise in cut off mark clearly indicates that the candidates are scoring better. This by itself shows that the protests are unjustified.

Civil service examination is a competitive examination. Elimination is the main aim at every level of this examination. From over 4 lakh applicants only close to 1200 candidates are selected. The competition keeps increasing every year. Those willing to appear for the examination should be willing to rise to the expected level of the UPSC than asking them to lower the standard. Pressure groups and political parties backing the current protests should understand that they are playing with fire. By backing such protests and trying to enforce on the UPSC their demands, they are setting a wrong precedent. If this goes on, in future we may have to witness candidates appearing for the IBPS bank examination, CAT, the examinations of Charted Accountancy and the Company Secretary ship, GATE, etc. protesting demanding to set the question papers according to their demands. May better sense prevail!