The Hindu Editorial Analysis
02 April 2021

1) Stop the Ambassadorships for sale

 

U.S. President Joe Biden faces a new challenge as the demand for not appointing donor ambassadors gains momentum

GS 2: International Relations


CONTEXT:

Now that U.S. President Joe Biden is in the process of filling up thousands of high-level posts, and the Senate has begun considering the various names for confirmation, the ambassadorial aspirants, who had paid money to the party, have also begun to assert their claims.

Ambassadors In US

  • Ambassadors act as the diplomatic representatives of their country abroad. In the United States, ambassadors are appointed to represent the office of the President in foreign nations. The title comes with a number of duties and responsibilities, including conducting foreign relations, crafting international policies, spearheading negotiations, and aligning on economic conditions such as trade

How to become Ambassador

  • Earn a relevant bachelor’s degree
  • Earn a graduate degree.
  • Gain work experience
  • Take the Foreign Service Officer exam
  • Receive appointment

 

How US President Appoints Ambassador:

  • Constitutional Way
    • The appointments have solid backing of the U.S. Constitution. Article II provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ambassadors
    • The President enjoys wide latitude in selecting a nominee and the Senate is comparably free to choose whether to advise and consent
    • The onus for the quality and integrity of the nominees rests on the President, but the Senate has the right to hold back confirmation of any nominee, including career diplomats.
  • Money Counts
    • The Presidents of the United States appoint ambassadors out of those who have paid big financial contributions to their respective party.
    • The qualification is not knowledge of history or geography, but the weight of the money bags deposited
    •  This is part of the ‘spoils system’, except that, over the years, a price tag has been fixed for ambassadorships
    • Mr. Biden has appointed Linda Thomas-Greenfield, a retired career diplomat as Ambassador to the United Nations and she has been confirmed by the Senate, but many heavy contributors are waiting in the wings
  • Entrenched as a ‘tradition’
    • In 1980, a decision was taken that most ambassadors should be career foreign service officers
    • Still, succeeding Presidents have filled from a minimum of 30% to a maximum of 57% (under Mr. Trump) of the posts with donors. Since such a tradition has been established, Mr. Biden may not be able to stop it either.
  • Complicated Process
    • The Senate confirmation is quite a complicated process in which the investigating agencies examine their entire past to see whether they have ever been guilty of any misdemeanour, which disqualifies them for the high appointment
  • Examples of this Donor Ambassador
    • Indian-American having been considered as Ambassador to Fiji and some other Pacific island states but who had to withdraw his nomination after the FBI had communicated to him that it would be in his interest to withdraw rather than face an investigation into his past.
    • A rich businessman from Buffalo, who had apparently paid a huge sum for the U.S. Presidential campaign

Indian Way: 

  • India has a more sophisticated system of appointing “political” ambassadors, not for donation to political parties, but as an avenue to recognise and reward talent.
  • Till very recently, career diplomats could not aspire to ambassadorial posts in London, Washington or Moscow as distinguished people from different walks of life were appointed to add weight to the positions
  • India has had some very distinguished and successful political ambassadors, who had access to the Prime Minister back home and to high levels in the host countries. Examples are three political ambassadors in Moscow (Dr. K.S. Shelvankar, D.P. Dhar and I.K. Gujral) and one in Washington (Naresh Chandra); all of them fulfilled certain criteria set by the Government, which included greater acceptability of political ambassadors in major capitals.
  • The most celebrated political ambassador was Kushok Bakula Rinpoche, a Buddhist monk from Ladakh, who was appointed to Mongolia
  • But now, the number of political ambassadors is small, if at all, and the senior posts are open to career diplomats.

Conclusion

  • Diplomacy is not considered a profession for specialists, a notion as ridiculous as appointing a politician as the Surgeon General or a General.
  • Career ambassadors are occupying those posts which were considered political in nature. But the practice continues in many countries because of the general feeling that long careers in the Foreign Service are not necessary to be effective ambassadors.

     

2) An Act of colourable legislation

                                                       

Enactment of the Places of Worship Act, 1991 in its current format damages the liberty of belief, faith and worship to all

 

GS 2: Secularism.

Context

  • Public interest litigation (PIL) in the Supreme Court (WP(C) 619 of 2020, which was filed earlier but notice was issued later vide order of the Supreme Court dated March 26, 2021), challenged Sections 3 and 4 of the Places of Worship Act, 1991 being unconstitutional, void ab initio, and against the Basic Structure of the Constitution of India.

Places of Worship Act, 1991

  • Passed by P V Narasimha Rao-led government in 1991
  • Section 3:- bans the conversion of a place of worship or even a section of it into a place of worship of a different religious denomination or of a different segment of the same religious denomination.
  • Section 4(2):-  all suits, appeals or other proceedings regarding converting the character of a place of worship (that were pending on 15th August, 1947) will come to end when the Act commences and no fresh proceedings can be filed.
    • However, legal proceedings can be initiated if the change of status took place after the cut-off date of 15th August, 1947 (after enactment of the Act).
  • Section 5:- nothing in the Act shall apply to any suit, appeal or other proceedings relating to the said place or place of worship, i.e. the Ram-Janmabhoomi-Babri Masjid situated in Ayodhya, in the State of Uttar Pradesh.

Why PIL now?

  • Act violates secularism.
  • The cut-off date of 15th August, 1947 is “arbitrary, irrational and retrospective” and prohibits Hindus, Jains, Buddhists, and Sikhs from approaching courts to “reclaim” their places of worship which were “invaded” and “encroached” upon by “fundamentalist barbaric invaders”.
  • Centre has no power to legislate on “pilgrimages” or “burial grounds” which is under the state list.
     

Concern Over this Act:

  • The pith and substance of the Act of 1991 is that it is ultra vires the fundamental rights enshrined in the Constitution since it bars the jurisdiction of the Supreme Court and furthermore nullifies the Fundamental Right(s) guaranteed by the Constitution of India as elucidated in Article 32 of “enforcement of fundamental rights” which cannot be suspended except as otherwise stated in the Constitution.
  • SC, on various instances, ruled that the jurisdiction conferred on the SCunder Article 32 and on the High Courts under Article 226 of the Constitution that “the power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the powers of the Constitutional Courts with regard to the enforcement of fundamental rights”
  • The Act of 1991, is appropriately called an Act of colourable legislation. As the Courts have held, “you cannot do indirectly which you are prohibited from doing directly”
  • The Preamble in the Constitution gives prominent importance to liberty of belief, faith and worship to all citizens, and the same is sought to be weakened and effectively nullified or severely damaged by the enactment of the Act of 1991 in its current format.
  • The intent of the Act of 1991 under Section 5, i.e. exception extended to the “Ram-Janmbhoomi matter” identifies the need and importance of resolution of such a controversy and settling long on-going disputes before the courts. But such an exception should be made for other two matters of dispute stated above.

Other Disputes

  • Gyanvapi Kashi Vishwanath Temple in Varanasi
  • The Krishna Janmabhoomi Temple in Mathura

Conclusion:

  • Hence, by the doctrine of casus omissus, the Supreme Court can in an appropriate case before it order that the number of exceptions in Section 5 of the Places of Worship Act, 1991, be three as an alternative solution.
  • The Supreme Court under Article 142 of the Constitution can pass any order to carry out for doing complete justice being in the public interest, while upholding the Constitution of India.